In prosecutions under the Occupational Health and Safety Act it is common for the Ontario Ministry of Labour to rely on the old chestnut that an accused employer cannot show due diligence in respect of a charge if it cannot establish that it took all reasonable measures to avoid the offence.

In practice it is often the case that the Crown can point to at least one thing that was arguably reasonable for the employer to have done prior to an accident, but which it did not do. Often this “negligence” on the part of the employer is conceived with the benefit of hindsight and is not viewed through the prism of what was reasonably foreseeable prior to the accident.

However, this approach of finding something, anything, that was reasonable to have been done to defeat a due diligence defence has never been entirely correct in the eyes of the law. Thankfully a recent Court decision reminds us of that.

In R. v. Thomas Fuller and Sons Ltd. the Ontario Court of Justice found that the Crown failed to prove beyond a reasonable doubt the charge against the accused employer, which was to the effect that a wooden brace used in a construction project was not designed and constructed to withstand the forces likely to be exerted against it.

The Court also determined that the employer had been duly diligent in the circumstances. Of particular note, the Court rejected the Crown’s argument that the employer was negligent, and therefore not duly diligent, in failing to involve a professional engineer in designing the equipment which was involved in the accident. As the Court wrote:

Nor am I dissuaded by the failure of Thomas G. Fuller& Sons Ltd. to obtain engineering assistance or to put gauges on the system to measure the force it was exerting. Justice Power already resolved this matter when he held that there was no necessity to have the installation process designed by a professional engineer or for forces to be calculated. Even leaving that holding aside I am of the same mind. Due diligence did not require these steps be taken. I am making this finding knowing that it is common for the cases in this area to recite that “it is open to the accused to avoid liability by proving that he took all reasonable care,” a phrase that might in isolation suggest that since engineering consultations and gauges are reasonable steps to take, the failure to do so precludes due diligence. As a matter of law, though, the phrase “all reasonable care” cannot and is not understood to require the accused to take each and every precaution that would be reasonable to take in the circumstances. As indicated, 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.” In other words, the call for “all reasonable care” is an abridged call demanding“ all reasonable care that a reasonable [person] would have taken in the circumstances.” This is why it is possible to refer at the same time in the case-law to “all reasonable care” and to “efforts amount[ing] to a minimally acceptable exercise of due diligence.” Of course it would have been reasonable in the circumstances for Thomas G. Fuller & Sons Ltd. to have consulted with engineers and to have put gauges on the device, or even to use a steel structure instead of wood one, but for the reasons given a reasonable person would not, in all of the circumstances, have been expected to do so.

For the Court then, the notion of “all reasonable care” does not simply mean what reasonable steps the mind can conceive of, after the fact. Rather, it appears that it is imbued with a sense of reasonable foreseeability. Put another way, the assessment of “all reasonable care” is arguably limited by an understanding of what the law requires an employer to do, and is willing to punish and stigmatize for failing to do.

To me this appears to be the correct principled approach to follow under a regime of quasi-criminal liability. Employers should not be punished and stigmatized for the mere fact of not being perfect, for being human. They should only be punished and stigmatized when what they have done (or failed to do) is reprehensible in the eyes of the law.