Measuring Mens Rea: Using IRS Audits to Avoid Bill C-45 Liability

Dr. Peter Strahlendorf School of Occupational and Public Health Ryerson University April 2005 Introduction

What does Bill C-45 mean to you? … a. nothing has changed b. major changes for individuals, not much change for corporations c. major changes for corporations, not much change for individuals d. major changes for individuals and corporations Introduction

What does Bill C-45 mean to you? … a. what used to be just a regulatory offence now has a criminal penalty b. not taking reasonable care is now a criminal offence c. criminal prosecutions for OHS will become routine d. criminal negligence is something very different than regulatory offences Introduction

In light of Bill C-45, we should: a. roll over and play dead b. scare supervisors in order to motivate them and scare senior management in order to get a bigger OHS budget c. do more of what we’re doing d. measure personal responses to knowledge of high risk, along with OHS system improvements, and then do “c” Introduction

“… everyone knew about the hazard before the accident.” “… we complained about the hazard but nothing was done.” “… it happened before (a close call)”. What those Statements Reveal…

1. knowledge of high risk 2. where there was a duty to respond to risk 3. no action

= criminal negligence

Police and inspectors are now listening closely for those kinds of statements. Agenda

• refresher on Bill C-45 • refresher on the IRS • how we can measure a critical element of potential criminal negligence through an IRS audit • what then to do? Just to be Clear !!

If you’re aiming for world class safety, then criminal negligence will be taken care of.

If you’re aiming JUST to avoid criminal negligence, then you’re not likely to achieve world class safety (and maybe not even compliance with regulatory law). Not to Sully the Concept

IRS audits can assist with reaching world class performance, as a proper IRS audit will be measuring creativity and continuous improvement. An IRS audit (or a group of questions within the total audit) can also measure vulnerability to criminal negligence, by focusing on personal knowledge of high risk and lack of response thereto. Part of the Response to Bill C-45 We are not Looking at Today A full response to C-45 requires: 1. an IRS audit (and action based on it) 2. an OHS system audit (and action based on it)

We are not focusing on #2 today. Bill C-45 Overview From Bill to Act

Bill C-45 An Act to Amend the Criminal Code (Criminal Liability of Organizations)

Received Royal Assent Nov 7, 2003 Takes effect March 31, 2004

Citation: Statutes of Canada, 2003, c.21 Summary from the Bill itself This enactment amends the Criminal Code to

(a) Establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives; Summary from the Bill itself This enactment amends the Criminal Code to

(b) Establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public; Summary from the Bill itself This enactment amends the Criminal Code to

(d) Provide optional conditions of probation that a court may impose on an organization. Bill C-45

• Who will this affect? Corporations or individuals? • Does it create new liability or just make it easier to prosecute under prior criminal law? • Does it cover more than OHS? • If you are already duly diligent, how does this Bill change anything? • How do senior people ensure compliance? Bill C-45

• Can you measure potential vulnerability and compliance? • If you can, what steps should you then take to immunize against Bill C-45? An Initial Distinction

Three Types of Liability

1. Criminal – Criminal Code of Canada 2. Regulatory – OHSA or EPA 3. Civil – Lawsuits, e.g. in negligence Criminal versus Regulatory

Why is it worse to be convicted under the Criminal Code than under a provincial or federal regulatory Act?

• Jail terms much longer • Fines high (altho’ sometimes lower) • Stigma of criminal conviction • Criminal record (employment/travel implications) Common Error

Even though you can go to jail for breach of a regulatory Act such as the OHSA or EPA, a conviction is not a true criminal conviction… it is “quasi-criminal”. Key Point

A regulatory prosecution is a very different kettle of fish than a criminal prosecution.

Do not confuse them.

They are related, tho’, since a breach of a regulatory duty can be Step One of a criminal negligence prosecution. Historically

It has always been possible to prosecute a corporation or an individual for criminal negligence in the workplace.

Prosecutions have been few, convictions even rarer. The Westray Case Origin of Bill C-45 In 1992, 26 miners at the Westray coal mine in Nova Scotia died in an explosion.

Two managers were charged with criminal negligence. Charges were eventually withdrawn. The CEO was never charged.

There was a judicial enquiry – the Richards Inquiry – which recommended increased criminal liability for lack of workplace safety. 2 Westray Managers to be Charged over Deaths

Halifax (CP) - The top two managers at Westray mine when an underground explosion killed 26 employees will face criminal charges along with owner Curragh Inc., their lawyers confirm.

Former underground manager Roger Parry, who now lives in Alberta, heard "straight from the RCMP" that he will be charged with manslaughter and criminal negligence causing death, his Halifax lawyer, Robert Wright, said Friday. And Bruce Outhouse of Halifax, lawyer for Gerald Phillips, Westray's former vice-president and general manager, said it's only a matter of time before his client gets the word as well. Phillips was replaced as mine manager shortly after the explosion. He was transferred to Curragh's Toronto headquarters last fall to work on the company's investigation of the disaster. For Parry, who has found part-time work at a sawmill since moving to Alberta, word that charges will be laid was "devastating", his lawyer said. In a surprise move Thursday, Curragh revealed the RCMP intend to charge the company this week with manslaughter and criminal negligence in the May, 1992, explosion. Toronto Star, Sunday April 18, 1993 Westray

In the end, no one was convicted of anything, regulatory or criminal, in the Westray case.

