The Text of Section 25(2)(h)
Section 25(2)(h) of the OHSA reads:
"An employer shall take every precaution reasonable in the circumstances for the protection of a worker."
The clause is intentionally broad. It applies to every workplace situation, every kind of hazard, and every category of worker. Where a specific regulation does not address a particular situation, Section 25(2)(h) does. Where a regulation does address it, Section 25(2)(h) often requires more than the regulation's bare minimum.
How Section 25(2)(h) Operates
The clause is a strict liability offence under Ontario law. The Crown must prove that the employer failed to take every reasonable precaution. The employer can defend by establishing that they exercised due diligence: that they took all reasonable precautions in the circumstances.
In practice, charges under Section 25(2)(h) often follow workplace incidents where:
- A specific regulation was followed but the broader hazard was not adequately addressed
- A hazard existed that was not covered by a specific regulation
- The specific regulation was followed in form but not in substance
- The employer's program was inadequate even if individual procedures were technically compliant
The Due Diligence Defence
To establish a due diligence defence, an employer must show that they took all reasonable precautions in the circumstances to prevent the harm. Ontario courts evaluate this against nine specific measures of due diligence.
These nine measures form the framework that judges, prosecutors, MLITSD inspectors, and reasonable employers use to assess whether due diligence was met.
The Nine Measures of Due Diligence
The nine measures Ontario courts apply to evaluate due diligence are:
- Foreseeability: Was the hazard or harm reasonably foreseeable?
- Likelihood and magnitude: How likely was the harm to occur, and how serious would it be?
- Available alternatives: What other reasonable courses of action were available?
- Industry practice: What is the standard practice in the industry for managing this hazard?
- Cost and feasibility: What was the cost and feasibility of preventive measures?
- Skill expected of person: What level of skill was expected of the person handling the situation?
- Complexities of operation: How complex were the operations involved?
- Preventive systems in place: What preventive systems were in place at the time?
- Efforts to address the hazard: What efforts did the employer make to address the hazard once it became known?
An employer who can demonstrate they considered each of these measures and acted reasonably with respect to each has a strong due diligence defence. An employer who cannot demonstrate consideration of these measures has weak ground to stand on.
Section 25(2)(h) and Confined Space Programs
Confined space work is one of the highest-risk activities in Ontario workplaces. Section 25(2)(h) interacts with O. Reg. 632/05 in several important ways:
- Compliance with O. Reg. 632/05 does not automatically satisfy Section 25(2)(h). The general duty clause requires every reasonable precaution, which may exceed the specific requirements of the regulation.
- Where the regulation is silent on a specific hazard, Section 25(2)(h) still applies. For example, the regulation does not specify a fixed assessment review interval; an employer who reviewed once and never again could face Section 25(2)(h) charges if a hazard developed that an updated assessment would have caught. See how often a confined space assessment needs to be updated.
- Programs built to standards beyond the regulation, such as CSA Z1006:23, demonstrate stronger due diligence.
Common Section 25(2)(h) issues in confined space cases include inadequate hazard assessment, training that did not match the actual conditions, rescue plans that were not viable, and entry permits issued without verifying conditions.
How to Demonstrate Due Diligence
Due diligence is established by documentation, training, and consistent practice. An employer demonstrating due diligence in confined space work would have:
- A written confined space program built to current regulatory and industry standards
- Hazard assessments performed by competent persons and documented
- Training records for all workers and supervisors involved in confined space work
- Entry permits documenting that all preconditions were verified before each entry
- Periodic program reviews documented with dates, findings, and corrective actions
- Records of incident investigations and lessons learned applied to future entries
Documentation alone is not sufficient. The documentation must reflect what actually happens in practice. Programs that exist on paper but are not followed are a common source of Section 25(2)(h) charges following incidents.
The Due Diligence Self-Assessment Tool
CCL Health & Safety provides a free Due Diligence Self-Assessment tool that helps Ontario employers evaluate their organization against the nine measures of due diligence. The tool produces a scored assessment with specific gaps identified. For an introductory primer on Ontario's due diligence framework before taking the assessment, see our blog post on what due diligence in health and safety means in Ontario.
How CCL Health & Safety Helps
CCL Health & Safety builds Ontario confined space programs with Section 25(2)(h) and the nine measures of due diligence as the foundation. Our programs are designed to demonstrate due diligence in court, before MLITSD inspectors, and to insurance auditors.
For more on building a comprehensive confined space program, see Confined Space Program Development. For the regulatory frameworks Section 25(2)(h) interacts with, see Ontario Regulation 632/05 Explained and Provincial vs Federal Confined Space Regulations. Section 25(2)(h) applies equally to lockout/tagout programs. For the LOTO regulatory frameworks, see CSA Z460:20 Explained and Ontario Regulation 851 LOTO Requirements.
Read the Source
Read the full text of the Occupational Health and Safety Act: ontario.ca/laws/statute/90o01.