Due diligence and the duty to supervise

In June, a Tallgrass labourer named Kyle took off his harness to reach a dropped tool on the level 7 slab edge, stepped over the guardrail to retrieve it from a ledge, and was spotted by the a safety and health officer from the Branch who happened to be on site for an unrelated complaint. Nobody was hurt. The officer asked Carla Mendes, the superintendent, a simple question: 'What has Tallgrass done to make sure this does not happen?'

How Carla answers that question decides whether Tallgrass is held responsible for Kyle's choice. It is the question at the heart of this lesson: what the law expects an employer and its supervisors to do before something goes wrong, and how they prove they did it.

Strict liability and the due diligence defence

Most offences under Manitoba's Workplace Safety and Health Act, like those under other Canadian safety laws, are strict liability offences. That idea comes from the 1978 Supreme Court of Canada decision in R. v. Sault Ste. Marie. The Crown does not have to prove that the employer intended the violation or knew about it; it only has to prove that the prohibited act happened, for example that a worker was exposed to a fall hazard without protection. The burden then shifts to the accused, which can escape conviction by proving, on a balance of probabilities, that it took all reasonable care to prevent the violation. This is the due diligence defence. The Act's duties are qualified by the words 'so far as is reasonably practicable', which point to the same standard: everything that could reasonably be done, weighing the risk against the cost and difficulty of the measures.

Due diligence is not something an employer can assemble after the fact. Courts look at what was in place before the incident: the hazard was foreseeable, so what had the employer done about it? A company that identified the hazard, set clear rules, trained its workers, supervised them actively and enforced the rules consistently, and can show records of all of that, has a good chance of establishing due diligence. A company with a binder of policies that nobody follows does not.

The five building blocks

Whatever the legal name, the same five building blocks show that an employer took reasonable care. Tallgrass's safety program is built around them.

• Hazard identification. The employer knew, or should have known, about the hazard because it looked for hazards systematically: hazard assessments, pre-task plans, inspections and incident investigations.
• Rules and procedures. There was a clear written rule or safe work procedure that addressed the hazard, specific enough that a worker would know what to do.
• Training and competence. Workers were trained in the rule and the skills it required, in a language they understand, and the employer checked that they understood.
• Supervision. Competent supervisors were present, watched the work and corrected unsafe acts as they happened.
• Enforcement. When rules were broken, the employer acted consistently, from coaching through written warnings to removal from site, and the same rules applied to supervisors and high performers.

Underneath all five sits a sixth element: records. A training session that is not recorded is hard to prove. An inspection that found and fixed a hazard but left no record looks, a year later, like no inspection at all.

What Carla could show

Carla answered the officer by pulling up the records for the level 7 slab edge. The site-specific safety plan named slab edge work as a hazard and required guardrails and, wherever work happened outside them, a harness tied to an approved anchor. Kyle had signed his orientation on his first day, which included the 100 percent tie-off rule outside guardrails, and had attended a toolbox talk on dropped objects two weeks earlier. His foreman's pre-task plan for that morning listed the slab edge and the tie-off rule. The daily inspection log showed the guardrail checked at 7:10 a.m. And the discipline log showed that Tallgrass had issued two written warnings and one removal from site for tie-off violations in the previous four months, including one to a foreman.

Kyle received a written warning and a one-day suspension under the site's progressive discipline policy, and he and his crew had a short retraining session on retrieving dropped tools: stop, call the foreman, and use a tool retrieval method or an aerial lift, never step over the rail.

The officer issued an improvement order requiring Tallgrass to review its tool tethering practice at the slab edge, but because Tallgrass could show its system was real and enforced, she did not recommend prosecution or an administrative penalty.

The duty to supervise

Manitoba's Act requires employers to provide competent supervisors and gives supervisors their own duties in section 4.1. The regulation defines a competent person as one who is qualified because of knowledge, training and experience to do assigned work in a manner that will ensure the safety and health of every person in the workplace, and who is knowledgeable about the provisions of the Act and regulations that apply to the work. Supervisors on a construction site should meet that standard for the work they supervise. A foreman who does not know the fall protection rules cannot supervise fall protection.

