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Why the Company Must At Least Consider Complying with Voluntary Safety Standards
A metalworker in Alberta was killed after his clothes got entangled in a conveyor belt roller. The
worker had apparently crawled under the conveyor and gotten caught in the return belt idler. The
company was charged with several OHS violations. The AB OHS Act required employers to
install “effective safeguards” on machinery. But neither the Act nor its regulations defined what
“effective safeguards” meant. So to determine what was “effective,” the court looked at a
voluntary standard of the American Society of Mechanical Engineers (ASME), which require
guarding against inadvertent contact but don’t require guarding of a return belt idler. Here, the
contact probably wasn’t inadvertent because the worker had crawled under the conveyor, the
court said. And the company’s decision to guard the roller only on the side facing the worker
when he was at his work station conformed with the ASME standards. So the court dismissed all
charges against the company [R v. Maple Leaf Metal Industries Ltd.].
THE PROBLEM
The OHS laws and regulations set out the minimum steps a company must take to protect
workers. Companies are, of course, free to do more than the law requires to safeguard their
workers.
One option is to comply with—or at least consider complying with—voluntary safety
standards established by nongovernmental standards setting organizations, such as the Canadian
Standards Association (CSA) and the ASME. Although complying with these standards is
voluntary, doing so can help a company prove that it exercised due diligence and thereby avoid
liability for incidents and injuries. That’s what happened in the Maple Leaf Metals case. Here’s
how complying with a voluntary standard can help a company and its officers and directors
reduce their risk of liability.
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THE EXPLANATION
To establish a due diligence defence, a company must show that it made “all reasonable efforts”
to protect the health and safety of its workers and prevent OHS violations. When a company is
charged with an OHS violation, the court will consider whether the company did everything
reasonable under the circumstances to prevent the incident. But how does a court decide what a
company should reasonably have done?
One way is by looking at whether the company complied with voluntary safety standards.
Thus, the fact that the machine guarding measures used by the company in the Maple Leaf
Metals case complied with ASME standards was a crucial factor in the court’s ruling that the
company had exercised due diligence. It can work the other way, too. In other words, just as
complying with a voluntary standard helps to prove due diligence, failure to comply with a
voluntary standard is evidence of a lack of due diligence on the part of the company and/or its
officers and directors.
Example: A worker in Ontario lost three fingers when his hand got caught in a machine.
The OHS regulations required the nip hazard to be guarded, but didn’t say what guarding device
should be used. However, a CSA standard on machine guarding did specify requirements for the
guarding device. The court cited the company’s failure to comply with the CSA voluntary
standard in ruling that the company had not exercised due diligence to avoid a machine guarding
violation [R v. Grant Forest Products Inc.].
SOLUTION
I’m not suggesting that complying with voluntary standards is the only way to establish due
diligence. In fact, not all voluntary standards are appropriate for all companies. However, it is
essential for all companies, including ours, to at least consider complying with voluntary
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standards. After all, voluntary standards represent a judgment of what should be done to protect
against particular hazards. So if we don’t comply with them, we should at least be able to prove
that we examined the standards and discussed whether they would be appropriate for the
company.
WHAT TO DO
In order to protect the company—as well as yourself and fellow officers and directors--against
the risk of liability, you must be aware of the importance of voluntary safety standards and:
> Stay up to date on the voluntary safety standards applicable to the industry;
> Consider compliance with all relevant voluntary safety standards; and
> Document why the company chose to comply with—or not to comply with—a certain
voluntary safety standard.
For example, the CSA has adopted a brand new safety management system standard
called CSA Z1000. The standard represents an important consensual agreement about what
Canadian companies should do to manage their safety programs. As such, it is likely to carry a
lot of weight with regulators, prosecutors and judges. As CEO, it’s essential that you and your
fellow officers understand what the standard says and at least consider whether to adopt it. At a
very minimum, you must:
> Obtain a copy of CSA Z1000;
> Read the standard and become familiar with what it says; and
> Discuss with me, the safety coordinator, the merits of complying with the new
standard.
SHOW YOUR LAWYER
R v. Grant Forest Products Inc., [2002] O.J. No. 3374, July 26, 2002
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R v. Maple Leaf Metal Industries Ltd., [2000] A.B.P.C. 95, June 22, 2000