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 offenses 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 expert security solutions to mitigate legal risk
As you read this you may be wondering: why is a security agency 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 the 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. Expert security solutions like ours 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 expert security solution 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.
Hire a security solutions company that takes a customized approach
One of the most interesting aspects of running a commercial property security business is being able to work with clients that have previously engaged with other firms in our industry. Maybe this applies to your company.
What we’ve found is that many of our competitors deliver security plans that are generic, non-specific, and inadequate. Why? Because many firms use templated action plans that can be standardized and rolled out time and again, no matter the client. While this helps maximize the efficiency and profitability of the security firm, what I would call the McDonalds-ization of commercial property protection offers few benefits to clients.
No two commercial properties—be it retail, commercial, condominium, office, or industrial building—are the same. They all have unique needs that require customized, expert security solutions that address your short- and long-term needs and goals. If not, your assets will remain vulnerable and an ideal target for the bad guys who might look to vandalize or break into your space.
And make no mistake, professional criminals know the security firms that are more diligent and detailed as compared to those that are not. They tend to prey on the latter and design their plans accordingly.
As a commercial property owner or manager, look for a security company that comes to the table with a tailored strategy suited to your needs—not someone else’s. With that in mind, here are four important questions to ask when engaging with a security firm and evaluating their proposed security program:
Does it reflect your distinct requirements?—Before signing on with a security firm, sit down with your staff and determine what you think is your organization’s commercial property security needs. Perhaps you store hazardous chemicals at your facility, for example, or operate on a 24-hour basis meaning you require round-the-clock protection. Whatever the case, it helps to have at least a basic understanding of your unique security needs. When engaging with a firm, make sure they ask those same questions. Again, many will offer a generic plan, but only a thorough security risk assessment can define the ideal approach for protecting your property. If your security provider isn’t willing to take that step, be prepared to look elsewhere for help.
Does it integrate technology solutions?—This is a very important consideration at a time when everything from high-resolution cameras to drones and robot security guards are revolutionizing our industry. Any coherent commercial property security proposal should include a relevant security component when applicable. That could be something as simple as the use of electronic checkpoints to track guards’ movements or as complex as a complete integration of security systems across your IT infrastructure for ease in monitoring properties. Such considerations are no longer the domain of large, deep-pocketed security companies. They’re a pre-requisite for doing business in our industry, and a key element that you should expect to see in any security plan.
Is it priced right?—Price points vary greatly across the commercial property security industry in Canada. As in any sector, larger, reputable firms will generally charge more than their smaller competitors. But that isn’t always the case. Sometimes industry behemoths will look to undercut their tiny rivals by offering security services at near break-even rates, particularly when they have other, highly profitable products and services to up-sell. As is the golden rule when buying any service, you only get what you pay for. Be just as wary of providers who undercharge as those who try to gouge clients based on perceived brand reputation and industry clout. Look for providers willing to work within your budget and establish a tiered rate card based on your individual property needs.
Does it scale?—The plan may be appropriate for today, but what happens when your facility-protection needs change, or you add more properties to your commercial portfolio? Can that security provider adjust its strategy to address those changing needs? Be mindful of how the security agency is managed, and particularly whether management is organized and willing to grow its business alongside yours.
It’s only once you have the answers to these critical questions that you can choose the security company best suited to protect your commercial property assets. And from someone with 25 years of experience in the industry, believe me when I say that it’s well worth taking ample time to come to the right decision.
DO YOU NEED EXPERT SECURITY SOLUTIONS?
FILL OUT OUR QUOTE FORM AND ENJOY A CONSULTATION WITH US.
Winston Stewart, President and CEO