Due diligence defence: the "unforeseeability" factor

Jan 22, 2013

Three recent court decisions acknowledge unforeseeability - the inability to anticipate the event that occurred - as a valid consideration for workplace parties mounting a due diligence defence.

In all three cases, which involved two employers and one contractor, the courts dismissed all charges, including failing to take every precaution reasonable in the circumstances for the protection of a worker, as required by s. 25 (2)(a) of Ontario's Occupational Health and Safety Act (OHSA). However, in two of the cases these charges were dismissed only after the parties appealed.

In their decisions, the judges ruled that the accused had proven that they took all reasonable care (i.e., acted with due diligence), and could not have foreseen what happened.

“Due diligence is in law the converse of negligence,” writes Justice David Paciocco in one of the decisions, R. v. Thomas Fuller and Sons Ltd. “The inquiry is into what a reasonable person would have done and whether the accused person met such standard, with the onus on the accused person to prove such reasonable care on the balance of probabilities. If the accused person proves they were not negligent in this sense, they avoid conviction.”

The table below summarizes the “unforeseeability” aspect of the cases and their key findings. Click on the links below to read the full decisions.

Case R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), Nov. 30, 2012
  • Failing to provide information, instruction or supervision to a worker at a workplace located at 8277 Lawson Road, Milton Ontario contrary to s. 25 (2)(a) of the OHSA. Specifically, the defendant failed to ensure that a worker received information, instruction and/or supervision in the safe operation and/or parking of vehicles in the workplace.
  • Failing to take every precaution reasonable in the circumstances for the protection of a worker, contrary to s. 25 (2)(h) of the OHSA.
Incident The business cleans automobiles prior to sale at auction for leasing and car rental companies. In May 2006, a car cleaner drove a vehicle into the wash bay area, setting off a chain of collisions injuring a co-worker. The car cleaner was not required to drive as part of his job. Furthermore, he had been told by a co-owner and two supervisors not to drive any vehicles.
Key Findings “As it was not [the worker’s] job to drive nor was there any reason for his employers to suspect he would drive, there is no requirement for the defendant in these circumstances to provide him with information, instruction or supervision in safe operation or parking of vehicle… the appellant should not be held responsible for the isolated act of misconduct by [the worker] as [the employer] had taken every reasonable means to instruct him about his job…”

Case R. v. Rassaun Steel & MFG. Co. Ltd., Nov. 14, 2012
  • Failing to take every precaution reasonable in the circumstances for the protection of a worker, contrary to s. 25 (2)(h) of the OHSA. Specifically, the defendant failed to take the reasonable precaution of ensuring that the overhead duct system was adequately supported while it was being demolished or dismantled.
Incident In September 2006, Rassaun employees were removing equipment from a foundry, for transfer to another location. As one worker was removing bolts connecting ductwork to equipment to be removed, a section of ductwork fell onto another worker who sustained serious injuries. Evidence indicates sand had built up within the ductwork, and welds in the ductwork were poor.
Key Findings “… there was no basis upon which to conclude this was a foreseeable risk. … the evidence was that that buildup should not have occurred and could not have been expected. Experienced witnesses offered uncontradicted evidence that it was not practical or reasonable to inspect all of the welds as it would have taken years to do so. But for the poor weld and the sand buildup, this accident would not have occurred.”

Case R. v. Thomas Fuller and Sons Ltd., Nov. 23, 2012
  • Failing to ensure that the equipment, materials and protective devices as prescribed are provided, contrary to subsection 25(1)(a) of the OHSA.
  • Failing to ensure that every part of a project was designed and constructed to support or resist all loads and forces to which it is likely to be subjected, contrary to subsection 31(1)(a) of O. Reg. 213/91.
Incident In February 2006, a worker died from head injuries after a 4 x 4 piece from a wooden brace that formed part of makeshift winch system snapped and struck him. Thomas G. Fuller and Sons Ltd. was using the winch system to coax a section of concrete pipe into place.
Key Findings “… what we have here is a corporation that relied upon manufacturer instructions and industry standards in the design and construction of the wooden brace. They did so for the purpose of using the winch system as a guide to achieve alignment and to “gently push” the piping together, knowing that it would be operated with the assistance of experienced pipe fitters under the supervision of someone who appreciated that increased force would not meet with success. I think it was reasonable for Thomas G. Fuller & Sons Ltd. to have proceeded on this footing. On this evidence it is easily established on the balance of probabilities that Thomas G. Fuller & Sons Ltd. exercised due diligence.”


How WSPS can help

"Due diligence" is commonly used when describing the duty of workplace parties to manage workplace health and safety risks. In this context, WSPS and its Health & Safety Ontario partners offer a wide range of resources that can help your workplace meet its due diligence requirements from a number of perspectives:

To better understand how due diligence may apply in your workplace, consider these courses:

We also offer related products and services specifically for small business.