Canada's Internal Responsibility System (IRS)

Combining Safety Management and Due Diligence 

Due Diligence:

"Due Diligence" is one of those common health and safety topics that employers and often even their choice of legal representation struggle with.  Under existing occupational health and safety statutes in Canada employers are required to demonstrate a certain "Standard of Care" with regard to all of their employees, production procedures and operations. This standard of care is often expressed via the creation of detailed workplace safety policies. The Internal Responsibility System (IRS) practiced by industrial employers throughout Canada transfers the responsibility for plant and worker safety onto the shoulders of employers and manufacturers.

Many employers and the supervisors paid to organize the workforce on their behalf remain entirely unaware that the common concept under Canadian law that an accused is innocent until proven guilty has been inverted under the auspices of Canada's network of occupational health and safety statutes and regulations. When it comes to safety offences employers become subject to the legal concept of "strict liability" which means that a defendant can be convicted even though they were entirely ignorant of one or more factors that made their acts or omissions criminal in the first place. Under the idea of due diligence an accused may be only able to prove their innocence by presenting written proof that they did everything in their power to remedy a hazardous situation that contributed to the development of a workplace injury or fatality.

In layman's terms it is not up to the Crown to prove that an individual or an organization is guilty of an offense but instead it is up to the individual to prove through excellence in record keeping that they were indeed aware of any and all applicable legal responsibilities and as a consequence took all of the measures necessary to ensure that these legal requirements were met and adhered to in an appropriate fashion.

Knaack & Associates can assist your organization with all of the following Compliance and Due Diligence concerns:

Appealing Orders

Accident Reporting and Investigation

Certified Members and Stop Work Powers

Corporate Officer's and Director's Liability

Hazardous Substances

Health and Safety Programs and Procedures

Reprisal Complaints

"Whistleblower" Provisions of Section 425.1 (1)the Criminal Code of Canada 

WHMIS

Work Refusals

 

Strict Liability and the Burden of Evidence for Occupational Health and Safety Cases

Occupational health and safety is a heavily regulated and legally structured aspect of corporate and employment law. As such taking no action on identified hazards can have very serious repercussions upon the heads of responsible decision makers as the field of occupational health and safety remains an area where legally daunting concept of “strict liability” continues to be applied.

Under the auspices of this legal concept the normal assumption of innocence before guilt before the courts has been inverted. Thus a guilty verdict is almost assured in those cases involving health and safety deficiencies where the kind of detailed records required as part of a due diligence defense are absent or indicate that decisions were made at a variance with existing statute or industry best practices.

Securing against Third Party Liabilies within the Structure of Corporate Health, Safety and

Environmental Programs:

Due diligence and liability concerns today do not necessarily end at a corporation's property line. The safety and security of outside contractors and the related third party liabilities represent a signifcant and growing area of concern to corporate managers and executives from the perspectives of legal compliance, corporate liability and a due diligence. Over time three distinct kinds of third party liability concerns have evolved in field of health, safety and environmental management in Canada. Each of these considerations, if localized, must be addressed within the scope of existing corporate health, safety and environmental procedures and practice.

While employers, supervisors, regular employees and contactors represent the most important identified stakeholders within Canada’s collective body of safety statutes and regulations, other significant stakeholders also exist whose importance presently remains only poorly defined and regulated under existing Canadian occupational health and safety legislation. Although largely ignored by the health and safety statutes and regulations, victims of industrial accidents who are not actual parties to the work being conducted represent the most significant additional risk factor to any public or private employer.

A picture showing a six-metre long piece of metal flooring that was blown off the roof of construction site in downtown Calgary during the evening of Saturday, August 1, 2009. The construction materials crashed onto a family walking along 9 Ave. S.W., leading to the death of a three-year-old girl, Michelle Krsek, and seriously injuring the child's father. 

Liabilities Derived from "Embedded" Work at a Client's Location

Depending on the scale of an organization's product and service offering, it is entirely possible that employees of an outside organization are embedded, either for short or in some cases over considerable time frames, within a host organization. The liability challenges that can derive from these kinds of informal joint staffing arrangement are often only noticed following litigation in the wake of an unexpected mishap or accident that impacted deployed third party resources. Equally possible is the reverse situation where one employer has deployed or embedded corporate resources at a client's location as part of regular instalation, maintenance or other necessary contract activities. Hence from the perspective of corporate health, safety and environmental policy it is important that a clearly defined safety interface has been established in advance of any such activities being undertaken with areas under the direct control and authority of a "host" organization.

In either case, due to the existence of a de facto shared workspace, it remains incumbent upon the employer to take any measures necessary to ensure the continued health and safety of their employees while at work at outside and remote workspaces. As in the case of a workspace under their direct control and ownership, the employer must demonstrate a clear understanding of the occupational risks and hazards and other compliance requirements both from the perspectve of a "hosting" employer as well as from that of a "guest" service provider whose employees are required to provide labour services at a location under the control of an outside employer. Often, site-specific health and safety programs and policies may apply in specific work areas that embedded outside employees have not been made aware of. As the ultimate responsiblity for employee safety rests with the actual employer it is incumbent upon them to ensure that the work being performed can be done so in safety. 

Liabilities Derived from "Unaffilliated" Victims of Workplace Accidents

Considering the varied and potentially severe legal implications that might ensue through the death or injury of an unaffiliated bystander as a result of an industrial mishap it is important that sufficient measures are undertaken as part of general corporate health and safety policy to identify and control any such broader potential risk factors.

