Canada's Internal Responsibility System (IRS)
Combining Safety Management and 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:
Accident Reporting and Investigation
Certified Members and Stop Work Powers
Corporate Officer's and Director's Liability
Health and Safety Programs and Procedures
"Whistleblower" Provisions of Section 425.1 (1)the Criminal Code of Canada
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
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