This led to a judicial inquiry (Mr. Justice Richards). Also led to the Steelworkers’ campaign to amend the Criminal Code to make prosecutions easier. Overall

Bill C-45 is an encouragement to prosecutors to consider more readily a criminal prosecution for workplace safety because it has been made easier to get a conviction.

Bill C-45 makes criminal prosecutions likelier in the future. Another Distinction

1. Individual liability – not much has changed. 2. Corporate (organizational) liability – Bill C-45 is a legal revolution !! … doing things never done before in English jurisdictions. … Continued

1. Individuals’ responses to Bill C-45 – do what you should have been doing for the last 100 years … if you know of high risk, take action!! 2. Corporate response to Bill C-45 – do an IRS audit (and act) and do an OHS management system audit (and act). The Main Effect

It is now easier to convict an organization (including a corporation) of a criminal offence under the Criminal Code of Canada. Because

… because it is no longer necessary for prosecutors to find a single controlling mind in the corporation …

… many individuals can contribute collectively to the wrong doing for which the organization as a whole will then be liable for. THIS IS NEW!! Note the Scope

The offence of interest to us is criminal negligence regarding workplace safety, but many types of criminal offences for organizations covered by the amendments. The Secondary Effect

It is (slightly more) easier to convict an individual of criminal negligence involving workplace safety …

… because the Code now declares the existence of a legal duty to take reasonable care in the workplace; whether this duty existed was historically the first hurdle in a criminal prosecution. Caveat

Where a province already had clear duties on supervisors or managers to take reasonable care, Bill C-45 has done little to make prosecution easier (although the excitement has made it likelier). The (Unintended??) Side Effect It may now be easier to convict individuals and organizations of criminal negligence for: • Occupier’s liability • Environmental harms • Product liability … because the new duty includes harm to “the public” (not workers) arising from the work. Some Basic Legal Concepts Lawsuit versus Prosecution

A lawsuit – Jones sues Smith for compensation on the basis that Smith has breached a common law duty. A prosecution – The Crown brings a charge against the defendant alleging that a statutory duty has been breached, an offence has been committed. Crown seeks a penalty to be imposed on the guilty party. Prosecutions

Three types of offences. 1. True crime – offence involves mens rea 2. Regulatory offence – strict liability 3. Regulatory offence – absolute liability Regulatory versus Criminal

Hence, breach of a regulatory statute, whether federal or provincial, can result in a regulatory prosecution under that statute… Or, The breach of a regulatory duty can feed into criminal negligence. True Crime

• Federal law, almost all in Criminal Code • Serious harm, serious penalty • Prohibitory not regulatory (how to) • Offence has a physical element (actus reus) • Offence has a mental element (mens rea) • Crown must show proof beyond a reasonable doubt Mens Rea

“a guilty mind”, “a wicked mind” • Usually “intention” or “recklessness” • Can be “knowing” • Usually concerned with what a person actually, subjectively intended • Mens rea and actus reus have to come from same individual – Bill C-45 changes this (for corporate liability)! Vicarious Liability

Means that one entity is liable for the acts and omissions of another entity. Typically, an employer has been liable for the acts and omissions of its employees regarding regulatory offences. Typically, an employer has been liable for acts and omissions of employers at common law. Problem

How do we (as a society) make a corporation (or other types of organizations) vicariously liable for criminal acts and omissions?

…Keeping in mind that a corporation as a “person” is a legal fiction, and doesn’t really have a “mind” capable of “intending” or “knowing”. Answer

When it comes to corporate liability, Bill C- 45 creates a new way of finding mens rea for a corporation … the “aggregated mens rea” fiction. Section 219 CCC

Pre and post Bill C-45, Section 219 has remained unchanged Existing Law Criminal Negligence Section 219(1) of the Criminal Code:

Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Two Branches of 219

Action: You do something that shows wanton and reckless disregard.

Omission: You fail to do something you had a DUTY to do and show wanton and reckless disregard. Action

You drop bricks off an overpass of a highway, just for fun. Cars crash and people are hurt. You didn’t intend to kill or hurt anyone, but you were wanton and reckless in your disregard for the consequences of your actions. You KNEW what you were doing was high risk and you “mentally shrugged”. Omission

You leave your little kids alone locked in your apartment as you go to Las Vegas for a week of hedonistic indulgence. The kids get hurt. You breached your common law duty as a parent to take care of your kids. You KNEW that your failure was high risk, but you “mentally shrugged”. Action Gradient

1. My hammers slips from my tired hand as I do shingling and it slides off roof and hits neighbour on head. 2. I randomly throw hammers over the hedges and fences and one hammer hits neighbour on head 3. I jump over hedge and hit neighbour on head, saying “die you b_st_d , die”. Action Gradient

