August 2010

Eye on Business

How to establish a due diligence defence

By R. Cooper

When an accident takes place and the government decides to lay charges under occupational health and safety legislation, the ability of a company to successfully defend those charges will depend on its ability to demonstrate that it exercised “due diligence” in all of the circumstances.

There has been much discussion over the years regarding what constitutes due diligence, and there have been a number of cases where this issue has been assessed by the courts. However, often the determination of whether due diligence has been exercised will turn on the facts in each case. It will also depend on standard practices in the industry, and how the conduct of the company that has been charged measures up against those industry standards.

The mining industry is one that is fraught with dangers and hazards and, as such, the ability to demonstrate due diligence can be challenging, even in situations where significant efforts have been made to avoid the particular incident. Recently, the Association for Mineral Exploration British Columbia and the Prospectors and Developers Association of Canada published the Canadian Mineral Exploration Health and Safety Annual Report, which included health and safety policy guidelines for junior mineral exploration companies. The guidelines set out general duties for the board of directors, as well as reporting and training recommendations. In addition, the guidelines contain a due diligence checklist that is extremely helpful in self-assessing whether there are sufficient measures in place to avoid incidents and demonstrate due diligence.

One area where mining and exploration companies often neglect to focus attention relates to the fact that much of the work occurs at remote locations and at workplaces that are often less than adequately equipped with means of communication and that face extreme weather challenges. The unique nature of some of this work does not in any way lessen the efforts that must be made to protect health and safety of workers and, in fact, heightens the safety precautions that must be taken. This is because, in determining whether due diligence has been exercised, an important component is the foreseeability of a hazard or danger.

Mining and exploration companies also frequently retain contractors to conduct specific work activities on their behalf. Many of these companies are often surprised to learn that they are responsible for the safety of their contractors and can be charged in relation to incidents involving their workers. For this reason, it is as important to be able to demonstrate due diligence in the context of contractors as it is with true employees. The reason for this is that most occupational health and safety legislation places duties and responsibilities on those that retain the services of independent contractors to ensure their safety. In fact, much of this legislation does not distinguish between the duties owned by true employees versus independent contractors.

In order for a company to position itself to demonstrate due diligence with respect to its contractors, efforts must be made when retaining the contractor to make inquiries into the company’s safety record, to review training and safety practices, and to take other steps to ensure that the contractor is properly qualified and works safely. All of these efforts must be documented. In addition, any agreements with the contractor should specify exactly what is expected of the contractor, and the contractor should be required to acknowledge these expectations.

There should also be contractor safety programs developed and implemented to both ensure that contractors are properly trained and aware of their responsibilities and also to demonstrate due diligence. Contractors should be made familiar with the workplace and informed of hazards or other dangers particular to that workplace prior to the work commencing. They should also be informed of any changes made that could affect safety in the workplace. Finally, ongoing monitoring of the contractor’s compliance with legal and other requirements is another important component of exercising due diligence, as is timely action upon becoming aware that such requirements are not being met by the contractor.

It continues to be challenging to demonstrate due diligence in the context of an occupational health and safety prosecution. Although the jurisprudence to date has held that “perfection” is not required, there is no doubt that the threshold is a high one. Mining and exploration companies will need to take appropriate measures to place them in the position of being able to demonstrate that the threshold has been met.

Rosalind Cooper
Rosalind Cooper is a partner with Fasken Martineau and practices in the areas of environmental law and occupational health and safety law. She is named in The 2010 Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada and is also listed in The Best Lawyers in Canada.

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