Due diligence. It is a catch-all phrase to end all catch-all phrases.

There is no question that the term “due diligence” is prevalent not only in many occupational safety regulations and in many defenses in court, but such a term has been difficult to codify. Many courts in North America have had this issue before them and very few of them seem to agree on what constitutes due diligence in regards to worksite safety. It is this general subjectiveness of the term that seems to contribute to uneven and inconsistent rulings in many workplace safety cases.

[Image courtesy of Flickr user Chris Potter via a Creative Commons license]

[Image courtesy of Flickr user Chris Potter via a Creative Commons license]

However, a recent case in Ontario seemed to be the first real attempt by a court to determine at least in some respect how due diligence can be defined. In this case, which I will cover here, an appeals court overturned a company’s acquittal of safety code violations. The trial court determined that the company had indeed used “due diligence,” whereas the appeals court said it had not, and actually described what it deemed as due diligence, giving a glimpse into setting some sort of standard of care for companies to clear in order to meet the due diligence threshold. Is this making law or re-writing it in the courts? This is not for me to say or for us to argue (we all have our opinions), but I will go over the case here and let you in on the court’s logic in its opinion.

Details of the Case

A commercial fishing company that was operating on Lake Erie (the Canadian side) was required to submit Daily Catch Reports, or DCRs, to provincial authorities. The Ministry  installed a tracking device on one of the ships and when it was docked, authorities boarded the ship and took three logbooks for inspection. The Ministry determined and claimed that the tracking device and the logbooks did not align, signifying that the ship’s captain had provided false or misleading information on the DCRs. The Ministry charged the fishing company with violations of provincial and federal fishing laws.

The Result

The company claimed due diligence with its logbooks and DCRs, saying that the company does its best to ensure that records are complete and accurate through regular interviews with captains and having compliance meetings periodically. The trial court found that was enough due diligence to throw out the Ministry’s case against the fishing company, so it was acquitted of all charges. But the government appealed the decision.

The Appeal Decision

The appeals court overtuned the acquittal, convicting the company of the violations because it ruled that there actually was not due diligence, and that the bar was set too low in this case. The appeals court said that due diligence must be proved by the fishing company by describing a system of compliance that shows a willing and positive intent to be within rules and regulations, and that what the company did was inadequate to meet that threshold. The appeals court ruled that the fishing company did not show any real system of compliance at all, leaving records and DCRs to the captain’s “good judgment,” and the director of the company not pressing any positive responses from the captain regarding compliance.  Just leaving the captain to his word is not enough, the court ruled, especially in the case of this particular captain, who had a reputation for fudging the books and having difficulty remaining in compliance.

Moral of the Story

When it comes to workplace safety, the burden of proof falls on the company to prove it meets a due diligence threshold. It cannot just claim “due diligence” without demonstrating an actual system or program of compliance. It isn’t enough to just fill out forms as regulations require; in this case, the appeals court wanted to see a culture of compliance that showed the company has pure intentions to be compliant.

Consider this a warning. Be more than the forms in your safety compliance program.