As noted last week, Canadian OHS laws include the equivalent of a general duty clause requiring employer to keep the workplace generally safe and eliminate foreseeable hazards that aren’t specifically addressed in the regulations. And, as in the U.S., the general duty clause has been interpreted as covering risks like workplace violence, ergonomics and working in isolation. (However, many provinces have also adopted specific regulations dealing with these hazards.)

The duty to address foreseeable hazards is also at the center of the due diligence defence, which allows employers to avoid being held liable for an OHS violation if they can prove they took all reasonable steps to comply and prevent the hazard. In judging whether a company took all reasonable steps, courts consider if a hazard was foreseeable. The evidence of recognition sketched out in the FOM—actual knowledge, industry knowledge and common sense—would also serve as evidence of forseeability for purposes of determining due diligence.

Substantively, then, Canada follows roughly the same due diligence scheme as the U.S. The big difference is that in Canada, there’s no FOM or other source of written guidance on what makes a risk forseeable—other than precedent from actual court cases. However, the FOM guidance might not only influence regulators in Canada to create similar guidelines but influence how courts in prosecutions evaluate whether defendants showed due diligence.

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