1. My hammers slips from my tired hand as I do shingling and it slides off roof and hits neighbour on head. Negligence 2. I randomly throw hammers over the hedges and fences and one hammer hits neighbour on head. Criminal negligence 3. I jump over hedge and hit neighbour on head, saying “die you b_st_d , die”. Murder Omission Gradient

1. I drive a little too fast (over limit) and fiddle with radio, and hit pedestrian. 2. I drive through shopping mall at high speed and hit slow pedestrian. 3. I aim car at pedestrian on sidewalk and run over a few times. Omission Gradient

1. I drive a little too fast (over limit) and fiddle with radio, and hit pedestrian. Negligence 2. I drive through shopping mall at high speed and hit slow pedestrian. Criminal negligence 3. I aim car at pedestrian on sidewalk and run over a few times. Murder “Duty” in s. 219

Section 219(2) “Duty” – For the purposes of this section, “duty” means a duty imposed by law.

1. common law 2. regulatory Duty Plus Knowledge of Risk

The duty alone is not criminal negligence. First show that there is a legal duty, then show that in either doing the duty or in failing to do the duty, the person with the duty has shown wanton or reckless disregard for the lives or safety of others.

The duty may be common law or statute. “Wanton and reckless”

“A marked departure from the standard of the reasonable person” Mens rea for Criminal Negligence • Mens rea is not intent or malice • Mens rea is knowledge of high risk • Measure is not purely subjective as for intent Mens rea for Criminal Negligence • There is an objective assessment of the defendant’s conduct in the circumstances to determine if the defendant had an awareness of risk to others or was “wilfully blind” to the risk

• No need to show subjective foresight of the consequences of conduct Consequences

Criminal negligence is linked to:

Causing death or Causing bodily harm Section 220. Causing death by criminal negligence Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (a) Where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) In any other case, to imprisonment for life. Causal Connection to Outcome

The Crown must first prove criminal negligence on the part of the defendant and then a causal connection between the criminal negligence and the victim’s death. Section 221. Causing bodily harm by criminal negligence

Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Bodily Harm

Section 2. “Bodily harm”

Means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. What are the duties that can be plugged into Section 219? Can be common law duties or statutory duties (either federal or provincial). • Duty to take care at common law • Duties not to cause environmental harms at common law • Duty to take care re entrants on to property • OHS and environmental statutes What are the duties that can be plugged into Section 219? CLC 124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. What are the duties that can be plugged into Section 219? Ontario OHSA 25 (2) Without limiting the strict duty imposed by subsection (1), an employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker; What are the duties that can be plugged into Section 219? CLC 126. (1) While at work, every employee shall

(c) take all reasonable and necessary precautions to ensure the health and safety of the employee, the other employees and any person likely to be affected by the employee's acts or omissions; What are the duties that can be plugged into Section 219? Ontario OHSA 28(2) No worker shall,

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; What are the duties that can be plugged into Section 219? Ontario OHSA 27.--(1) A supervisor shall ensure that a worker,

(c) takes every precaution reasonable in the circumstances for the protection of a worker. What are the duties that can be plugged into Section 219? Ontario OHSA 32. Every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with,

(a) this Act and the regulations;

(b) orders and requirements of inspectors and Directors; and

(c) orders of the Minister. Example of a corporation charged with criminal negligence Pre Bill C-45 Regina v. Syncrude (1984) Confined Space Fatality

The Attorney-General of Alberta laid two charges of criminal negligence causing death against Syncrude following an incident at its Fort McMurray operation in January 1981. A new employee of a Syncrude subcontractor dropped a tool into a tank filled with nitrogen. Apparently not appreciating the danger, he went in to retrieve the tool and passed out. A fellow worker went in to rescue him and was also overcome. Both died.

Evidence given against Syncrude revealed that a notice warning of the tank's contents had not been posted on the tank itself, but in a nearby van. Furthermore, the two men had not been specifically told that they were not to enter confined spaces without taking certain precautions.

The trial judge acquitted the employer. The "controlling minds" of the company were far from "wanton or reckless" in their concern for employee safety.

From Nash (1985) Example of an individual charged with criminal negligence for workplace deaths Pre Bill C-45 Regina v. Kuhle Ontario Provincial Court, Michel, Prov. Ct. J., February 8, 1988

The accused was charged with four counts of criminal negligence causing death following an ore spill that fatally injured four employees conducting an inspection in a mine shaft.

The accused was a skip tender in the shaft above the employees who were conducting the inspection. Upon beginning work the accused found no sign of any dangerous wet ore in his area. He then opened a gate above him in the shaft in order to lubricate the pressure system that kept the gate closed. The accused did not consider that the opened gate would pose any risk. He though that any ore behind the gate would have to be blasted free. Unknown to the accused the ore behind the gate was wet. When the gate opened the wet ore slid down the shaft and onto the men below. Regina v. Kuhle

At trial the evidence established that two principal rules governing mine shaft work were: 1) beware of wet ore; and 2) never work above anybody else. Numerous witnesses testified that they would not have done any work where the accused did, at the level above the ongoing inspection. The evidence suggested that wet ore occurred only occasionally and that large scale spills were rare. Regina v. Kuhle

HELD, the accused is not guilty.

