By Alisa Kamynina, GL, OLCM Senior Condominium Manager
If I told you that one of the most serious legal requirements on your site is also one of the least acted on, you probably wouldn’t be surprised! Health and Safety compliance under the Occupational Health and Safety Act (OHSA) is a thing every manager knows they need; however, too many of us have not fully put it in place, often likely because the board hasn’t approved it. We all know what it looks like when boards lose interest in certain topics. We have also heard “let’s revisit this next month” if Directors are unsure about requirements.
My portfolio ranges from smaller to larger buildings, and approval was granted by all the boards. The most challenging was the smallest building, where budget concerns made the board particularly resistant. I have no hesitation saying that sometimes teamwork is required — our Director of Training and Education, Laura Lee, came in person to address the board’s concerns and clarify the legal obligations directly. Changing the framing of this conversation worked well across all three corporations.
Not a discretionary agenda item
The first thing everyone should be clear on is that this presentation is not a vote on whether to comply with Ontario law. OHSA applies to every condominium corporation that has people working on-site (contracted and in-house staff), which includes superintendents, concierge, cleaning staff, etc. The obligations are triggered the moment a worker is being paid to perform a service, and the workplace is defined as the site where the service is being performed.
Secondly, the liability picture must be shown specifically: here is what OHSA requires, here is what we currently have, here is the gap, and here is what can happen if a worker is injured and we cannot demonstrate due diligence. Board Members and managers who understand that they personally could be named in a Ministry of Labour investigation tend to take a different perspective on the approval process.
I prepared and presented a plan for how we could comply, then asked for approval of the associated steps and expenditures. When the Board understands they are not being asked whether or not to follow the law, the conversation changes.
The liability argument
It is always the liability picture that moves the Board, not the documentation requirements or the training requirements.
Under OHSA, Directors, managers and supervisors can be held personally liable if a worker is injured and it can be demonstrated that proper procedures were not in place or not enforced. There is no difference for the Ministry of Labour if the corporation has a large or a small budget; the investigation just asks whether you did everything reasonably required to prevent this.
If the answer is undocumented, the consequences can include fines, orders to stop the work, and personal charges against Directors and managers. Board members who volunteer their time are not automatically shielded. There is personal director exposure under OHSA in documented cases of negligence.
If management sought board approval for H & S compliance and the Board declined, and then an incident occurred, that paper trail must be on record. The recommendation was made; the Board’s response was documented. There is a difference between a manager who has demonstrated due diligence and one who does not. I encourage you to do your best by being prepared, presenting the requirements and documenting the outcome in the minutes.
How to come prepared
You arrive at that board meeting having already done the work with an analysis of what is in place and what is missing, a clear scope of what is needed to be completed, and pricing from approved vendors (in our case, options that Duka has already sourced on behalf of all sites). The board’s job is to review and approve.
It is important to remove every obstacle before we walk into that board meeting. Coming prepared also shows that this is treated seriously.
If the board still says no
It happens! If a board declines or defers, the minutes of that meeting must reflect it accurately: management brought a Health and Safety compliance recommendation pursuant to OHSA requirements, outlined the scope, sought approval, and the board deferred or chose not to proceed at this time. The nature of the recommendation and the board’s response need to be recorded.
Documentation is the protection
Across all my properties, the Health and Safety program is now in place, board-approved, and documented. It tells any inspector or investigator that the corporation is committed to H & S, they have made a financial investment and sets out the expectations of the staff and contractors.
The question is not whether your building will face a health and safety situation, because it will. The question is whether, when it does, you will be able to demonstrate that you did what the law required.
If you have questions about structuring your H&S presentation for your Board, please reach out to Laura Lee, our Director of Training and Education, or speak with your supervisor directly. This is a company-wide priority, and support is always available.