For risk averse commercial property owners, managers and condominium managers—not to mention any company that has employees—unaware of the general duty clause contained in Ontario’s Occupational Health and Safety Act (OHSA), now is the time to get educated.
The principle behind the clause is simple. The Act states that employers must “take every precaution reasonable for the protection of a worker …” The measure is intended to ensure that organizations don’t cut corners to lower costs in areas such as workplace safety, thereby putting individuals at risk of injury—or worse.
But an Ontario Court of Appeal decision in Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017, greatly broadened that concept, and should give property owners and managers pause. Now, basic compliance with the Act is likely no longer enough to satisfy the general duty test—a development that vastly increases prosecution exposures. It forces employers to analyze risk at all levels and take enhanced precautions that could far exceed legislated minimums.
Workplace liability exposures on the rise
In the Quinton Steel case, an employee died after falling from a two-metre platform. The welder who fell was not required to tie off at that height, nor did OHSA standards deem it necessary to install a guardrail across the platform on which he was working. A lower court dismissed charges against the firm, until an Appeal Court judge overturned that earlier decision.
In his ruling, the Appeal Court judge explained:
“… Prescriptive certainty is not required in the context of regulatory offences such as s. 25(2)(h) [of the OHSA]. That section establishes a standard, rather than a rule, the requirements of which are tailored to suit particular circumstances. Employers must take every precaution reasonable in the circumstances in order to protect workers. Reasonableness is a well-known legal concept that is interpreted and applied in a wide variety of legal contexts. Its use in s 25(2)(h) does not give rise to intolerable uncertainty.
“It may not be possible for all risk to be eliminated from a workplace … but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required … in order to protect workers.”
In other words, even though the employer didn’t have to use a guard rail or require its employees to tie off at the height from which the welder fell, the judge’s ruling indicates that management should have identified the risks and acted above and beyond those minimal legislative requirements.
This means that as a commercial property owner or manager, anyone working on or around your commercial property is effectively the liability of your organization; their safety in the workplace is of the utmost importance and cannot be ignored. In 2017, the government boosted OHSA non-compliance fines to $100,000 from $25,000 for an individual or unincorporated business, and to $1.5 million from $500,000 for corporations—further underscoring organizations’ impetus to comply.
Leveraging security expertise to mitigate legal risk
As you read this you may be wondering: why is a security firm working to educate its readers about a relatively obscure, albeit highly significant, legal consideration? Because your organization’s security team—whether staffed by in-house employees or outsourced to a company such as Wincon Security—can be a first line of defense in highlighting potential risk exposures.
The first step in our comprehensive client onboarding process, for example, involves a thorough property risk assessment. It isn’t simply meant to highlight potential security issues such as outdated camera systems or inadequate card access technology. It’s also intended to alert property owners and managers to other challenges that could result in fines or lawsuits. Our guards are not only trained to be on the lookout for potential risk areas during that initial assessment, but throughout the entirety of our client engagements.
Adequate security training is crucial
In many cases our team will recommend one of our integrated solutions such as HD surveillance cameras, not only to monitor a property, but to also provide a record of events should an incident occur that could lead to litigation. At the same time, our guards prepare daily reports (in addition to specific incident reports) designed to proactively flag risk areas. Let’s say you have contractors renovating your property and our guards see them acting unsafely, perhaps ignoring safety procedures such as tying off at heights, or engaging in any other form of unsafe conduct. They won’t hesitate to bring the issue to a supervisor’s attention, who will then follow our incident response process and put it firmly on your risk-mitigation radar.
Because the courts have made it clear that organizations need to take every reasonable precaution—and then some—to prevent accidents and assume that risks may exist virtually everywhere, our clients need all hands on deck to mitigate the threat of prosecution. A well-trained security team can fulfill that role, but it’s incumbent on property owners to ensure they choose the right firm to protect their interests. Not every security provider has the training processes in place to ensure their people go above and beyond the call of duty.
Take the time to vet several security companies and choose wisely. Doing so could save you time and stress—and enormous amounts of money—fighting a case in court if an accident occurs on the premises of your commercial property, retail outlet or condominium.
Winston Stewart, President and CEO