Prior to opening the gate the accused inspected his area and ascertained that everything was in order. The ordinary reasonable man would not have suspected that wet ore was behind the gate. The inspection crew had not noticed excessive water at this level either. A spill would not have been expected at this time as they rarely occur at the beginning of a shift. The accused's actions were not inherently dangerous even though he was not supposed to work above others. The unknown factor which created the major spill was the great amount of water sitting on top of the ore behind the gate. Although the accused's actions were much less than that expected of the prudent man, they did not evidence a wanton and reckless disregard for the safety of others. Problem Pre Bill C-45

If there isn’t a duty for workplace safety in a statute, then it is difficult to get to first base in a section 219 prosecution

The purpose of the Bill C45 general duty in section 217.1 is to provide a uniform and broad duty across Canada. Problem Pre Bill C-45

In organizations, it is hard to find a “controlling mind” that will secure a conviction of a corporation.

Often the acts, omissions and awareness of risk are not associated with the same person in the organization. Liability of Individuals for Criminal Negligence The “New” Duty

217.1 Every one 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 or task. Existing

217. Duty of persons undertaking acts -- Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. Effect on Individuals

• “Declares” a cross Canada duty to take care in the workplace for individuals directing work. • Unlikely the federal government has the constitutional power to create a duty that is within the C/L jurisdiction of provinces. • This is new only for provinces where there was not already a provincial duty (altho’ not new insofar as a C/L duty exists) • This duty is a necessary pre-condition for personal criminal negligence (you must have a pre-existing legal duty at common law or in a regulatory statute that you know you are breaching for there to be criminal negligence) • Hence, makes it easier for a criminal negligence conviction for individuals in the workplace in some provinces (no change in Ontario). Effect on Directors and Officers Harm to Workers No change in Ontario for Directors and Officers personally as there has been a duty to personally take reasonable care under the OHSA since 1990 … section 32 Effect on Directors and Officers Harm to Non-Workers The new general to duty applies to harm to any person from risks arising from the work. Visitors, customers, suppliers, patients, guests, tourists … Captures some areas of liability that would pre-exist in occupier’s liability, product liability, environmental liability, general law of negligence. Antidote to Criminal Negligence

Proper due diligence training of employees in the context of the Internal Responsibility System will ensure that individuals have the motivation and the ability to recognize when the “knowledge” situation has changed and they must act or potentially be criminally liable. Amendments to Definitions in the Criminal Code “Every one”, “person”, “owner”

Section 2:

“Every one”, “person”, and “owner”, and similar expressions, include Her Majesty and an organization. Implication

Crown entities such as government ministries and crown agencies will be potentially criminally liable. Not new

The definition of “organization” is very broad, some types of organizations have not been held to be legal “persons” before. “Organization”

“Organization” means: 1. A public body 2. Body corporate (a corporation) 3. Society 4. Company 5. Firm 6. Partnership 7. Trade union 8. Municipality, or “Organization”

“Organization” means: 9. An association of persons that (i) is created for a common purposes, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons. Implication

Many kinds of organizations will be subject to potential criminal liability. In the past, unincorporated “societies” and “associations” have not usually been considered legal “persons”. No change here for corporations, whether for-profit or not-for-profit, as long been possible to be criminally liable. (Bill C-45 simply makes it easier.) “Representative”

In respect of an organization, means: 1. A director (on the board of directors) 2. Partner 3. Employee 4. Member 5. Agent, or 6. Contractor Of the organization Implication

The criminal liability of an organization will be triggered in part by actions or omissions of “representatives”, so the broad nature of this class of persons has great significance.

“Employee” takes us from worker to President. The implications of “contractor” are going to be subtle, intricate and important. “Senior Officer”

Means a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes 1. a director 2. The chief executive officer 3. The chief financial officer Implication

Note: “Policy” versus “managing activities”.

How “important” will those activities have to be? Two dichotomies: General versus functional managers and staff versus operational managers. All four types as long as “important”? Implication

The criminal liability of an organization will be triggered in part by the knowledge, acts and omissions of “senior officers”, so the broad nature of this class is significant. Implication

This will involve more layers of the organization than the traditional focus on “directors and officers”.

This will likely capture plant or mine managers, division or department heads, whether line or staff.

Generally, mid level managers likely to be caught by this. Section 22.1

Liability of the Organization for Offences of Negligence Note

This is not about liability for individuals, but for organizations.

It’s about certain types of criminal offences in the Criminal Code, ones that are based on the concept of negligence.

