Update: Proving “Due Diligence” in Cases Involving Fatalities

Update: Proving “Due Diligence” in Cases Involving Fatalities

In February 2018, we provided an update on an important legal precedent relevant to employers across the province. The article discussed certain charges laid against a construction employer by the name of Cobra Float Services (“Cobra”), and its subsequent attempt to establish “Due Diligence” as it relates to the Occupational Health and Safety Act (“OHSA”).

The article detailed Cobra’s position on the law and the facts. Against steep odds, Cobra was successful in proving its defence of “Due Diligence” despite the fact that a worker had been fatally injured at its construction project in 2013.

Shortly after our article was published, the Crown (acting on behalf of the Ministry of Labour) appealed the trial judge’s decision, alleging that Cobra had failed to establish Due Diligence.

1) Trial Recap – Due Diligence Defence

Many employers do not understand the constituent elements of the defence of “Due Diligence” under the OHSA. The defence of “Due Diligence” has been interpreted to place a very heavy burden on employers to take “every reasonable precaution to ensure the protection of workers” [s.27(2)(c)]. Due Diligence requires that employers take active steps to protect the safety of their workers by creating procedures and systems to implement the requirements of the OHSA and, further, by ensuring the effective operation of those procedures and systems through their supervisors and managers.

While the foregoing requirements appear to be reasonable, in practice, it has historically been extremely difficult or an employer to prove Due Diligence, particularly in circumstances where a worker has been fatally injured.

2) Trial Recap – Crown’s Arguments Based on the Evidence

In 2013, a worker was fatally injured when a “curb machine” flipped over while it was being off-loaded from a trailer. In brief, the facts suggested that the worker in question substantially deviated from established protocols and best practices when he was off-loading the curb machine that ended up fatally crushing him. The worker in question had loaded and unloaded the same machine on a variety of different occasions, with no issues to speak of.

At Trial before the Ontario Court of Justice, the Crown alleged that the evidence did not prove that Cobra had exercised “due diligence” that would meet the legal standard required by the OHSA. The Crown submitted to the Court:

  • Cobra had failed to take “active” steps to ensure that the curb machine that crushed the injured worker was moved in a safe manner;
  • Cobra had failed to provide a “sloped surface” (e. sloped ground) that would have prevented the curb machine from tipping over;
  • Cobra had failed to ensure that the fatally injured worker was aware of the maximum safe moving elevation of the machine (it was to have been moved in only the lowest elevation setting), or how the curb machine could be unloaded while maintaining the machine at a safe elevation. Instead, Cobra’s drivers were “left to use their own discretion and judgment”.
  • The evidence disclosed that Cobra’s drivers were unaware of relevant provisions from the curb machine’s operating manual regarding safe elevation for movement;
  • Cobra “seriously failed in its duties as an employer” by relying solely on workers’ previous experience and “vetting during the hiring process”. There was no meaningful orientation or training. There was a written procedure in place for “loading and unloading” that did not address the hazard that resulted in the worker’s death;
  • Cobra had failed to provide either the necessary equipment (a ramp, or equivalent), nor adequate information and training (regarding the machine’s operation with respect to elevation and controls); and
  • Cobra took no steps to ensure, by supervision or otherwise, that safety procedures for unloading curb machines had been implemented, were effective, or were being followed by its workers at all times.

The Crown relied on the foregoing evidence, asserting that Cobra should have been found guilty as a result of its failure to take “every precaution reasonable in the circumstances” to protect the fatally injured worker.

Cobra opposed the Crown’s arguments, relying on the defence of “Due Diligence”. In support of its position, Cobra highlighted the following key points:

  • The curb machine was suitably maintained, recently inspected and suitably locked out;
  • The MOL Inspector’s evidence appeared to suggest that the ground upon which the machine was unloaded was “fine”. Moreover, the MOL Inspector had “no prior experience” inspecting the type of trailer or curb machine involved in the tragic accident;
  • The injured worker had moved the curb machine a total of twenty-seven (27) times prior to the accident without incident or cause for concern;
  • The injured worker had failed to use a block of wood which had been provided by Cobra, and was commonly used by the worker on prior occasions, to assist in lining up the wheels of the curb machine when unloading from the trailer;
  • The injured worker had set the curb machine to “manual” mode, as opposed to “automatic”, which deviated from the established practice for all of Cobra’s drivers when unloading the curb machine from a trailer;
  • Video surveillance evidence appeared to suggest that the curb machine was at an appropriate height for unloading when the trailer pulled onto the job site;
  • There was no direct eyewitness evidence regarding what actually happened (the incident was not captured by the aforementioned video surveillance due to the placement of the cameras at the job site);
  • Cobra had up to date health and safety policies, it was committed to training, and all employees under its supervision had been trained on appropriate health and safety procedures;

Cobra stressed that the OHSA and its Regulations did not contemplate that an employer would have to “supervise every action of a skilled and experienced worker”. Cobra submitted that the law required that every “reasonable” precaution be taken in the circumstances to avoid “reasonably foreseeable causes” of health and safety concerns. In Cobra’s submission, the circumstances leading to the injured worker’s death were not “reasonably foreseeable” – he seriously breached protocols and best practices – and the law does not apply a standard of perfection.

The trial judge accepted Cobra’s view that all applicable procedures regarding safe transportation and unloading had been well established and should have been followed, and acquitted Cobra of the charges laid by the MOL.

