building safety hazards

Foreseeable safety hazards spell liability

Landlords' duty of care overshadows mere building code compliance
Monday, November 23, 2015
By Barbara Carss

When it comes to assigning liability, property owners/managers are advised to foresee that their grandfather is probably going to cause trouble. Mere compliance with code requirements from the era in which a building was constructed will do little to convince the courts that holders of the “duty of care” have been diligent in fulfilling their obligations.

Landlords should always look deeper than the building code before trusting they have grandfathered status to exempt them from later adopted requirements. The provincial fire code and municipal bylaws can, and often do, dictate standards that could necessitate upgrades and/or retrofits in existing buildings, while the Occupier’s Liability Act covers a wide scope of scenarios that tend to turn on the details of each incident.

“The fact that something was built to a prior code standard which was not later subject to retrofit is just one factor. Another key factor is ‘foreseeability’, meaning you have to look at additional facts,” explains Joe Hoffer, a partner and specialist in residential tenancy and municipal law with Cohen Highley LLP. “Was the potential danger known or should it have been known, perhaps based on insurance cautions to owners or industry bulletins? Have there been past incidents at the same property? If so, there is likely liability.”

Beyond the occupier’s duty of care — a responsibility that property owners bear toward inhabitants, visitors and trespassers — commercial and multi-residential landlords are also employers subject to health and safety regulations and the Ministry of Labour’s scrutiny. These responsibilities, and the potential for liability, pertain to direct employees, contractors and subcontractors working on the site.

Worksite health & safety

“A lot of people don’t really understand what it means to be an employer, but I think property managers are getting better at understanding this and their role in contractor management,” observes David Gardner, national occupational health and safety practice leader with Pinchin Ltd. “Property managers are getting much more sophisticated and realize that having reasonable health and safety systems in place is how they protect their employees, contractors and themselves.”

Those reasonable systems are grounded in safety audits, written policies, explicit instructions, spot checks and record keeping. The responsibility for compliance cannot be offloaded to a contractor. Even when owners/managers lack the technical or other specialized skills for which they are paying the service provider, it’s critical to spell out the big-picture safety rules, such as requirements for working-at-heights training or use of personal protective equipment, and have the contractor sign off on them.

“There are certain things employers need to specifically tell the contractor to do,” Gardner stresses.

It will be difficult for owners/managers to prove vigilance if their safety efforts are out of step with common industry practices. Interpretation can come into play, as can the investigator’s reluctance to interpret.

“If there’s a worker injury or fatality, the Ministry of Labour might just charge everybody — the owner, the property manager, the contractor, the supervisor on the site — and let the courts sort it out,” Gardner adds. “The courts’ view of ‘reasonable’ is also based on what your peers are doing. If one company has polices and procedures in place, it’s reasonable to expect that others will.”

Fire code violations are typically the most prevalent building safety hazards and compliance pitfalls — often related to inadequate testing and inspections of alarm and other life safety systems; improper or missing fire-stopping; or shoddy oversight and housekeeping, such as propping open fire doors or using stairwells for storage. Equally concerning from a worker safety perspective are lack of fall protection, failure to ensure electrical lockout/tag out, and lax safeguards for storing and using hazardous chemicals and materials.

Rooftops, elevated platforms or other uncontrolled areas above grade continue to be the most dangerous worksites in buildings. “Falls are the number one cause of fatalities in construction,” Gardner notes.

Property standards

Potential for falls is also the source of concern in violations of Toronto’s property standards by-law (also known as Chapter 629 of the Toronto Municipal Code) commonly cited in multi-residential buildings. The Municipal Code stipulates the height and closure of stair guards and railings to prevent people from climbing on or over them, and mandates window safety devices to prevent horizontal or vertical openings greater than 10 centimetres on windows situated more than two metres above grade.

“It is the responsibility of the building owner to have window safety devices installed and maintained and it is the responsibility of the tenant to cooperate with the building owner,” says Pat Burke, supervisor of Toronto’s Multi-residential Apartment Building Audit Program.

In addition to missing window safety devices, some of the most common infractions include: improperly installed air conditioners; inadequate or missing lighting and exit signs; and slovenly garbage rooms, hallways and/or stairwells. The City relies on communications and advance warning to prompt landlords to correct these issues before inspectors arrive.

“Communication is key when striving to gain compliance with a Property Standards order. During a pre-audit assessment of a building, our officer communicates to building owners and managers on property standards violations that exist,” Burke says. “We let them know they are on our radar and could be subject to a building audit. With this kind of warning, a great deal of those violations should be rectified by the scheduled audit date.”

Informed compliance

Meanwhile, other industry insiders caution property managers and condominium corporations not to lose sight of compliance obligations in their eagerness for energy efficiency and operating cost savings. Falling prices, an abundance of incentives and zealous vendors have all contributed to the growing take-up of lighting controls and motion sensors, but there are stringent safety requirements in underground parking garages that alter the usual economics.

Notably, Toronto’s Municipal Code stipulates a lighting level of 10 lux — equivalent to emergency lighting — must be maintained at all times and, once triggered, lights must remain fully illuminated for at least 15 minutes before dimming down again. Lighting specialists counsel prospective investors to be skeptical of promised speedy retrofit paybacks because they’re unattainable without flouting the property standards.

“It’s very difficult to meet those parameters and still save money. The system will sense occupancy. It’s not a timer so the 15-minute time delay doesn’t kick in until after the space is vacated, evaporating a lot of the incremental savings,” says Michael Colligan, president of the lighting services company, Lighting Solutions. “In a large garage with a diverse tenant mix, it will be a struggle to get any savings at all.”

Nor will building officials have sympathy for scofflaws who install non-compliant sensors on bad advice.

“Ignorance is not an excuse,” Burke reiterates. “We don’t like to get involved in telling property managers who they should deal with, but they should be service providers who are professional and who understand the requirements.”

Awareness and regular monitoring to stay on top of emerging issues are central to good risk management practices. In David Gardner’s view, employers shouldn’t worry about safety auditors’ and inspectors’ scrutiny; they should worry about the questions they don’t know how to answer. Similarly, property owners/managers need to know the state of their buildings.

“It is important that they keep up to date with cautions issued by the industry and by their insurers, and that they audit their premises regularly to ensure that there are not dangers lurking on the property,” Joe Hoffer says. “The audit should be conducted by a qualified building science professional who has been made aware of any incidents or complaints from any person at the site over the previous audit period.”

Barbara Carss is editor-in-chief of Canadian Property Management.

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