Keeping You Aware of Industry Best Practices
In every province and territory in Canada we have certain legal obligations. Two terms commonly used in the Alberta courts are “due diligence” and “reasonably practicable”. In Alberta, if you are charged under the OHS Act, you are guilty until proven innocent and you would be required to prove due diligence. To have a valid due diligence defence, the courts would consider three elements.
- Would a reasonable person foresee that something could go wrong? This is “foresee-ability”. You would have to prove that the incident was so unlikely to occur that you could not foresee it.
- Could the incident, accident or injury have been prevented? Did that opportunity exist? This is “prevent-ability”. You would have to prove that the incident could not be prevented and you would have to prove that you did everything reasonable to prevent it.
- Who could have prevented the incident, accident or injury? This is “control”. If an incident occurred you would have to prove that you had no control over the happenings. The courts would most certainly look at all regulations, standards, best practices within your industry and your company’s safety program and policies. This includes the written proof or existence of elements such as hazard assessments, site inspections, training, orientation and assurance of a competent worker being the one performing the task. These are not theoretical thoughts - it is the law.
“Reasonably practicable” is a legally defined term and is assessed using the “reasonable person test”. What would a dozen of your peers consider reasonable in a similar set of circumstances? Your peers would likely review what you did and compare it against what they do in their own operations. Some of them might do more, others less. The result would be a balanced and wise judgment that could be defended by others. In the eyes of the law, if something is reasonably practicable, then it must be done. So if there is an accident on your site, the Alberta Government, Alberta Employment and Immigration, and Workplace Health and Safety would most likely contact your competition to see how they compare to your practices and procedures.
Every province and territory in Canada has a “General Duty Clause” that describes the obligations of employees and workers. It states:
- Every employer shall ensure, as far as it is reasonably practicable for the employer to do so, (a) the health and safety of (i) workers engaged in the work of that employer, and (ii) those workers not engaged in the work of that employer but present at the work site at which that work is being carried out, and (b) that the workers engaged in the work of that employer are aware of their responsibilities and duties under this Act and the regulations.
- Every worker shall, while engaged in an occupation, (a) take reasonable care to protect the health and safety of the worker and of other workers present while the worker is working, and (b) co-operate with the worker’s employer for the purposes of protecting the health and safety of (i) the worker, (ii) other workers engaged in the work of the employer, and (iii) other workers not engaged in the work of that employer but present at the work site at which that work is being carried out.
- Every supplier shall ensure, as far as it is reasonably practicable for the supplier to do so, that any tool, appliance or equipment that the supplier supplies is in safe operating condition.
- Every supplier shall ensure that any tool, appliance, equipment, designated substance or hazardous material that the supplier supplies complies with this Act or the regulations.
- Every contractor who directs the activities of an employer involved in work at a work site shall ensure, as far as it is reasonably practicable to do so, that the employer complies with this Act and the regulations in respect of that work site.
By including the words “reasonably practicable”, legislators make the Occupational Health and Safety Act “strict liability” legislation and introduce the possibility of a “due diligence defence”. Due diligence is demonstrated by your actions before an accident occurs, not after the fact.
Source: Alberta Occupational Health and Safety Act.
Consult with AJB Safety Consulting Services Ltd. to ensure the compliance of your operation.