What is OHS Due Diligence?

Occupational health and safety (OHS) due diligence essentially means taking “reasonable care” to ensure no harm comes to workers at a work site. This duty — as outlined in OHS legislation in jurisdictions across

Canada

— of taking “reasonable care” applies to employers, workers, contractors and suppliers. The “employer” may be a company, a manager or a supervisor.

Due diligence is the opposite of negligence. For example, an employer could be considered negligent if it was in breach of its duty to take “reasonable care” and an injury occurred as a result of the breach. “Reasonable care” means “to avoid acts or omissions in the workplace, reasonably foreseeable, that would cause injury.”

Example: A road construction company operates a packer that has faulty brakes. The condition is observed and reported, but the brakes are not fixed. The company continues to use the packer. One day, the packer goes out of control on an incline. The operator jumps off, and the packer continues down the hill and strikes a truck, injuring the driver.

Did the company take reasonable care? No. It is not reasonable to operate a piece of heavy equipment without functioning brakes. In this case, the company, the foreman and the operator, all of whom had an opportunity to fix the equipment or prevent its use, could be charged and prosecuted.

What are an employer's duties?

An employer must ensure, as much as reasonably practicable, the health and safety of their own workers, and also that of any other worker present at the work site who could be affected by what they do or fail to do.

How do you determine reasonableness?

Each case rests on its own facts. Factors that determine reasonableness in any given case include:

the knowledge and experience of the individuals involved

the nature of the work to be done

the likelihood and degree of potential harm

each person’s degree of control (ability to prevent the accident), and

whether there was a safer alternative.

Practicability will depend on:

resources available — people, equipment, money.

feasibility — has the work ever been done before? And...

the urgency of the task.

This means that any action taken must demonstrate sound judgment and reflect what can sensibly be done, bearing in mind the risks of the work.