Fresh look at old due diligence defence

Norm Keith

Paciocco’s decision in Thomas G. Fuller is a refreshing review of the classic second branch of the due diligence defence. It also brings us back to the reality of what the purpose and intent of the Supreme Court’s seminal decision in R.v. City of Sault Ste. Marie that set down the two branches of the defence of due diligence.

The prosecution of Thomas G. Fuller & Sons Ltd., for the second time, resulted from the workplace death of Yves Blondin, the employee of a subcontractor to Fuller in a construction project in Ottawa. The project involved the installation of large diameter concrete pipe outside the Fleet Street pumping station of the City of Ottawa. The subcontract worker suffered fatal head injuries when a four-by-four piece of wood frame, used as bracing to assist a winch system, failed.

Fuller had been prosecuted, with the subcontractor, as a result of the Feb. 21, 2006 fatality. The joint trial resulted in a dismissal of some charges, and a conviction of both Fuller and the subcontractor on one count each under Ontario’s Occupational Health and Safety Act.

On appeal, Justice Denis Power acquitted both appellants on the grounds they had established the second branch of the due diligence defence.

The original statement of the test for the due diligence defence was first clearly articulated by the Supreme Court of Canada, in the Sault Ste. Marie decision. The court held there were three categories of offences in Canadian law. Occupational health and safety as well as environmental charges, which were the subject of the Sault Ste. Marie prosecution, were held to be a so-called “halfway house” between true crimes and minor absolute liability offences. Those offences —known as either strict liability, regulatory or public welfare offences — do not require proof of criminal intent, but did allow the accused a defence of due diligence.

The due diligence defence has two branches, either of which may be established as a complete defence to strict liability charges. The first branch is based on the idea that if the accused reasonably believed in a mistaken set of facts which, if true in the circumstances, would render the act or omission innocent. This is often referred to as the “mistake of fact” branch of the due diligence defence. The second branch — often referred to as the “classic” due diligence defence — is when the accused can prove on the balance of probabilities that it took every reasonable precaution to ensure it did not commit the offence.

It was the latter branch of the due diligence defence that was the critical aspect of Paciocco’s decision in the Fuller retrial. Although several other legal issues were considered — and to some extent important for the decision — it is the comments of the trial judge that are most helpful for employers in attempting to understand and practice in their workplaces the ever elusive health and safety management system that will establish the second branch of the due diligence defence. Paciocco gives us guidance on three particular aspects of this area of law.

First, the court said “due diligence is in law the converse of negligence.” In other words, the onus is clearly on the defendant — Fuller, in this case — to prove that reasonable care was taken in the circumstances such that the accused was not negligent. If the accused can prove they were not negligent, in that they took reasonable precautions to ensure compliance with legislation in the safety of workers, they must be acquitted.

Second, it is important to recognize that due diligence is not a generic enquiry into the overall reasonableness of the conduct of the accused. Did the accused exercise due diligence in attempting to ensure that its design and construction were suitable for the task at hand? This involved a somewhat detailed review of the evidence: the instructions of the manufacturer of the hyperson pipe, prior experience of Fuller and its staff in installing this pipe and the use of the four-by-four wood frame, with full attachments, to move the pipe into place. The corporate defendant relied upon the manufacturer instructions and industry standards in the design and construction of the wooden brace. In doing so, with the wood frame and the winch system as a guide to achieve alignment, conduct was deemed by Paciocco to be reasonable.

Third, alternative steps suggested by the Ministry of Labour prosecutor at trial were argued to be reasons why the due diligence defence had not been made out in the trial. The prosecutor argued Fuller failed to consult with a professional engineer, have a stress-gauge on the winch device and make calculations with respect to the strength of the wood — steps that Fuller ought to have taken, but did not. These failures, according to the Ministry of Labour prosecutor, prevented the defendant corporation from successfully raising the due diligence defence.

However, the trial judge said, “...due diligence is a negligence-based standard. The pertinent question is whether the accused took all of the care that a [reasonable person] might have been expected to take in the circumstances.”

The court went on to hold that due diligence did not require the steps cited by the prosecution as the steps that could have been taken by the defendant but were not taken. In other words, the second branch of the due diligence defence cannot be understood to require the accused to take each and every precaution that would be reasonable to take in the circumstances.

Fuller was found not guilty of the charge of failing, as a constructor, to ensure the project was designed and constructed to support or resist all loads and forces to which it was likely to be subjected. The fact the wood frame and winch system were designed and constructed to be used by experienced pipe fitters, under the supervision of the project supervisor, for the purpose of aligning and installing pipe, was reasonable in all of the circumstances.

This “snap back to reality” permits employers, managers and supervisors to invest in OHS management systems, and then to successfully defend health and safety charges when every reasonable precaution in the specific circumstances of each case has been taken.

The decision would also now preclude Ministry of Labour prosecutors from offering up alternative steps that ought to have been taken, as a means of undermining or putting into question the availability of the due diligence defence.

Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.