Blog Post #253 – Due Diligence More Than Standard

Excerpt from the OH&S Canada Magazine

A NOVA SCOTIA WORKER laying floor joists on the third floor of a construction project — without the aid of a life line or the support of a scaffold — is severely injured in a fall. An Alberta labourer working in the area of some scrap metal bales is crushed beneath a toppled load. Another worker in Alberta dies when a stack of fibreboard tips over.

What do these three cases have in common? When prosecuted, each employer argued its practices reflected industry standards and, as such, demonstrated that it had acted in a duly diligent fashion. Precisely what “industry standard” means may be up for debate but, usually, it’s seen as a practice in an industry that is generally known and adopted. This may stem from, for example, a practice used for years by the majority of an industry’s firms, or information in a code developed and promulgated by a sector association.

But in the three cases noted above, the courts rejected the defence that compliance with industry standards automatically provides a due diligence defence in a regulatory prosecution. In fact, the prevailing view was that industry standards are irrelevant if they do not meet the minimum statutory requirements.

That is until the Ontario case, R. v. Modern Niagara Toronto Inc. In a lengthy decision handed down last September, Justice of the Peace Richard Quon ruled that reliance on an “industry standard” may provide a basis for a due diligence defence.

So the thinking in Modern Niagara, coupled with conclusions in the three other recent rulings, provides food for thought. While industry standard was viewed as a defence in Modern Niagara, it was not in the aforementioned cases out of Alberta, R. v. General Scrap Iron & Metals Ltd. and R. v. Canadian MDF Products Co., or the Nova Scotia case, R. v. Barrington Lane Developments Ltd.

Still, read together, the four cases are not inconsistent. They suggest that if a defendant can prove an industry standard exists and if that standard provides a safe workplace, then all courts were prepared to consider the defence.

In both General Scrap and Canadian MDF Products, the employers argued their practices for stacking scrap metal bales and fibreboard, respectively, reflected industry standards. In so doing, the companies reasoned they had taken the steps that industry deems to be reasonable to protect workers and, as a result, were duly diligent. In each case, the courts were unconvinced that compliance with industry practices equals safe practices.

In one General Scrap appeal, the court discounted employer evidence at trial that industry standard said bales could be stacked four high and no other measures to guard against collapse are required because no one had heard of bales falling on workers. There was some question respecting the existence of such a standard, but an appeal judge noted that, even if there was one, industry practice was not proof that workers could or would generally be required to work near stacks. Nor was it proof that, at this particular workplace, use of the industry standard would provide safe working conditions.
To establish a due diligence defence, the General Scrap ruling says an employer must show that its practices, at its workplace, constitute reasonable conduct as required by the applicable safety legislation. Industry standards do not override regulatory requirements.

In the Nova Scotia case, Barrington Lane Developments, the court articulated a similar theme that before a due diligence defence would succeed, it would have to be shown that the industry practice provided adequate worker protection. In that case, a worker reported he had four years carpentry and roofing experience when, in fact, he had only two months experience. He was hired and no training was provided.

Two weeks later, the man was working from a beam, measuring only six inches wide, in an area exposed to the elements at the top of the structure. It had started to rain, and the wood on which he was working was wet and beginning to ice when he slipped and fell.

Both the project constructor and the employer were charged under Nova Scotia’s Occupational Health and Safety Act. The employer argued that it relied on the worker’s knowledge and expertise, and claimed that installing roof joists from a six-inch beam reflected (then) industry practice in Nova Scotia. The worker had noticed that the beam was becoming slippery, but did not change how he worked or did not tell his supervisor so that work could be stopped.

The court accepted that the practice of walking on a six-inch beam may be common on Nova Scotia construction sites, but held it can only be safe for those with the necessary skills (and balance) and where the employer could demonstrate that a worker discharging this duty was qualified to do so and had been trained to do the work safely.

There was no such evidence because the employer “assumed” the worker had sufficient experience to comply with the industry standard. Employers require some objective confirmation that a worker can perform the industry standard without training. If that confirmation is not available, training should be provided.

