What is Due Diligence?

It is important to appreciate that the elements of due diligence must be present in the workplace before accidents or incidents occur, if it is to be available as a defence to a charge under the Act. Due diligence cannot be "made up" after the fact. The availability of the due diligence defence depends upon the creation, implementation, and enforcement of appropriate health and safety policies, practices, and procedures in the workplace. From the perspective of a defence to a prosecution under the Act, due diligence requires that the party charged be able to establish that they took all reasonable care to avoid the particular event giving rise to the prosecution. Prior to the Supreme Court of Canada's decision in the Sault Ste. Marie case, health and safety statutes were regarded as absolute liability statutes. To put it simply, that meant if an accident occurred, you (whether you were a corporation or an individual) were guilty no matter what you had done to prevent it from happening. For example, regulations under the Act might require that a particular machine be guarded. Under the absolute liability statutes, even if the employer had provided a guard, provided training on the use of the guard, and disciplined employees for failure to use the guard, the employer could still have been found guilty under the Act if an employee was injured as a result of circumventing the guard. The efforts of the employer to ensure that the employee did use the guard in the appropriate way did not matter. What mattered was that the employee did not use the guard and was hurt. Under the absolute liability concept, no matter what you did, if the event that was not supposed to happen occurred, you were guilty. The change brought about by the Sault Ste. Marie case is significant for employers. It gave them an opportunity through the conduct of their health and safety programs to defend themselves against charges under the Act. Since the Sault Ste. Marie decision, if an employer provides the guard on the machinery, provides instruction to employees on the use of the guard, and takes other such reasonable steps to protect workers, the employer will now have available the defence of due diligence in the event of a charge. That is, if the employee is injured despite the fact that the employer has taken all reasonable care to ensure that the guard was used in the appropriate way, then the employer will not be guilty even though the requirement for the use of a guard may not have been met as a result of the conduct of the employee.

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