Criminal negligence is the most important negligence based offence, but it is not the only one in the Code. Liability of the Organization for Offences of Negligence

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (i) one of its representatives is a party to the offence, or (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. Breakdown … 1 Rep

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (i) one of its representatives is a party to the offence, and (b) the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. “Parties to Offence” s.21(1) Parties to offence – Every one is a party to an offence who

(a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Breakdown … 1 Rep

So… if one employee can be said to be criminally negligent … Plus… a failure on the part of the senior officer(s) to prevent that employee’s wrong doing, … that could amount to criminal negligence for the corporation. Example

A supervisor orders a worker to work in an elevated area without fall arrest equipment, knowing the high risk to the employee …. Plus … The Vice President of Human Resources did not arrange for proper due diligence training for supervisors … Breakdown … 2 Reps

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. Breakdown … 2 Reps

So… if there are more than one employees who collectively would be criminally negligent …. If aggregate as one person… Plus a failure on the part of the senior officer(s) to prevent those employees’ wrong doing, … that could amount to criminal negligence for the corporation. Example

A supervisor orders material to be lifted knowing the lift device has not been maintained, plus worker operates lift over heads of co-workers…. Plus, general manager failed to require audit of preventative maintenance program and failed to ensure competent operators of lift devices …. Summary of Problem

• have to account for everyone’s knowledge of high risk • and everyone’s ownership of safety • and everyone’s motivation to report upwards when action cannot be taken directly because of this aggregation of mens rea in a hypothetical person. Where We are Going…

Use IRS audit to find weaknesses and address them so there they aren’t any clusters of individuals who can be grouped together artificially in this “hypothetical person” and … system audits to correct managerial failures that are combined with aggregated mens rea. Section 22.2 Liability of the Organization for Offences Other Than Negligence Liability of the Organization for Offences Other Than Negligence

22.2 In respect of an offence that requires the prosecution to prove fault - other than negligence - an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers (a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or (c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence. Sentencing Factors (Not covered today) Probation Orders (Not covered today) Response to Bill C-45 Antidote

The Internal Responsibility System should be functioning properly. Individuals should be able to solve due diligence problems while alert to the changing “knowledge” situation. Under the IRS, the relevant individuals should ensure a proper OHS management system is developed, implemented and maintained. The Internal Responsibility System Two Ideas -- Traditional

“Everyone is responsible for integrating health and safety into his or her job, and should take every precaution reasonable in the circumstances to avoid losses.” Two Ideas -- Positive

“Everyone should personally take every measure reasonable to continuously improve processes such that, among other benefits, the risk of occupational injuries and illnesses is driven down as low as it can reasonably go.” The Internal Responsibility System • The philosophy behind the OHSA • The IRS is a way of allocating responsibility, authority and accountability for safety that precedes law • First named in the 1976 Ham Royal Commission Report • Not mentioned directly in OHS legislation, except NS James Ham

James Ham got it right in 1976:

1. OHS should be integrated into production; it’s not a separate function. 2. Everyone should be doing OHS directly as part of his or her job. Power of the IRS

It is the only philosophy that captures the knowledge, experience, skill, insight, observational position, initiative, creativity and enthusiasm of every human mind in the workplace.

It is the ultimate expression of respect for the human element in the workplace. Power of the IRS

• The IRS is the “people framework” around which the management system is built. • An OHS management system without the IRS is lifeless. • Programs and techniques are built on top of and around the IRS. • A weak IRS will sabotage any other OHS initiative. Definition

“The IRS is a system, within an organization, where everyone has direct responsibility for health and safety as an essential part of his or her job. An individual does health and safety in a way that is compatible with the kind of work that person does. Each person takes initiative on health and safety issues and works to solve problems and make improvements on an on-going basis. A person does this both as an individual and in cooperation with others.”

Nova Scotia s. 2 The foundation of this Act is the Internal Responsibility System which (a) is based on the principle that (i) employers, contractors, constructors, employees and self- employed persons at a workplace, and NS Definition Continued …

(ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility for the health and safety of persons at the workplace; NS Definition Continued …

(b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each of these parties, to the extent of each party's authority and ability to do so; NS Definition Continued …

(c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities pursuant to this Act and the regulations; and NS Definition Continued …

(d) is supplemented by the role of the Occupational health and Safety Division of the Department of Labour, which is not to assume responsibility for creating and maintaining safe and healthy workplaces, but to establish and clarify the responsibilities of the parties under the law, and to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out. IRS

Internal – many meanings

Responsibility – it’s about obligations not rights

System – it’s a true system, requiring “systems thinking” “Internal”

Health and safety is: ¾internal to the workplace ¾internal to the individual ¾internal to the job description of everyone ¾internal to routine decision-making ¾driven by “internal motivation” Internal to the Workplace

• OHS is the responsibility of the workplace parties (as individuals) • OHS is “self-regulated”, “self-monitored” to a very large extent • External Responsibility System not directly responsible for OHS External Responsibility System • Ministries/Depts of Labour • Safety Councils • Safe Workplace Associations • Compensation Boards

Set standards, enforce, educate, etc. but don’t do it for you Wrong IRS Description

“The IRS is a partnership between labour, industry and government to ensure a safe and healthy workplace.”

