Due Diligence

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Occupational health and safety due diligence is more than just a trendy catchphrase or inspirational motto, in Ontario and across Canada, it is the law. The Supreme Court of Canada has clearly stated that proper legal response to occupational health and safety charges is the defence of due diligence. The legal requirement to take “every reasonable precaution, in the circumstances, for the health and safety of workers”, is the standard that not only employers, but managers and supervisors will be held to across Canada.

In Ontario, the Occupational Health and Safety Act uniquely defines the core competencies of the manager to meet the requirements of the Occupational Health and Safety Act. The “competent” as a manager and supervisor, is very similar to the responsibility to be duly diligent. In Ontario, a competent manager and supervisor is a person who, “qualified because of knowledge, training and experience, to organize the work and its performance … is familiar with this Act and the regulations that apply to the work, and … has knowledge of any potential or actual danger to health or safety in the workplace”.

In Ontario, similar to many other jurisdictions across Canada, occupational health and safety legislation sets out specific statutory duties. Managers and supervisors in Ontario must ensure that a worker works in a manner and with the protective devices, measures and procedures required by applicable regulations. They must also ensure that a worker uses or wears the personal protective equipment required by the employer.

Ontario legislation also requires the manager or supervisor to advise the worker of the potential or actual danger to the health and safety and take every precaution reasonable under the circumstances for the protection of a worker. Managers and supervisors are increasingly being held accountable, by way of quasi-criminal prosecutions, in compliance with these duties and responsibilities.

The recent case of a manager charged with contravention of Ontario’s Occupational Health and Safety Act related to the death of a worker caused by heat stress, is a timely example how the Ministry of Labour for the Province of Ontario is assertively prosecuting alleged contraventions by managers and supervisors. The requirement for training in Ontario, through the “competent person” definition for managers and supervisors, is followed by other Canadian jurisdictions. For example, under the federal Labour Code, Part II, the employer has the duty to provide “adequate training” with respect to occupational health and safety and knowledge of the applicable federal occupational health and safety legislation and regulations.

Even a bank manager, at a relatively low risk workplace, is required to be trained in the fundamentals of occupational health and safety and legislative compliance. It is clear that Canadian health and safety legislation requires a high level of understanding, instruction, and training for managers and supervisors. It is not just the occupational health and safety manager’s job, but all managerial and supervisory personnel, to be familiar with applicable health and safety legislation, familiar with the employer’s specific health and safety program, and to be fully involved in the implementation and enforcement of the employer’s occupational health and safety system.

This requires more than just health and safety legal knowledge, and more than just occupational health and safety consulting knowledge. In fact, Gowling Lafleur Henderson LLP (“Gowlings”) has both health and safety lawyers and consultants working together to design the highest level of due diligence training courses available for managers and supervisors. Gowlings’ approach to due diligence training for managers and supervisors helps them understand the law, and apply it to sound health and safety management principles.

Focusing solely on either legal compliance or health and safety management would leave managers and supervisors inadequately trained. In summary, Canadian health and safety legislation, and in particular Ontario’s Occupational Health and Safety Act, set high standards of occupational health and safety compliance to protect workers in all types of workplaces. Neither health and safety professionals nor workers themselves can be expected to fully implement and enforce an effective occupational health and safety system.
To meet the Supreme Court of Canada’s expectation that there be an effective implementation of an occupational health and safety management system to achieve due diligence, requires employers to invest significantly in management and supervisory due diligence training.