Due diligence

A good story told through documents

By Jeremy Warning

It is commonly understood that a party charged under the Occupational Health and Safety Act can avoid liability by proving due diligence: all reasonable care to avoid the alleged contravention. In that regard, due diligence can be considered an explanation. It is a story that excuses behaviour that might otherwise lead to punishment.

Consequently, the more detail and information that can be provided, the more compelling the explanation can become. The opposite is also true in that a lack of detailed information can make good due diligence evidence less compelling. For those reasons, having an effective system to document positive due diligence efforts is key to being able to provide a detailed explanation should the need arise.

In order to establish due diligence, it must be shown that all reasonable care was taken in the particular circumstances. The challenge this creates for a documentation system is that the particular circumstances will not be known until it becomes time to prove due diligence — following a serious workplace accident for instance.

Think ahead

As such, the significance of a particular positive step — the worker orientation, safety meeting, tool box talk, corrective instruction, workplace inspection/monitoring, on-the-job training, or discipline — will likely not be apparent at the time it occurs. However, this difficulty can be addressed through a system in which there is consistent and comprehensive documentation of all positive steps. Doing this will best ensure a system that is based on the creation of a broad range of documentation.

It is one thing to ensure that documentation is created in relation to positive due diligence steps. However, because showing due diligence may require the demonstration of a pattern or system of conduct over time, the effort in doing so could be for naught if the documentation that is created is not readily useable. In terms of usefulness, common ways that documentation may be deficient includes that it contains little or no detail or that it is not understandable.

Detail is important because the event(s) that are recorded in the document may have taken place a long time before the document is needed to prove due diligence. Memories fade over time and the person who created the document may not be available when the document becomes significant. These challenges can be overcome by paying particular attention to the content of the document. The greater the detail in the document, the more useful a memory aid it will be and the more the document will be able to speak for itself.

Others will read it

Difficulties can arise in understanding due diligence documents if they are not legible or if the information contained in the document is not readily understood by people other than the author. Again, this can be addressed by ensuring that, at the time the document is created, it is legible and that the information set out in the document can be readily and completely understood by anyone reading it.

All of the efforts to ensure that documentation is created and is useful are significantly undermined if the documentation is not kept. As such, an effective documentation system should provide for a means to retain the documentation that has been created. In addition, OHS regulators, such as the Ministry of Labour, expect that organizations will be able to produce documentation relating to health and safety — particularly in relation to training. As such, the retention of documents enhances the ability to demonstrate both due diligence and compliance with health and safety obligations.

There are numerous ways that organizations can ensure that its due diligence documentation system is as effective as possible. Those ways include:

Supervisor logs:  Some of the best and most positive due diligence information can come from supervisors who may be monitoring work activity, providing corrective action or addressing health and safety issues raised by workers. Capturing these kinds of activities can be done by having supervisors keep a log of their activities, which will assist both the organization and the supervisor in providing detailed information about the positive steps taken by supervisors.

Relevant details:  The details that should be recorded are those that add context to the positive steps. This may mean adding information to workplace forms and checklists and, while an almost endless list of details could be suggested, relevant details could include: the length and specific content of training or instruction; the specific areas or activities reviewed during a workplace inspection; and the health and safety issues arising from such inspection and the steps taken to address them.

Document for someone else:  Approaching documentation like it will need to be understood by someone other than the author will best ensure that it is useable. This includes ensuring that documentation is legibly completed and does not contain shorthand or abbreviations that are particular to the author or a departure from typical terms or expressions in the workplace. After all, should due diligence need to be demonstrated, the documentation may need to be understood by other members of the organization, the Ministry of Labour, lawyers and the courts.

Jeremy Warning practices occupational health and safety law at Heenan Blaikie LLP in Toronto.

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