Refers to a tripartite policy-making process (e.g. the development of WHMIS), but not the IRS. Wrong IRS Description

“IRS is a set of three rights: 1. To know about hazards 2. To refuse unsafe work 3. To participate (through committee)”

Missing the main element – personal duties of everyone

Wrong IRS Description

“A group of people working together to improve health and safety in the workplace”

Vague. Unhelpful … unless you want to slip the Titanic through the gap. Wrong IRS Description

“Labour and management co-manage OHS through the Committee. The Committee IS the IRS.”

The “labour relations” version of the IRS. Missing personal contribution of individuals.

Wrong IRS Description

“The company/employer is responsible for OHS, not the government.”

Fails to raise the “corporate veil” and identify all individuals as personally responsible. Wrong IRS Description

“The IRS is a good OHS management system.”

The IRS is part of the management system – not a competing idea, nor is it synonymous with it. Internal to the Job Description of Everyone • Everyone, no exception • Staff and line • Workers, supervisors, managers, officers and directors • Personal, individual responsibility • Do the kind of OHS work that fits with authority and control

Origin of IRS

IRS isn’t true by definition or created out of thin air by policy.

IRS is based on physical causation of accidents in the workplace by people – all people – in the organization.

IRS is “true” because of basis in accident theory. Workers

• Following regulatory procedures • Following employer's procedures • Following supervisor's procedures • Identifying defects, contraventions and dangers • Using initiative to reduce risk • Applying discretion to solve OHS problems • Reporting unresolved problems • Working cooperatively with co-workers, supervisors and others Supervisors

• Using initiative to reduce risk • Applying discretion to solve OHS problems • Responding properly to reports • Encouraging reports • Training • Ensuring qualifications Supervisors

• Safety talks • Job planning • Tailboard conferences, pre-job briefings • Coaching • Job observation Supervisors

• Post-job assessments • Enforcement of rules and regulations • Discipline • Working cooperatively with workers, other supervisors, managers and others • Taking unresolved problems to senior management Managers

• Using initiative to reduce risk • Engaging in leadership activities for OHS • Applying discretion to solve OHS problems • Responding properly to reports • Encouraging reports by supervisors Managers

• OHS performance evaluation • Holding others accountable • Developing, implementing programs • Post-project/program assessment • Properly allocating resources • Staffing decisions Managers

• Considering system wide problems • Taking unresolved problems to senior management • Working cooperatively with workers, supervisors, other managers and others Executives

• OHS Policy • Ensuring the development of an OHS system • Ensuring periodic "system audits" • Responding properly to reports by managers • Ensuring that a proper IRS is functioning • Ensuring that competent professionals are hired Executives

• Sufficient resource allocation • Leadership — taking initiative; inspiring others • Holding subordinates accountable • Considering system wide problems • Taking appropriate, unresolved problems to the directors Directors

• Setting the broad vision for OHS performance • Ensuring that the officers are capable and motivated to establish and maintain the IRS and the OHS management system • Requiring evidence that in fact the IRS and OHS system are functioning well • Responding properly to reports by officers • Holding the officers accountable for their OHS performance Internal to Routine Decision- Making • OHS not an add-on, an afterthought • OHS not a separate function • As you do your ordinary work you think about risk, hazards, controls and adjust your work accordingly • Easy to see with workers and supervisors • Hard to see with mid to senior managers and with staff positions The IRS is a Dynamic Problem Solving “Machine” • Attempted resolution of problems within each level • Attempted improvements within each level • The upward flow of unresolved problems and opportunities for improvement • Cooperative interaction between levels for problem-solving and improvements • The number of problems flowing up decreases with each level Problem Solving “Machine”

• The number of initiatives that could be taken at each level without waiting for an issue to come up from below does not necessarily decrease with each level • The nature of the problems and the opportunities will be different at each level • Implication that people at lower levels need to be kept informed of what is happening to a problem or initiative that was sent up the system, or frustration will set in • Implication that weakness in the IRS can occur at any or all levels

Response Driven by Reactive Due Diligence When a person receives a “hot potato” from below, his due diligence position shifts. Now he KNOWS about hazard X or non- compliance Y. Proactive due diligence is erased. Now what matters is response to the standard of the reasonable peer. Understanding of DD drives the IRS.

Initiative versus Response

• IRS at levels above the hands on worker is not just about responding to issues from below.

• Individuals at all levels are in the best position to see how their own processes can be improved. IRS Activities

• Individual problem solving — identification of defects, anomalies, contraventions, hazards and risks and their resolution • Individual creative and continual improvement of work processes • Reporting up when in need • Cooperative problem solving • Further reporting up if necessary IRS and Risk

We do not want risk assessment to be done solely in a staff function; done globally for the organization.

We want risk assessment to be done daily by individuals as they are routinely making decisions. Risk

Personal assessment of risk allows an individual to figure out: ¾ what techniques to use ¾ when to use them ¾ how often to use them ¾ with what emphasis ¾ what to forego, as resources are limited Enemy of Zero

A quantitative view of risk. A view that suggests that risk can reach an identifiable “acceptable level”, after which our efforts are counterproductive.

