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OHS Due Diligence: Building and Documenting a Defence
Faculty of Human ResourcesWorkplace Safety
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A regulatory inspector from the provincial occupational health and safety authority arrived at a mid-sized metal fabrication facility in central Alberta 3 days after a worker suffered a serious crush injury while operating a hydraulic press. The injured worker, a machine operator with 14 months of employment at the facility, sustained multiple fractures to his left hand and forearm when the press cycled unexpectedly during a clearing procedure. The injury required surgical intervention and would keep the worker off the job for an estimated 6 to 8 months. The inspector's arrival marked the beginning of what would become an extensive investigation into the employer's safety practices, documentation systems, and supervisory arrangements.

The facility employed approximately 85 workers across 2 production shifts and had operated under the same ownership for 11 years. The operations manager, who also held responsibility for health and safety matters, met with the inspector and began producing documents in response to formal requests. The inspector asked for the written safety program, hazard assessments for the hydraulic press operation, training records for the injured worker, competency verification documentation, supervision logs, and records of any previous incidents involving similar equipment. Over the following weeks, the inspector would interview supervisors, review maintenance records, examine the physical safeguards on the equipment, and assess whether the organization's documented safety systems reflected actual workplace practices.

The organization did have a written safety manual, last revised 4 years earlier, and maintained some training records in a combination of paper files and spreadsheet entries. Hazard assessments existed for several production processes but had not been updated following equipment modifications made 18 months prior. The supervisor on duty at the time of the incident had been promoted to the role 7 months earlier and had received informal orientation to supervisory responsibilities but no documented training on safety supervision obligations. The injured worker's training file contained a signed acknowledgment form from his initial orientation but no subsequent competency verification records despite the worker having transitioned to operating the hydraulic press 5 months into his employment.

As the investigation proceeded, the employer faced mounting questions about whether its safety program, training documentation, supervision practices, hazard assessments, and incident response procedures would meet the standard required to establish a due diligence defence. The HR manager and operations manager began working with external advisors to understand what regulators and courts look for when assessing whether an employer took all reasonable precautions, and to evaluate whether the organization's existing documentation could support such a defence or whether critical gaps would undermine its legal position.

Hazard Assessment Documentation and Its Role in Due Diligence

Hazard assessment documentation represents one of the most critical components of any occupational health and safety program, serving as both a foundational tool for preventing workplace injuries and a cornerstone of due diligence defence when incidents occur. Across Canadian jurisdictions, employers bear a fundamental duty to identify workplace hazards, assess their associated risks, and implement appropriate controls to protect workers from harm. This duty arises from a combination of statutory requirements under federal and provincial occupational health and safety legislation, common law obligations to provide a safe workplace, and the general duty clause provisions found in every Canadian jurisdiction's safety framework. Understanding how to properly document hazard assessments goes beyond mere regulatory compliance; it establishes the evidentiary foundation that employers may need to demonstrate they took all reasonable precautions to protect worker safety, which is the essential element of any due diligence defence when facing prosecution under occupational health and safety statutes.

The legal basis for hazard assessment requirements varies across Canadian jurisdictions, though the underlying principle remains consistent: employers must take proactive steps to identify and address workplace dangers before they result in injury or illness. Under the Canada Labour Code, as of the date of authorship, federally regulated employers must develop and implement a hazard prevention program that includes systematic identification and assessment of hazards, implementation of preventive measures, employee training, and regular program evaluation. Provincial legislation establishes similar requirements, though the specific terminology and procedural mandates differ. Alberta's Occupational Health and Safety Act, as of the date of authorship, explicitly requires employers to assess a worksite and identify existing and potential hazards before work begins and when work processes or operations change. British Columbia's Workers Compensation Act and its associated regulations require employers to conduct risk assessments and implement measures to eliminate or minimize risk of injury. Ontario's Occupational Health and Safety Act establishes the employer's general duty to take every precaution reasonable in the circumstances for the protection of workers, which courts and tribunals have consistently interpreted to include hazard identification and assessment obligations. Saskatchewan's employment and safety legislation similarly mandates hazard assessment processes, particularly in designated high-risk industries. Quebec operates under the Act respecting occupational health and safety, which establishes a prevention program framework requiring employers to identify risks and implement corrective measures, though its administration through the Commission des normes, de l'équité, de la santé et de la sécurité du travail reflects Quebec's distinct approach to labour law administration that differs from common law provinces.

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