Contrast employer attitudes to safety in the Alberta and Nova Scotia cases — where the courts commented expressly on the lack of training, supervision or safety programs — with that described in R. v. Modern Niagara Toronto Inc. In the Ontario case, the employer had been retained to add pipes and components to the existing cooling/piping system in a downtown Toronto highrise. In the course of testing for leaks in the newly installed pipes, a worker was injured when a sudden release of pressurized gas blew off a metal coupling on a pipe.

The employer was charged under Ontario’s OH&S Act, but was later acquitted on all four counts. The court accepted the employer’s defence that it had acted in accordance with industry standards and the accident would have been averted had one of the workers followed the industry procedure for depressurizing the system.

The Crown alleged the employer failed to take every precaution reasonable because it did not have a written policy on testing for leaks or the hazards associated with working with pressurized pipes. As well, workers had not been specifically trained on those hazards.

Modern Niagara responded that it relied on the industry standard as it related to the training provided to its journeymen plumbers and the procedure for depressurizing pipes. The task resulting in the injury was identified as routine and was regularly performed by experienced plumbers who required little, if any, supervision. The worker in question had been observed previously working in compliance with the industry standard, it was noted.

As part of its defence, Modern Niagara described an extensive safety program which, admittedly, did not include training for the task in question. On the issue of pipe testing procedures, the court concluded that the provincial OH&S Act did not require a specific written procedure or policy and that steps taken by the employer were standard in the industry.

An employer can rely on training provided to apprentices in the course of apprenticeship training programs, the ruling says. As well, an employer is not automatically required to train or instruct licensed workers in a procedure known to them unless it can be shown that the procedure is inadequate, inherently unsafe or workers are not regularly complying.

Some contend that Modern Niagara suggests an employer need not train senior or experienced workers if it can be successfully argued that a task is routine and so basic that everyone knows how to do it because it is “industry standard”. Others see the ruling as saying an employer can rely on a skilled and licensed tradesperson knowing how to perform truly basic tasks (those that are not hazardous when done properly) and, as such, should not be responsible for training these skilled workers on these basic tasks.

With respect to the due diligence defence, the court ruled that an employer may rely on industry standards to show that it acted with the requisite degree of care. Conduct or procedures similar to those used to protect workers in a particular industry may serve as a shield against conviction — but only if that industry standard is not inherently dangerous, is adequate to prevent the offences in question or is not contrary to statutory provisions.

Presumably, to succeed in arguing due diligence through the use of industry standards, it will also be necessary to demonstrate that workers are aware of and act in accordance with the standard. This was missing in the Barrington Lane case, but evident in both Modern Niagara and R. v. Long Lake Forest Products (o/a Nakina Forest Products Ltd.), an Ontario decision released in March of 2003.

There, the court recognized that if a worker has the experience, knowledge and training, an isolated act of carelessness may not result in a conviction against the employer where the employer can otherwise demonstrate appropriate preventive measures have been implemented. These may include compliance with industry standards.

The employer was charged after a “safety-conscious, older, thus, more experienced” millwright was killed. He had been called in to fix a machine which operated more than seven feet above floor level and on which he had worked previously without locking out.

This time, the millwright stood on a guardrail designed to prevent access to the machine and became entangled in the equipment’s moving parts. He did not lock out, although evidence showed that the millwright had been trained, knew how to lock out and had done so previously when performing the same type of maintenance on the same machine.

The court noted that “employers are not to be held to a standard of perfection nor are they to be held responsible for what could be termed rogue acts by employees or isolated acts of carelessness or aberration in conduct by employees.” Worker conduct will be instrumental in determining whether or not an industry standard used in a workplace provides a safe environment.

Of course, it would be best not to rely on industry standards alone as part of a due diligence defense. Demonstrating a commitment to safety, generally, is a must for prudent employers.

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LESSONS LEARNED
Based on the cases outlined above, to succeed in arguing an industry standard defence, the following must be demonstrated.
– There is an actual industry standard, not just an “assumption” or “general practice” adopted on an ad hoc basis by those in the specific industry.
– The standard provides for a safe practice, generally.
– Use of the standard, at the specific workplace, will actually provide a safe environment.
– There is reason to believe (through training or actual observation) that workers at the specific workplace know and follow the industry standard.
– No incidents have occurred at the specific workplace that would provide evidence that the standard should be modified.

Mary Beth Currie, a partner with Bennett Jones LLP in Toronto, practices employment law, specializing in health and safety.