View risk as “organic”. We are in a never-ending battle to keep pushing down on risk. Getting risk as “low as reasonably practicable” has no pre- set resting point. Contrast with Professional Risk Analysis Not saying there shouldn’t be expert risk analysis done. Limit to professional risk analysis: the “knowledge problem” … world is too complex and ever-changing for an individual to know enough. IRS approach to risk analysis takes advantage of many minds and “local knowledge of risk” Failures in the IRS

• At what level can it fail? • Workers disengaged, unmotivated, cynical, untrained in OHS, frustrated • Supervisors discourage reports, discount risk, production first, pass on problems without attempting solution Failures in the IRS

• Managers don’t want to hear about problems, bounce issues back to supervisors, take long time to analyze without status reports to workers • Executives ignorant of systems approach, OHS solely for the little people, poor leadership skills, delegate OHS entirely to the experts, don’t prioritize OHS Failures in the IRS

• Directors don’t hire interested executives, don’t ask questions except in a pro forma superficial way, don’t ask for system audits • OHS professionals behave like “Mr. Safety” • JHSC committees try to do work of everyone in IRS • Worker reps encourage workers to come to them, not to their supervisors Major Failures in the IRS

Corruption by Labour Relations Views - Not about individuals, but groups - No common interest - Adversarial atmosphere - “Us versus Them” - Poor trust and communication - Supervisors circumvented - Over-reliance on worker reps and JHSC Major Failures in the IRS

Corruption by Labour Relations Views - Over-emphasis on rights - JHSC seeks direct power - Management accustomed to saying “no” - Complaints based, not suggestions for improvement - Resistance to “quality thinking” - Over-reliance on threat of MOL inspectors - Worker reps in competition with OHS professional Major Failures in the IRS

Result

- Abdication of responsibility by individuals in the IRS - Over-burdened JHSC grinds to a halt - Risk increases IRS and LR

Direct correlation between poor IRS and poor labour relations. Poor labour relations causes poor OHS performance. Yet, improving the IRS can improve labour relations. Internal Self-Correction

Main self-correction: ¾Each person holds the person below them accountable for their performance in the IRS. ¾Each person evaluates the people above for their performance in the IRS. ¾Senior people monitor the entire IRS for results of such evaluation. Internal Self-Correction

Ultimately senior management personally responsible for the health of the IRS as part of their mandate to get the “corporate culture” right.

OHS professionals also monitor the IRS performance at all levels and advise corrective measures. “IRS Analysis”

Analyze every OHS issue in terms of the underlying IRS, e.g.: ¾ Inspections ¾ Investigations ¾ Complaints ¾ Orders ¾ Recommendations ¾ Work Refusals ¾ JHSC Activities “IRS Analysis”

1. What went wrong with the IRS?...fix it.

2. What could go wrong with the IRS?...avoid it

3. How can we strengthen the IRS? OHS Driven by “Internal Motivation” • Difference between motivation from within the person and motivation from without • External “rewards and sanctions” • Internal “satisfiers” .... pride, sense of achievement, self-development, control, curiosity, self-respect, morality, etc. • Which works best for “out of sight short cuts”? • Which works best for obtaining creativity and initiative for OHS? The Internal Responsibility System is: • A set of responsibilities for every individual in the organization • A hierarchy of responsibility, authority and accountability • A set of values and principles • A system of processes and activities • A pattern of individual creativity • A true “system”. It has built devices for monitoring, feedback and control IRS Audits IRS Audits

We “audit” the workplace and we do “system audits” of the OHS management system.

Can we directly audit the IRS?

Yes, survey and interview individuals at all levels. IRS Audits

Surveys, interviews and observations to measure the health of the IRS at each level of the organization; identifying strengths and weaknesses with a view to correction IRS Audits – Type of Questions

Ask questions about:

¾ understanding ¾ ownership of safety ¾ beliefs ¾ cooperation ¾ encouragement IRS Audits – Type of Questions

Ask questions about:

¾communication ¾ involvement ¾ response time ¾ recognition for initiative ¾leadership Contrast with System Audit

An audit of an OHS management system will focus on the presence or absence of processes (PDCA) and programs (containing procedures).

An IRS audit should be an element of a properly done system audit. An IRS audit looks at the human element in the management system. IRS Audits

Ask questions about: ¾ individual’s perception of how others are performing in the IRS ¾ whether “IRS analysis” is applied to problems ¾ whether internal failsafe devices are working ¾ about behaviour in addition to beliefs A Calibrated Audit

Perform audits of ½ dozen similar companies (e.g. all mining companies) with known lost time etc statistics.

If the audit questions are sound, the high scorers on the audit should have few accidents and the low scorers should have many accidents.

Eliminate questions that don’t contribute to the correlation. Purpose of IRS Audits

We normally use IRS audits to help companies go from “pretty good” to world class. Thus, the primary focus is on creativity and continuous improvement.

