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Death of due diligence?

By Mari-Len De Guzman

The Court of Appeal for Ontario recently rendered a decision in a prosecution under the Occupational Health and Safety Act (OHSA) that has broad implications for employers. 

The decision in R. v. Dofasco is very important for OHS professionals and all managers responsible for the health and safety of workers to understand and apply in setting and enforcing safe work procedures. An initial reading of the Court of Appeal’s decision may be discouraging. How, ask many employers, can we ever prove the defence of due diligence? That and other issues and implications will be reviewed as we ask, rhetorically, is R. v. Dofasco the death of due diligence?

The Dofasco case arose out of a workplace accident where a worker suffered a serious hand injury while working on a cold-rolling steel mill in the Hamilton area. The company was charged with the offence of contravening section 25 of the OHSA. Dofasco took the position at trial that there was a procedure established for safe operation of the cold-rolling steel mill. This was based on the language of section 28 of the Regulations for Industrial Establishments. The worker was required to use a hand-gripper to assist in the feeding of the steel coil into the mill. The worker knowingly failed to follow this procedure that directly caused the accident.

The trial court held that the availability of the hand-grippers would put the worker at arm’s length from any pinch points. The trial court held that there was no legal requirement for a guard on a pinch point on the cold-rolling steel mill since the workers had a procedure that amounted to an “operating control” that kept workers about 20 feet away from the steel coil. Dofasco argued that the procedure that required the worker to stay at the control booth and 20 feet away met the definition of “operating control” in section 28 of the regulation. Therefore, the trial court concluded that the Ministry of Labour had not proven the alleged contravention of section 25. An acquittal was entered and the OHSA charge was dismissed. 

The Ministry of Labour appealed, unsuccessfully, to Judge Zuraw of the Ontario Court of Justice. His Honour held on the appeal that he was unable to find any “clear and palpable error in law or fact or mixed law and fact”.  The Ministry of Labour then obtained leave to appeal to Ontario’s highest court, the Court of Appeal.

Rejected argument 
In considering four issues on the appeal, the court’s decision regarding the worker’s deliberate conduct in not following company procedure has the most important implications for employers. In other words, if you have a procedure in place, and since workers have legal duties under the OHSA to follow their employer’s safe work procedure, why does that not amount to the defence of due diligence?  Dofasco argued that it should not be held liable under section 25 where an employee is injured as a result of his deliberate failure to follow company procedure. There was no doubt from the evidence at trial that the injured worker and his co-workers did not follow company procedure on which they were trained. The Court of Appeal said very bluntly and empathetically, “We reject this argument.” 

The court rejected Dofasco’s argument for at least three reasons. Before I review those reasons, it is important to note that the court appears to have headed down the road towards “absolute liability” which negates the availability of the defence of due diligence. In the Dofasco case, the court seems to be taking away this long available defence on appeal, by misquoting one of its own decisions. The court in Dofasco said, “As such, the regulation imposes a ‘strict duty’ on the employer. This has been held to be in the nature of the obligation of an insurer and to be non-delegable:  see R. v. Wyssen …”. However, upon a closer review of that decision, its application in Dofasco is open to question.  As many readers know, the Wyssen  decision of the Court of Appeal dealt with the expanded definition of the term “employer” under the OHSA, in a window washer case, under a different regulation.  More importantly, the actual reference to the term “insurer” in Wyssen, reads as follows: 

“Section 14(1), therefore puts an “employer” virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employers or independent contractors.” 

The court in Dofasco clearly goes farther than the language of the court in Wyssen, effectively misstating the language of the prior court decision.  Whether it was that departure from Wyssen or not, that was just the beginning of the court’s review of the law of due diligence in Dofasco.   

Absolute liability 
Employers are now reasonably asking, has the law changed, and is the employer the insurer of worker health and safety? If there is an accident and a worker is injured, does that necessarily mean the employer is at fault under the OHSA?   

A thorough review of the origins of the OHSA leads me to a different conclusion. Ontario and Canadian OHS laws are based on the internal responsibility system, not on “absolute liability” injury tax model, where the mere occurrence of a workplace accident involving injury to a worker results in liability. The OHSA, with its legal duties under Part III, requires many stakeholders to share responsibility of worker health and safety, including workers.  Clearly, the Provincial Legislature did not pass the OHSA to make it an offence per se for an employer to have a worker injured at work. 

The court went on to apply its view of the OHSA to the facts of this case. First, the court said, “Employees do not deliberately injure themselves. The requirements for guarding of machinery are to protect employees in the workplace from injuries due to both inadvertent and advertent acts”. In other words, the guarding requirement is intended to protect workers from intentional and negligent actions of workers. 