The growing victim’s rights movement in Canada that has seen the gradual extension of compensation programs for the victims of criminal actions has gained significant momentum in this country following the high profile death of a three year old girl, Michelle Krsek, in Calgary during August of 2009 and the massive explosion of the Sunrise Propane facility in Toronto a year earlier that necessitated the evacuation of some 12,500 people from their homes. In the case of the death of young Miss Krsek, two construction companies, Germain Residences of Quebec City and Flynn Canada, a subcontractor, were fined $ 15,000 in a Calgary court in February of 2011.

The relatively modest fine assessed, the maximum fine allowable under the Alberta Building Code Act, has fueled the debate for increased legal protections for the innocent victims of workplace mishaps and accidents. Michelle Krsek was killed instantly when a two-metre bundle of sheet metal that weighed near 250 kilograms fell from the roof of a high rise construction project. The young girl’s father was also seriously injured as a result of the event. To date he has needed to undergo five surgeries and has been unable to pursue employment due to the severity of the injuries sustained. A civil suit is before the courts. 

 

Canada's Internal Responsiblity System - Applying the Legal Obligation of "Due Diligence" to Corporate Occupational Health, Safety and Environmental Management Systems  

Safety Policy Statements and Organization:
Corporate health and safety policy can only be effective if it is properly communicated to those who need to comply. In most jurisdictions in Canada corporate health and safety policies must be communicated to staff by means of a posted corporate health and safety policy statement. Additionally the requisite legislation and any relevant corporate health and safety policies must be provided to employees upon request.

The imposition of "boiler plate" policies developed by outsiders or "ivory tower" policies introduced by well minded individuals with little practical knowledge of the day to day issues affecting workers are two compliance driven evils that can undermine the effectiveness of corporate health and safety policies and the related infrastructure. To be effective policies must reflect the reality on the ground and must solicit the input from those most familiar with the issues and hazards of concern.

Monitoring:

Workplace hazards can become nearly invisible once employees become used to them due to prolonged familiarity and exposure. The impact of becoming desensitized to particularly marked industrial hazards holds especially true the particularly safety intensive construction sector. As such employers can invest a significant amount of time and money in increasing awareness for existing workplace hazards.

Employees may or may not appreciate how dangerous some of their work activities really are as they over time can become desensitized to the true dangers associated with the work they are required to conduct every day.

Safety Training:
To be effective, new employee orientation training should also cover in detail the right to know, the right to participate as well as the related right of employees to refuse work that they perceive to be dangerous. As such, corporate environmental health and safety training is also a primary due diligence tool.

Employers must ensure that all employees sign an attendance sheet and that copies of such attendance sheets are kept as part of an employee’s permanent record of employment.

The reason for all new inbound staff to attended documented health, safety and environmental training sessions is to ensure that corporate health and safety policies are understood and that employees remain accountable for safety related performance. Under the law, corporations remain responsible to ensure that employees receive the right level of training for the risk level of work being undertaken including task and hazard specific training. The best way to ensure that employees have received such training is for employers to document all training sessions provided and to keep signed attendance sheets that verify individual attendance.

Health, Safety and Environmental Legislation:

It is not unusual for important changes to be applied to existing health and safety statutes can without any obvious form of notification. While federal and provincial governments often communicate basic changes to the law including changes to health and safety legislation and regulations the way that this is conducted may not reach those organizations required to comply. In the end, ignorance of the law remains an insufficient legal defense. Thus the imperative is upon an organization to stay abreast of both subtle and fundamental shifts in government health and safety and environmental policy.

Safety Audits:
The performance of periodic audits must be an essential aspect of a corporate health and safety program. Audits are performed to ensure continued compliance as well as to review overall performance against the stated objectives outlined within the corporate safety program. To be effective auditors must be given a clear idea of the envisioned scope of the audit. Health and safety audits can involve significant personnel inputs. From this perspective alone it may make ense to combine a number of other related aspects with a health and safety audit. These can include an audit of corporate emergency measures, fire protection, environmental controls and business continuity infrastructure.

A common misconception within many board offices is the belief that written procedures that require excessive amounts of documentation can actually increase corporate liability and legal exposures. Nothing could be further from the truth considering the requirements of a due diligence defense that is associated with the internal responsibility system. Those organizations that fail to comply against the letter of the law and fail to maintain adequate records typically can find themselves facing the most involved legal sanctions including fines, victim surcharge payments, court costs, and potential periods of imprisonment  for the most severe offenses.

Competent Supervisors and Managers:

Ontario’s Health & Safety Act requires employers to ensure that all supervisors and managers appointed to oversee safety practices are suitably trained and competent. Once in place a competent supervisor must be aware of all of their legal obligations with regard to the health and safety of their subordinates.

Competent managers and supervisors represent the employer and must be able to provide sound advice on all matters of health and safety.  

Risk Assessments and Risk Management:
The goal of risk management is to pro-actively assess what if anything could possibly go wrong with an envisioned undertaking, determine which risks are important to deal with at ever stage as well as to implement strategies to deal with all risks identified. 

According to the legal fundamentals of the internal responsibility system and the associated concept of due diligence, supervisors, managers, safety professionals and corporate executives who fail to pass on information on identified hazards where required by law and or company policy can potentially face a variety of legal challenges ranging from the threat of civil litigation to the laying of criminal charges.

Along the same lines existing corporate safety policies and procedures must be subject to a process of regular functional review to ensure applicability, relevance, compliance with legislation as well as continued traction from a practical perspective. Corporate leaders and members of workplace health and safety committees must be able to make decisions from a position of knowledge and clarity. When presented with hazard information that is current, accurate and specific, responsible decision makers can decide on the most appropriate course of action. In essence follow ups are conducted with the intent of providing corporate managers and other decision makers with a range of options with the overall goal of ensuring that the health and safety of all employees continues to be protected – a legal fundamental anchored in the “general duty clause” found in most pieces of occupational health and safety legislation in Canada.

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