IRS audits will also tell us about likelihood of individuals who know of risk and who “mentally shrug” -- do nothing. IRS and C-45

Many clusters of questions have to do with: • acceptance of personal responsibility for OHS • being encouraged to report hazards • encouraging hazards • responding to hazard reports • laterally moving hazard reports across the organization IRS and C-45

Many questions are aimed at determining if the indirect players (Committee and Safety Depart) are doing the work of the direct players – in which case the chances of individuals with knowledge of high risk doing nothing increases. Big Picture

We ask everyone to answer yes or no to a series of statements that have right/wrong answers … aiming at understanding of the IRS. Only the high scorers (who understand what the IRS means) are then counted in the responses to the next question “is the IRS working at your workplace”. This gives an excellent snapshot of IRS performance… actually correlates with lost time stats Big Picture a) everyone looks after H & S as part of doing their job b) I am the only one to look after the safety of me and my co-workers f) the Company President has some responsibility for my health and safety h) if the worker cannot fix the problem, the supervisor will help find the answer l) the Health and Safety Committee help resolve issues when other ways fail Surveying the Individuals at all Levels in the IRS Have separate survey questions for workers, supervisors, managers, officers, directors, committee members, safety department, contractors, etc. Answers are on a gradient:

Strongly Somewhat Somewhat Strongly Disagree Disagree Agree Agree Pairing of Questions

Usually the same question is asked of different groups. Discrepancy alone is an issue. Aim to avoid bias of self-reporting.

Almost all supervisors agree that they involve their workers in job planning. But worker response to that question varies. Who do you believe? Pairing of Questions

All CEO’s agree that they engage in leadership activities to encourage workers to identify hazards and report them.

Worker response to questions like “do you see the President discussing safety with workers?” is quite variable. Who do you believe? Sample Questions

Workers: I believe that I can go to my supervisor with any health and safety concern or problem without fear of a bad reaction from him or her FLS: I believe that my people will come to me with any health and safety concern or problem without fear of a bad reaction from me Sample Questions

Workers: My supervisor responds promptly and appropriately to every complaint by me about health and safety Line Mgt.: I make sure that the supervisors have the information needed for the crews to do the jobs safely, and that they pass it on to the crews Sample Questions

FLS: My supervisor responds promptly and appropriately to complaints passed on, or raised, by me regarding health and safety Sample Questions

ALL: Management has effective ways of sharing new ideas about improving the work between different areas and work crews Sample Questions

JHSC: I believe that, as a member of the Health and Safety Committee, I am personally responsible for directly ensuring that hazards are identified and dealt with at the mine—I “do safety” on behalf of the Company Sample Questions

JHSC: At this workplace, the Health and Safety Committee is actually relied upon as the main vehicle for reducing and eliminating health and safety risks The Safety Department’s job is not to assist us, but is to find hazards and make the workplace safe for us Sample Questions

Workers • If I became aware of a very serious risk to human life or health, I would have no hesitation in reporting it to my employer right away. • I believe that some supervisors of my company discourage workers from reporting hazards, including very serious risks. • I know of a very serious risk to human life or health in my workplace that is not being adequately addressed by my company. Sample Questions

JHSC re Contractors • The contractors' employees who are in my workplace are less likely than our own employees to report a very serious risk to their employer. • The contractors' employees who are in my workplace are less likely than our own employees to report a very serious risk to my employer directly. Interviews

Not satisfied with quantitative statistical analysis. Also interview people at all levels. Look for examples of knowledge of high risk and inaction. A form of “incident recall” technique. A form of hazard/risk identification and evaluation. Measuring Mens Rea and Action

Measuring mens rea might be thought of as measuring people’s knowledge of high risk situations. Criminal negligence is knowledge plus not doing anything. So, we measure action as well… action as reported by others. Analysis of Responses

Where the concern is C-45 liability, the analysis focuses on the likelihood that individuals or groups of individuals are aware of high risk hazards but are not taking action to reduce the risk or to report the hazard to someone who can take action. Looking for …

1. people don’t “own” safety. 2. people not motivated to report hazards even though they know about them. 3. people know others know and claim the others aren’t doing anything with that knowledge of risk. 4. there are hazards without programs specifically tailored to them Action Based on Audit

1. Fix IRS 2. Fix OHS management system Action Based on Audit

One on one discussions with supervisors or managers Training on risk and due diligence Removal of barriers to communication (some are organizational, some are psychological) Creation of new communication pathways, e.g. with contractors Implementation of new techniques and processes, e.g. risk based incident recall meetings e.g. group based problem solving of high risk issues Systems Audits

For corporate liability, there must be managerial failure in addition to mens rea for criminal negligence on the part of individuals. System audits can measure the managerial failure part of the equation. Helps to clearly identify which programs in the management system are aimed at high risk hazards as opposed to regulatory compliance. Summary Summary

Bill C-45 has brought to the forefront: 1. “Safety culture” of an organization 2. The Internal Responsibility System 3. Presence of an OHS management system 4. Personal understanding of subtleties of due diligence Summary

All of these can be measured, and all of these can be improved. The potential legal liability of the organization and of individuals can be dramatically reduced … as side benefits of reducing the risks of occupational injury and illness. Dr. Peter Strahlendorf

IQSEM Ltd. PO Box 565, Stn Q Toronto Ontario, M4T 2N4 416-955-9195 Fax 416-955-0568 [email protected] To Obtain Presentation

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