Secondly, the court said, “…the worker here did not disobey the work instructions to spite or injure the employer. He did so because the work practice specified did not readily accomplish its task with light gauges of steel stock such as they were processing on the day in question …The employees could have pulled the roll of steel off the mill. That was the specified procedure, but it would have meant delays and curtailed production…the injury he suffered was a result of his deliberate act, but it was an act done in furtherance of productivity in the work undertaken for the employer and not for any other reason.”  

The court said that the worker’s disobedience was done to benefit the employer. The court appears unable to conceive the remote possibility that workers take short cuts, workers are sometimes lazy, and workers sometimes break rules to benefit themselves. Arbitral jurisprudence as well as real world experience inform of that aspect of human/worker nature. 

Thirdly, the court held that, “To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident.” This finding of the court seems to suggest that the OHSA has established a bindery system of liability, i.e. either the employer is guilty or the worker is guilty. That, of course, is inconsistent to a review of the stakeholder duties in Part III of the OHSA and the internal responsibility system. The court seems to say that since the worker’s misconduct was not the only factor causing the accident, it should have no effect to this factor. 

The court also considered and rejected the employer’s arguments regarding the interpretation of section 25 and the defence of due diligence. The court dismisses this argument by stating:  “Dofasco did not lead evidence at trial which is capable of supporting a due diligence defence.”  What exactly the court would have found necessary to prove the defence of due diligence in this case remains unclear from the judgment. In rejecting the due diligence defence, the court did not make reference to its own decision in Timminco, where it held that foreseeability of a worker’s actions is properly considered in a due diligence analysis.

In the result, the acquittal at trial was set aside, appeal allowed and a conviction registered. Dofasco was remitted to the Justice of the Peace for sentencing. Regrettably, it appears that the employer did not argue, and the court did not consider the specific legal duties of workers under section 28 of the OHSA and the equivalency provisions of the Regulations for Industrial Establishments, section 2. However, given the tone of the court’s judgment, in my opinion, it is doubtful that either point would have made a material difference. 

What then are the implications for employers in light of the decision? In my view, the court in Dofasco has applied the OHSA in a manner that compels employers to ask first if they have an occupational health & safety management system. Then, the following questions should also be answered: 

·       Does the employer have regular legislative audit of workplaces to ensure compliance with OHSA and applicable regulations with appropriate controls?

·       Has the employer trained all supervisors and managers to meet the “competent person” legal definition in Ontario’s OHSA?

·       Have written OHS safe work procedures been developed and have all workers been given adequate training on those safe work procedures and appropriate controls?

·       Is the employer consistently enforcing the safe work procedures and appropriate controls by progressive discipline of workers? 

Employers in Ontario, and across Canada, must realize that OHS laws, regulations, the courts and public opinion set high standards for worker safety Worker duties are infrequently enforced by OHS regulators. Workers who deliberately refuse or fail to follow safety procedures will likely only be held accountable by progressive discipline. Regulators rarely hold workers accountable when they clearly breach provisions of Canadian health and safety laws. 

Dofasco was very fact-specific in its determination. However, the case may be of interest for what it did not deal with as much as what it did address. For example, the court in Dofasco referenced but did not quote the test for legal defence of due diligence in the Supreme Court of Canada’s seminal case of Sault Ste. Marie. The court also did not refer to Timminco, section 28 of the OHSA, section 2 of the Industrial Establishment of Regulations or the internal responsibility system. The court did not consider the principles discussed above of the internal responsibility system.

Due diligence still lives
Although it is premature to announce the death of due diligence in Ontario, Dofasco is a sobering reminder of the high test employers must meet in establishing the defence, especially before the Court of Appeal for Ontario. 

Dofasco employers may not exclusively rely on worker misconduct to defend OHSA charges arising from a workplace incident. However, since the Supreme Court of Canada has set down the test for due diligence, it is alive and well, for the time being. Employers must be aware that investing in health and safety legislative audits, control measures and training is necessary to establish the defence of due diligence.  

Finally, management must vigorously enforce safety procedures and control measures by training, supervision and progressive discipline. Placing sufficient resources, expertise and disciplinary action into the workforce is clearly required by this recent decision of the Court of Appeal.

Norm Keith is a partner at Gowling, Lafleur, Henderson LLP, leads the national Occupational Health And Safety practice, author of Canadian Health and Safety Law, and is the only practicing lawyer in Canada who has achieved the Canadian Registered Safety Professional designation.
He may be contacted at 1-866-862-5787, ext. 85699. 

Mari-Len De Guzman

Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and
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