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Appeal Court Clarifies “Foreseeability” as Element of OHS Due Diligence

Employers charged with violating the Occupational Health and Safety Act (Act) can escape conviction by proving they exercised due diligence, often referred to as the “due diligence defence”.  When assessing whether an employer has established the due diligence defence, courts must determine whether a reasonable and prudent employer in the same circumstances would have been expected to take any reasonable precautions that were not taken by the employer charged.  Indeed, in our practice we often hear Crown Prosecutors echo the phrase, “the failure to take a single, reasonable precaution is a breach of the Act.”

A less common and by far less successfully pleaded aspect of the due diligence defence, is the argument that the accident (or contravention) was not reasonably foreseeable.  The basis of this aspect of the defence is that a reasonable and prudent employer in the same circumstances cannot be expected to have taken precautions to avoid an eventuality which it could not reasonably have foreseen.  Courts interpret this aspect of the due diligence defence strictly, such that although clairvoyance is not required, the failure to consider an activity or piece of equipment as hazardous does not establish the defence.

In R. v. Rassaun Steel & Mfg. Co. Ltd. (Rassaun), an appeal court reversed a conviction, finding that there was no evidence before the Justice of the Peace upon which to conclude the accident was reasonably foreseeable.  Rassaun was hired by the owners of a dormant foundry to remove and relocate certain equipment, including a fan assembly and conveyor system.  Duct work, suspended from the ceiling, was connected at one end to the fan assembly and to the conveyor system at another.  One of Rassaun’s workers had disconnected the duct work from the fan assembly and was in the process of unbolting it from the conveyor, when a section of the duct work collapsed, seriously injuring another worker below.  It was later determined that a number of welds on the duct work were poor and that sand had built up in the duct.  More than anything else, these two factors led to the duct’s collapse.

At trial, Rassaun tendered experienced witnesses who offered what the appeal court later called “uncontradicted evidence” that it would not have been practical or reasonable to inspect all of the welds, which would have taken years, and that the sand build up should not have occurred and could not have been expected.  The appeal court found that the “indisputable conclusion” to draw from the evidence was that the duct work would not have shifted and collapsed were it not for the poor welds and sand build-up.  As a result, the accident was not reasonably foreseeable and the conviction was overturned.

Rassaun is a welcome decision as it clarifies the foreseeability aspect of the due diligence defence.  In our view, a key aspect of the employer’s victory was the evidence it tendered to refute the presumption that inspecting the welds was a reasonable precaution that it should have taken as a prudent employer.  Although judges try to avoid determining foreseeability and the reasonableness of precautions without relying on hindsight, that distinction can be hard to draw and the test is always applied in the circumstances of each individual case.

The best defence is to have a solid due diligence program in place, to go beyond minimum, reasonable expectations when possible and to regularly review and adapt your health and safety program.

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