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Transcript of Technology and Due Diligence - Home - Enform and Due Diligence Presented by David G. Myrol Senior...
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Technology and
Due Diligence
Presented by
David G. Myrol
Senior OHS Counsel, McLennan Ross LLP
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McLennan Ross LLP
Technology and Due Diligence
2
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McLennan Ross LLP
Technology and Due Diligence
3
Outline
• Due Diligence Review
• Case Law
• Theories and Solutions
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McLennan Ross LLP
Technology and Due Diligence
Due Diligence Review
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McLennan Ross LLP
Technology and Due Diligence
Test
• Whether all reasonable care was taken in the
circumstances to avoid the accident, or was
the defendant operating under a mistake of
fact….?
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McLennan Ross LLP
Technology and Due Diligence
Practical Realities
• Reverse onus
• Presumption of guilt
• Legal test
• Reasonable person
• High expectations
• Hindsight bias
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McLennan Ross LLP
Technology and Due Diligence
Recent Case Law
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McLennan Ross LLP
Technology and Due Diligence
The First Court
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McLennan Ross LLP
Technology and Due Diligence
Safety Compliance Insider
• November 2012 edition
• Annual Due Diligence
Scorecard
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McLennan Ross LLP
Technology and Due Diligence
Safety Compliance Insider (Cont’d)
• Survey of “Reported”
Trials
• July 2011 - November
2012
• 15 cases
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McLennan Ross LLP
Technology and Due Diligence
Safety Compliance Insider (Cont’d)
• One win for defendants (AB)
• 14 wins for prosecutors (AB, BC, NL, NS, ON,
SK, and YK)
• www.OHSInsider.com
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McLennan Ross LLP
Technology and Due Diligence
Safety Compliance Insider (Cont’d)
• Only acquittal overturned at 1st level
• Appeal to ABCA in June 2013
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McLennan Ross LLP
Technology and Due Diligence
Common Themes
• High expectations
• Human error prevalent
• Focus on training and supervision
• Words are important
• Competency deficits
• Documentary gaps
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McLennan Ross LLP
Technology and Due Diligence
WCAT-2012-00070
• Regulator given anonymous tip
• Construction company struck 7200-volt
underground cable
• Investigation commenced
• Determined no underground utility locate
obtained before work commenced
• Administrative penalty imposed
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McLennan Ross LLP
Technology and Due Diligence
WCAT-2012-00070 (Cont’d)
• Company appeals
• Company says “human error”
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McLennan Ross LLP
Technology and Due Diligence
WCAT-2012-00070 (Cont’d)
• Human error argument was non-responsive
• “Accidents are usually due to human error.”
• The issue is whether the employer took all
reasonable steps to prevent the error
• Only evidence related to an investigation
related to a underground near-miss the year
before
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McLennan Ross LLP
Technology and Due Diligence
WCAT-2012-00070 (Cont’d)
• Vice-Chair upholds administrative penalty
• Impressed by quick compliance
• Rewards company for efforts
• Reduces by 30%
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McLennan Ross LLP
Technology and Due Diligence
Quick Summary
• Accidents usually involve human error
• Company is not vicariously liable for error
• The question is what did the company do to
prevent the error?
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord Paving Ltd.
• 2012 conviction (Nfld. & Lab. Prov. Court)
• 2009 fatality of flag person
• Working on a public highway
• Ditching and grubbing operation
• Flag person crushed by excavator
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• Employer charged with six OHS charges
• P. Eng. determined only needed two flaggers
• They could see each other from 50 meters
• Accident happened on curve
• Obstructed view
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• Traffic manual said three flag people needed
or two-way radios if vision obstructed
• Trial judge concludes vision obstructed by
curvature
• Flaggers needed to be too close
• Should have had three flaggers or two-way
radios
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• Convicted on two charges
• Failing to have third flagger or radios
• Failing to provide information, instruction,
training and supervision to workers
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• Experienced operator
• Was not pivoting cab to look forward
• Operator knew better
• Admitted he should not have moved without
checking to make sure no one in way
• Testified deceased had been too close before
and talked to him – did not report it
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• Employer required basic certificates to
operate
• Manual referenced form for “Employee
Training Record”
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McLennan Ross LLP
Technology and Due Diligence
R. v. Concord (Cont’d)
• No evidence of form tendered
• No evidence of periodic evaluations of
operators
• Other flag person could not define what was
meant by keeping a “safe distance”
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McLennan Ross LLP
Technology and Due Diligence
Quick Summary
• Human error: P.Eng., Operator, Flaggers
• No employee training record
• No periodic evaluations
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
R. v. Della Valle
• Nova Scotia Provincial Court
• Maintenance worker reported concerns about
asbestos to supervisor
• Gave sample to OHS Coordinator
• Laboratory confirmed asbestos and what
safety measures needed to be taken
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McLennan Ross LLP
Technology and Due Diligence
R. v. Della Valle (Cont’d)
• Should inform workers
• OHS Coordinator told two maintenance
supervisors about results and safety
measures
• Supervisors didn’t follow through
• Nor did OHS Coordinator
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McLennan Ross LLP
Technology and Due Diligence
R. v. Della Valle (Cont’d)
• Electrician notifies Regulator
• Housing Authority, Supervisor and OHS
Coordinator charged with OHS offences
• Housing Authority and Supervisor plead guilty
• OHS Coordinator goes to trial
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McLennan Ross LLP
Technology and Due Diligence
R. v. Della Valle (Cont’d)
• Convicted
• Not for what he did, but for what he didn’t do
• Should have:
– Immediately notified his supervisor
– Followed-up with supervisors
– Reported to JOHS
– Instigated formal hazard assessment
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McLennan Ross LLP
Technology and Due Diligence
Quick Summary
• Knowledge
• Trial judge applied test of “reasonable
prudent person in the defendant’s position,
possessed with such knowledge, ought to
have undertaken
• Offence of omission
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
Theories and Solutions
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
Main Question
• Is technology changing the law of due
diligence?
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McLennan Ross LLP
Technology and Due Diligence
Answer
• No
• The test is the same
• The standard of care is changing
• Raising expectations
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McLennan Ross LLP
Technology and Due Diligence
Adoption of Technology
• Everett Rogers
• Diffusion of Innovations, 1962
• Theory explains rate of new ideas and
technology spread through cultures
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
The Chasm
• Geoffrey Moore
• Crossing the Chasm
(1991)
• Marketing of high
tech products
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
Accelerating Change
• Increase in the rate
of technological
progress
• Faster and more
profound change in
the future
• Exponential growth
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McLennan Ross LLP
Technology and Due Diligence
Solutions?
• New is not always better
• Practical realities
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McLennan Ross LLP
Technology and Due Diligence
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McLennan Ross LLP
Technology and Due Diligence
Fitness for Duty
• Optical scanners
• Measures alertness
• Drug & Alcohol
Testing
• Six Safety Systems
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McLennan Ross LLP
Technology and Due Diligence
Accessibility
• Did you know Alberta and BC both require
employers to make legislation readily
available for reference by workers?
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McLennan Ross LLP
Technology and Due Diligence
Accessibility
• June release
• Android, iPad,
iPhone
• Second generation?
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McLennan Ross LLP
Technology and Due Diligence
Competency
• International
Competency
Assessment Board
• Proctored assessments
• Knowledge feedback
• Professional
development
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McLennan Ross LLP
Technology and Due Diligence
Training
• Online training
• Efficient
• Effective
• Consistent
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McLennan Ross LLP
Technology and Due Diligence
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THANK YOU!