Supervising means more than being on site. A good supervisor plans the work so that the safe way is the easy way, briefs the crew at the start of each task, watches the work and corrects problems on the spot, and steps in when conditions change. Tallgrass's supervisor standards, which every Tallgrass foreman and every subcontractor foreman agrees to at orientation, set out what that means in practice.

Criminal liability

Since 2004, the Criminal Code has included section 217.1, added after the Westray mine explosion in Nova Scotia killed 26 miners in 1992. It says that everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work. Breaching that duty can lead to charges of criminal negligence causing death or bodily harm, against organizations and individual supervisors and managers. Criminal prosecutions remain rare compared with prosecutions under provincial safety laws, but there have been convictions of both companies and individual supervisors in construction cases. The best protection against criminal liability is the same as the best defence under the Act: a real, enforced system of reasonable steps.

Measuring the strength of a due diligence file

Owen keeps a simple scorecard for each major hazard on the site, showing which building blocks have evidence behind them. He reviews it monthly with Carla and the project manager, Adaeze Okoro.

# Evidence scorecard for the slab edge hazard on level 7.
elements = {
    "hazard identified in site plan": True,
    "written rule (guardrail or 100% tie-off)": True,
    "worker trained (orientation, toolbox talk)": True,
    "pre-task plan that day": True,
    "inspection record that morning": True,
    "discipline history for this rule": True,
    "tool tethering rule": False,
}
have = sum(elements.values())
print(f"evidence for {have} of {len(elements)} elements")
for name, ok in elements.items():
    print(("  ok    " if ok else "  GAP   ") + name)
gaps = [k for k, v in elements.items() if not v]
print("action:", "close gaps: " + ", ".join(gaps) if gaps else "none")

evidence for 6 of 7 elements
  ok    hazard identified in site plan
  ok    written rule (guardrail or 100% tie-off)
  ok    worker trained (orientation, toolbox talk)
  ok    pre-task plan that day
  ok    inspection record that morning
  ok    discipline history for this rule
  GAP   tool tethering rule
action: close gaps: tool tethering rule

The gap in tool tethering was exactly where the officer's attention landed. Within a week, Tallgrass required tethers for hand tools used within 2 m (6 ft) of any unprotected edge and issued tool lanyards to every crew working at the slab edge.

Due diligence for subcontractors' workers

Tallgrass's due diligence is not limited to its own employees. As prime contractor, it must show that it took reasonable care to coordinate and oversee the whole site. That means its file must also show what it did about hazards created or faced by subcontractors: that it reviewed their programs, that its site walks covered their work areas, that it raised deficiencies with their foremen, and that it followed up until each one was closed. A deficiency log that shows a hazard was raised on Tuesday and still open on Friday, with no escalation, is evidence against Tallgrass, not for it.

Owen's rule of thumb is that a serious hazard raised with a subcontractor foreman should be fixed before the end of the shift, or the work stopped until it is. Lesser deficiencies get a date. If the date passes, the issue goes to the subcontractor's project manager in writing, and if it still is not fixed, to Tallgrass's project manager, who can withhold payment or remove the subcontractor's crew under the subcontract. Each step is recorded.

The supervisor's own protection

Supervisors sometimes see due diligence as paperwork that protects the company at their expense. It works the other way. A foreman who can show that he briefed the crew, inspected the work, corrected the hazard he saw and reported the one he could not fix has done his legal duty and protected himself. A foreman who signs pre-task plans he did not discuss, or who ignores a crew working untied because the job is behind, has put himself personally in the line of fire if someone is hurt.

Tallgrass's supervisor training makes this point with a simple exercise. Foremen are given a short scenario, such as a worker on a ladder above an open stairwell, and asked to write down, in order, what they would do and what they would record. Most quickly list the actions: stop the work, move the ladder or protect the stairwell, brief the worker. Far fewer remember the record: a note in the daily report, an entry in the deficiency log if another trade created the hazard, and a line in the next pre-task plan. The exercise ends with the reminder that both halves matter, because a hazard fixed without a record can look, months later, like a hazard ignored.