Frequently Asked Questions

1. Why is due diligence important?

"Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.

Due diligence is demonstrated by your actions before an event occurs, not after.

2. What is "due diligence"?

Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.

Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation. Reasonable precautions are also referred to as reasonable care. It refers to the care, caution, or action a reasonable person is expected to take under similar circumstances.

Another term used is employers must do what is "reasonably practicable".  Reasonably practicable has been described by the Labour Program (Canada) as taking precautions that are not only possible, but that are also suitable or rational, given the particular situation.  Determining what should be done is usually done on a case by case basis. 

To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards.

3. What is negligence?

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.  The area of tort law known as negligence involves harm caused by carelessness, not necessarily intentional harm.  The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people.

4. Has anyone been charged under Bill C-45?

Yes. To date there have been eight cases where charges have been laid. Most of these cases did see other charges and fines issued using the occupational health and safety legislation of the jurisdiction where the incident took place.

On February 11, 2010 Sault Ste Marie Police charged the owner of Millennium Crane Rentals and the crane operator with criminal negligence causing death after a municipal worker was killed while working in an excavation hole. The accident occurred on April 16, 2009 at an excavation site where sewage work was being performed. The crane toppled and fell into the hole killing the worker. In March 2011, the Crown announced that it had dropped the charges of criminal negligence causing death because there was no reasonable prospect of conviction based on the evidence. In July 2013, Millennium Crane Rental was, however, "found guilty of failing to ensure that the crane was maintained in a condition that would not endanger a worker", and fined $70,000 for a violation of the Ontario Occupational Health and Safety Act.

On December 24, 2009 four workers were killed and one was seriously injured at a Toronto construction site when the swing stage scaffolding they were on collapsed. Metron Construction and three corporate officers were charged with criminal negligence and fined $200,000 plus a victim surcharge of $30,000.  Metron's owner was personally fined $90,000, plus a victim surcharge of $22,500 under the Ontario Occupational Health and Safety Act. A total of 61 charges were laid by the Ministry of Labour. The fine against the company was appealed and in September 2013, the Appeal court tripled the fine against Metron, raising it to $750,000 for Criminal Negligence. An additional victim surcharge of $112,500 was levied against the company. The appeals court judge found that the original fine of $200,000 was "manifestly unfit".  One supervisor named in the case will be on trial in the Fall of 2013 for charges of criminal negligence causing death.

On March 17, 2008 a paving company (Transpave) was charged and convicted of criminal negligence and fined $100,000 in the death of an employee, plus a $10,000 victim surcharge.

On May 17, 2007, Mark Hritchuk, a Service Manager at a LaSalle, Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years. Mr. Daoust, a 22 year employee with the company, was engulfed in flames after a spark ignited fuel which had spilled on him, while he attempted to fill the gas tank of a vehicle whose fuel gage had broken and needed repairing. The employee survived but received third degree burns to 35% of his body. The case was brought before a court of inquiry on March 10, 2009. The case went to court in March 2012. Mr Hritchuk pleaded guilty of unlawfully causing bodily harm.

On October 13, 2006 a train struck a maintenance vehicle, killing one worker and injuring three others. Two employees of Québec-Cartier were charged with criminal negligence causing death and three counts of criminal negligence causing bodily harm. The corporation was not charged. On November 29th, 2010 a Quebec Court acquitted both men on all counts, finding that the incident was an error due to a company culture of tolerance of unsafe practices and deficient training rather than a wanton act of criminal negligence.

On Jun 12, 2006 a landscape contractor was crushed to death when the backhoe his employer was driving failed to stop, pinning the employee to a wall. The investigation of the incident found that the 30 year old backhoe had not received any regular maintenance since the vehicle was purchased and that no formal inspection had been done in the previous five years. Upon further investigation it was discovered that the vehicle had no braking capacity. In September 2010, the employer was convicted of criminal negligence causing death and was given a two year conditional sentence to be served in the community.

On March 22, 2006 BC Ferries vessel Queen of the North sank after going off course and running aground killing two passengers. The ferry navigation officer was charged with two counts of criminal negligence causing death. The officer was reported to have been distracted by a personal interaction he was having with another person and did not realize the vessel was off course. On June 24th, 2013, he was sentenced to 4 years in prison and banned from operating a vessel for 10 years. An appeal has been filed.

On April 19, 2004 near the city of Newmarket, Ontario a worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charge under section 217.1 of the Criminal Code with one count of criminal negligence causing death. In March 2005, the charges of criminal negligence against the site supervisor were dropped in an apparent plea bargain which saw the supervisor agree to three of eight charges under the Ontario Occupational Health and Safety Act and a fine of $50,000 with a 25% victim surcharge.

5. Who does Bill C-45 affect?

These provisions of the Criminal Code affect all organizations and individuals who direct the work of others, anywhere in Canada.  These organizations include federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations.

6. Why was Bill C-45 created?

Bill C-45, also known as the "Westray Bill", was created as a result of the 1992 Westray coal mining disaster in Nova Scotia where 26 miners were killed after methane gas ignited causing an explosion.  Despitet serious safety concerns raised by employees, union officials and government inspectors at the time, the company instituted few changes.  Eventually, the disaster occurred.  After the accident, the police and provincial governement failed to secure a conviction against the company or three of its managers.  A Royal Commission of Inquiry was established to investigate the disaster.  In 1998, the Royal Commission made 74 recommendations.  The findings of this commission were the movement that led to Bill C-45.

7. What is Bill C-45?

Bill C-45 is federal legislation that amended the Canadian Criminal Code and became law on March 31, 2004.  The Bill established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death.  The Bill provided new rules for attributing criminal liability to organizations, their representatives and those who direct the work of others.  Bill C-45 added Section 217.1 to the Criminal Code which reads, "217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily hard to that person, or any other person, arising from that work or task."  Bill C-45 also added Sections 22.1 and 22.2 to the Criminal Code imposing criminal liability on organizations and its representatives for negligence (22.1) and other offences (22.2).

8. Who is responsible to create a healthy safety culture in the workplace?

Everyone.  A good safety culture must be promoted by senior managements' commitment to safety, realistic practices for handling hazards, continuous organizational learning, and care and concern for hazards shared across the workforce.  If there is a break in the chain where "Safety As a Value" is not considered important, there is a good chance that the safety culture will stop there as well. 

9. What is a HSE Management System?

A HSE Management System is a process put in place by an employer to minimize the risk of injury and illness to employees.  This is made possible by identifying, assessing and controlling risks to workers in all workplace operations.

10. What are the benefits of being COR certified?

1.  By achieving COR, employers are able to demonstrate to buyers (especially in the construction industry) that their HSE management system has been developed, implemented, and evaluated on an annual basis through comprehensive internal and external audits.

2.  Your safety program will comply with COR national standards, since all stipulations have been endorsed by participating members of the Canadian Federation of Construction Safety Associations (CFCSA).

3.  Protecting the health and safety of all workers at all times is the right thing to do.  Effective development and maintenance of a HSE management system is a proactive approach to eliminating workplace injuries and illnesses.

4.  Organizations that are registered in the COR program may qualify ahead of others for certain jobs.  Buyers of construction (and other industries) can make COR a requirement for contractors bidding on jobs in order to be more confident in the contractor's health and safety performance.

5.  Organizations that are registered in the COR program demonstrates a commitment to a strong culture of safety, and will attact safety-conscious workers.

6.  Providing immediate proof that you have an effective HSE management system in place will give your organization a competitive advantage.