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REGULATORY DUE DILIGENCE LAWYERS

Toronto’s Due Diligence Lawyers

Assisting Individuals and Corporations Charged with Regulatory Offences

Many individuals and companies charged with regulatory offences believe that they can demonstrate due diligence by showing an honest and reasonable belief in a certain set of facts. However, more is often required. Due diligence requires proof that all reasonable care was taken to avoid the commission of the offence.

Due diligence operates as a defence to strict liability offences where the prosecution has proved that the unlawful act or omission occurred. If the individual or company can show on a balance of probabilities that it exercised due diligence in trying to avoid the commission of the offence, it will be found not guilty of the regulatory offences. What constitutes reasonable care will depend on the circumstances of the offence and the regulated industry within which it is alleged the breach occurred.

The difficulty with the due diligence defence is that it must be evidenced that all reasonable care was taken before the alleged violations or breaches of the rules and regulations occurred. It is insufficient to point to steps taken after the unlawful act or omission. This requirement highlights the importance of risk assessment, risk management, and standard operations policies and procedures to ensure proactive compliance. Likewise, the due diligence defence must relate to the unlawful act or omission, rather than a broader notion that the individual or company has acted reasonably.

What is all reasonable care?

Determining what constitutes all reasonable care or all reasonable steps that must be taken is a difficult task that our courts must decide in a case-by-case basis. Our courts have recognized a dozen factors that go into the calculation of whether the steps taken were sufficient to prevent the commission of the offence. Each case is unique and requires its own determination. Some factors that our courts have recognized are the foreseeability of the event, industry standards, efforts made to address the problem in the past, the complexity of the industry, the skill level expected of the defendant, preventative systems in place, and economic factors, among others. Superhuman effort is clearly not required, but determining whether more could, or should have been done, is not always easy.

Strategic advice from a lawyer experienced in due diligence cases can provide you and your company with a plan and some security. Knowledge is a significant factor in establishing due diligence. You and your company are likely aware of the potential for an accident to occur. That event could lead to an enforcement action or investigation from a regulatory agency. Being found guilty of any regulatory offence can severely impact your business. It can result in the loss of licences, significant financial penalties, and irreversible damage to your brand. Even being investigated or knowledge that an incident occurred can result in damage to your reputation and a loss of business. With our assistance, you can plan and prepare for worst case scenarios but put systems in place to achieve the best results for you and your company.   

Defence Lawyers who Understand Legal Due Diligence

The complexity of the due diligence defence and evidence required is a good example of how important it is to get strategic legal advice prior to any regulatory investigation. Due diligence requires significant proactive steps be taken before an incident of non-compliance occurs. Our firm can help you identify the most likely and the most serious risks of non-compliance that may occur based on the industry in which your business operates. Once you and your business better understand the likelihood and risks of non-compliance, you can take steps to implement standard operating procedures and measures to protect against future incidents. Rest assured, due diligence does not require perfection, but it does require careful consideration of the likelihood of incidents occurring, and taking all reasonable steps to prevent them from happening. Our lawyers are well-equipped to assist you and your company craft those policies and procedures to best protect your business and reputation.

Determining whether due diligence will be available to you requires a weighing and balancing of various factors. The law is not always clear what all reasonable care or all reasonable steps means. Simply showing that your company has the best equipment or that your diagnostics show there were no errors will likely fall short of establishing due diligence. Satisfying the industry standards may not be enough. While the law may not require you to show the precise cause of a failure, you must be able to show how all reasonable steps were taken to prevent it from happening nevertheless. For this reason, you should get the strategic advice from a lawyer who is experienced in regulatory law and due diligence, who can assist you or your business and determine whether your practices and policies meet this high standard.

Schedule a Consultation with a Regulatory Due Diligence Lawyer Today

Seeking sound advice and acting proactively can protect your business in the future should the worst happen. Due diligence systems are often viewed as a sort of insurance policy in the event that a failure occurs. Our lawyers can help you avoid regulatory offences and provide you with a plan to protect your business in the event that the worst case scenario happens, whether it be a worker injured on the job, an environmental contaminant is released, or products are sold without proper approval.

Our lawyers have experience dealing with experts in various industries and regulatory agencies. As experienced litigators, we have dealt with due diligence cases in regulatory and quasi-criminal trials and appeals and are ready to assist you and your business needs today. Contact our office to schedule a free consultation with our lawyers to see how we can help you. Don’t leave your company exposed to enforcement and investigation. Have a detailed plan for how to handle and manage incidents should they occur.

 

Members of The Criminal Lawyers Association, Toronto Lawyers Association, Ontario Bar Association 
and Advocates' Society.

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Damien Frost & Associates LLP

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