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June 29, 2010 - By Patricia E. Elia

CONDOCENTRIC: Scaffolding Tragedy - RISK MANAGEMENT: What can we do now?

On December 24th, 2009, four of five construction workers fell 13 storeys to their death, and the fifth was hospitalized with serious head injuries, when the double-section swing-stage they were on collapsed.  Reportedly, few of the men were wearing a safety harness and it appears that none of the men were attached to either of the two lifelines shown in post-accident photographs.

The double-section swing stage appears to have collapsed where the two sections were joined and the bolts holding them together may have separated. From site pictures taken after the event there is a large metal container (used for debris removal and new product transfers) that appears to be hanging about one metre below where the swing stage sections would have been joined. A preventable tragedy no doubt with the application of knowledge and common sense.

So: where was the supervising engineer or site supervisor to ensure that the requisite safety gear was being used?  Were the construction workers adequately trained? Why were there apparently only two life lines and at least four workers on the platform? Why were the two life lines not in use? Regulations call for each person in such a situation to be wearing a full body harness connected to a separate life line. Who is to blame for this tragedy; who is going to be sued and held responsible?

As a condominium director or property manager, how do you ensure that you are not hiring a company that permits or does nothing to prevent these kinds of tragedies? YOU CANNOT 100%.  What if you do not get comfort and someone gets hurt – can you be liable for their loss or injury?  YES.

Under amendments to the Criminal Code, directors and officers of an organization, including a condominium corporation can be found liable for negligence in respect of work or performance of a task where there is a legal duty to take responsible steps to prevent bodily harm. Bill C. 45 came into force on March 31, 2004, amended the Criminal Code of Canada, specifically via section 217.1, to change the perception of rules as “bureaucratic paraphernalia” by significantly expanding the scope of liability faced by employers, directors, officers, managers, employees, agents and contractors who exercise control over or have authority over a workplace.

Specifically, section 217.1 states:

Duty of persons directing work
217.1 Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

Other consequential amendments to the Code include the change in terminology from “corporation” to “organization”, which broadens the nature and scope of liability by focusing on the nature and quality of the association rather than the entity’s legal status.  However, there are statutory limits put on liability as exemplified in sections 22.1 and 22.2:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

  1. acting within the scope of their authority
    1. one of its representatives is a party to the offence, or
    2. two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence;

and

  1. the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

22.2 In respect of an offence that requires the prosecution to prove fault - other than negligence - an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers 

  1. acting within the scope of their authority, is a party to the offence;
  2. having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
  3. knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence. [emphasis added]

It should also be noted that “representative” and “senior Officer” as defined cover broader categories of personnel than the “directing mind” concept under common law, which previously limited corporate liability to the conduct of senior corporate officials with the authority to make policy.  The modifications seek to widen the pool of individuals whose actions and intentions can trigger criminal liability of the organizations for which they work.

What does this mean?  Accountability for actions or omissions by organizations and those individuals placed in authority, either individually or in the aggregate, where the prescribed criminal threshold is met.  Where an employer, its officers, directors, senior management, agent, contractor and even staff are criminally negligent, encourage a breach or fail to take reasonable steps to prevent bodily harm to a person in respect of work or a task, he/she/it will be exposed to criminal liability.  Prior to these legislative changes, corporate entities were largely immune to criminal liability.

Can you minimize your risk exposure? YES. How?  Here are SOME (there may be more specific to your condominium corporation) questions to ask and processes to put in place:

  1. Before hiring a supplier:
    1. Identify the risks that failure to perform could result in and include identification of risks in respect of what could go wrong if the method of execution is performed inadequately;
    2. Develop a method as to how the condominium corporation will manage the risks, i.e. checks and balances process.
    3. Determine how to best manage those failures: i.e. insurance, indemnities;
    4. Research the supplier’s reputation:
  1. How long have they been in business?
  2. What do their referrals say?
  3. What is their safety record like?
  4. Is the company’s workplace safety insurance current? Ask for a copy of the certificate and ensure one is provided monthly for the duration of the contract.
  5. Do they have adequate business insurance in place to cover the risk? Does it cover damage to property and injury to person?
  6. Ask them about their Health & Safety programs and how they are implemented?  In one company, we learned that an employee who fails to tie off risks being fired immediately;
  7. Does the condominium corporation’s insurance cover the risk?
  8. Do you want a personal guarantee for performance from a principal of the company?
  9. Is bonding required? Who is paying for it? Is it in place? Ask for proof of bonding.
  10. What is the process of checks and balances to ensure that obligations are being met under the contract?
  11. Who is responsible for executing the checks and balances process within the supplier’s organization? Is the property manager also expect to ensure compliance with the supplier’s policies and procedures? Is it covered by the property manager’s contract?
  12. How does the Board keep abreast of progress on the project?
  13. Does the supplier have evidence, such as a certificate, confirming that all requisite safety training has been undertaken by all employees satisfactorily? If yes, get copies for the condominium’s records? If not, look to the next bidder.
  14. How do you feel about the supplier now that you have done your due diligence?  Does it make sense to hire them?
  1. During the project:
    1. Determine who is in charge of ensuring compliance with the program of checks and balances developed by the condominium. Is property management required to check on the supplier’s compliance to its own policies and procedures. The General Contractor or Constructor, are generally responsible for health and safety on the site, but any obvious violations should be immediately brought to their attention.
    2. Require reporting to the Board periodically on the status of check and balances processes;
    3. If things are amiss, do something about it, even stop the work if necessary.

Thanks and credit to Jeff Jeffcoatt of Construction Control Inc. for sharing his engineering expertise and knowledge and for his thoughts on workplace safety.  Jeff is a certified Joint Health & Safety Committee Member who provides health and safety guidance for Construction Control Inc and conducts seminars for organizations including property management companies on workplace health and safety issues and how to manage the same.

Special Thanks to Jeff Jeffcoat
P. Eng., R.C.M.
Construction Control Inc.

T:  905-856-5200
F:  905-856-1455
E:  jeffj@constructioncontrol.com

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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