Perhaps most significantly, the trial judge found that the fatally injured worker “knew or ought to have known” that he was deviating “from the standard practice that others and he himself had followed on previous occasions”. The trial judge ruled that Cobra could not have predicted, or “foreseen”, that the worker would have deviated from the procedures that he had followed, with zero incidents, on at least twenty-seven (27) prior occasions while in the employ of Cobra.

3) Update – Appeal Court Ruling

On Appeal, Justice Minard of the Ontario Provincial Court of Justice reversed the Trial judge’s ruling and issued a “bottom line” (partial ruling, full version to be published) ruling finding Cobra guilty of violating the OHSA.

This time, the Crown adopted a significantly different approach by comparison to the strategy it relied upon at trial. Instead of relying heavily on the “general duty” provision under the OHSA (i.e. “every reasonable precaution”, it appears to have staked its appeal on the position that Cobra should have provided the worker with a trailer that had a “continuous ramp” across the entire width of the trailer, as opposed to providing the fatally injured worker with a trailer having significant “gaps”.

Accordingly, on Appeal, the Crown re-characterized the facts giving rise to the accident as follows:

  • The float trailer (a heavy-equipment mover) that was being used had ramps which could support three of the curb machine’s four wheels – there was a space between the ramps;
  • As the machine was being backed off the float trailer, one of the four wheels dropped into a gap between the ramps, causing the machine to become unstable; and
  • As a result of that instability, the machine tipped over and the worker off-loading the machine was crushed and killed.

On Appeal, Cobra attempted to rely upon some of the same arguments which had carried the day at Trial, including:

  • The worker knew, or ought to have known that he was breaching protocols put in place to keep him safe, and was doing so even though he had never done anything similar before;
  • The worker had specialized knowledge regarding the heavy equipment involved that was not known to other members of Cobra’s managerial team;
  • Cobra had provided a form of a “portable ramp” by way of wooden blocks which were used to line up the trailer, which the worker had failed to use on the occasion that resulted in him becoming fatally wounded; and
  • The worker had extensive experience performing this type of work, including twenty-seven (27) prior instances where the worker had successfully loaded or off-loaded the specific curb machine without issue.

On Appeal, Justice Minard did not find Cobra’s argument regarding the worker’s breach of protocols and procedures to be compelling. He ruled that Cobra ought to have provided a trailer with a “continuous ramp across the whole width of the trailer” or provided and ensured that the worker used a portable ramp that could be secured in place between the trailer ramps.

Additionally, Justice Minard’s bottom line decision did not focus on the fact that the worker had essentially changed the vehicle’s settings, prompting the vehicle to behave erratically when one of its four wheels dropped into the gap in the trailer.

Instead, the Court focused on the fact that Cobra had failed to ensure that a “spotter” had been used to ensure that the worker was aware of the fact that a wheel had dropped into a gap.

Accordingly, Justice Minard ruled that the Crown successfully proved that Cobra had failed to ensure that the measures and procedures prescribed by section 37(1) of Ontario Regulation 213/91 (i.e. the Construction Projects Regulation) were carried out in the workplace, contrary to section 25(1)(c) of the OHSA. The Regulation states that “material or equipment at a project shall be stored and moved in a manner that does not endanger a worker”. The curb machine had been “moved” at a “project” in a manner that “endangered a worker”.

In the result, the Court issued a fine of $85,000 against Cobra as a result of the foregoing violations of the OHSA and its Regulations.

4) Key Takeaways for Employers

In our previous article, we commented on the Trial judge’s decision and the fact that it highlighted several points which appeared to favour Cobra’s interests when relying upon the defence of “Due Diligence”. Those key points included:

  • Employers could be reassured by the fact that Courts might be willing to recognize that there was an “upper limit” to what an employer could reasonably be expected to do, or “foresee”, in order to safeguard the health and safety of a worker;
  • The Trial judge appeared to recognize that Cobra’s supervisors or managers could not be everywhere, all the time, and that an employee’s experience could arguably be relied upon in the event that a serious deviation from standard operating procedures caused an accident;
  • An employer or supervisor, particularly in respect of a smaller company with limited resources, could not be expected to be aware of every specific detail, best practice, industry standard, rule or guideline that might apply to every specific job function performed at a job site. The Court appeared to recognize that certain industry practices were developed over time and might only have revealed themselves to experienced employees after years of on-the-job training; and
  • The law appeared to require Cobra to take steps to prevent “reasonably foreseeable” accidents; the law did not hold Cobra to a standard of perfection particularly in circumstances where they were relying upon the specialized training and experience of their subordinate staff members.

As a result of Justice Minard’s most recent “bottom line” ruling, it is unclear whether any of the foregoing considerations still hold true. It is possible that the entire Trial level decision has been reversed.

In fairness to Justice Minard, the Trial decision that he overturned stuck out from the rest of the jurisprudence under the OHSA like a sore thumb. It is exceedingly rare to come across a decision in which a fatal injury is not accompanied by a corresponding conviction and penalty.

Accordingly, Justice Minard’s ruling can appropriately be regarded as a return to form for the Courts and the Crown. Courts have historically been extremely hesitant to cut employers any slack when it comes to health and safety, particularly in cases where a worker has been fatally injured. Conversely, the Courts will seize upon any gap in an employer’s defence of “Due Diligence” in order to hold an employer accountable for a workplace incident. That has been status quo for the past several decades and continues to be so.

Cobra’s recent conviction once again confirms that the only guaranteed way to avoid legal liability under the OHSA is to take every possible step (including training, adequate supervision and proactive management) to ensure that workplace accidents do not happen in the first place.

Written by Tushar Anandasagar

Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C., practicing exclusively on the Management side of Labour and Employment Law. He works in all areas of HR law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at