Health and safety concerns are radically different today.

As discussed in Part 1 of this series on farmer liability and its impact on implementing health and safety measures, the farming landscape has undergone several sweeping changes in a little more than a generation. From transgenic crops to GPS-based technologies, genome editing to automation, the overall goals of these changes have been to ease the management burden for producers.

The size and complexity of farming operations are also more challenging. Greater specialization, on-farm storage, and intensified food safety and security measures compound the pressures for farmers. In spite of the potential for simplifying working conditions as technology intends, these advances may have the opposite effect in some circles.

Still, farmers have always demonstrated an incredible ability to adjust to changing demands, whether it’s equipment manufacturers, seed and traits, or “on-the-ground” operations implementing ever-changing environmental guidelines within the food value chain. It’s how the industry is able to stay profitable as it continues to evolve- like for many sectors nowadays, change is the only constant in agriculture.

These changes have also come with regards to health and safety directives and liability for incidents on farming operations. Gone are the days when farmers could get by on a simple handshake or a barter-and-trade system; now there need to be clear guidelines and conditions set out in advance by contractors and the farmers who hire them.

In the previous instalment, the Health & Safety team at Elite Agri Solutions Inc. provided clear definitions of contractors, general contractors, constructors, subcontractors and employers, and the implications for each. In the second of this two-part series, they will continue to address the topic of liability and how it can be overlooked or underestimated.

Q: When discussing health and safety, is there a danger of focusing too much on “getting the job done” and in doing so, overshadowing the underlying importance of determining different parties’ liability?

A. Absolutely. In both agriculture and construction businesses have very tight schedules, run extremely costly operations, and are often juggling multiple responsibilities or projects at any given time. When something goes wrong in one of these industries however, it can go seriously wrong, and unfortunately the resulting legal and financial implications can be overwhelming for individuals and their companies. For this reason, establishing clear health and safety responsibilities and adopting all required measures before starting a project (training, signage, culture, etc.) are so important, both in reducing the likelihood of an accident and the ensuing legal aftermath.

When an accident does occur, there can be a silver lining to highlight the importance of these two actions. In both these industries it is not uncommon for news of what happened to trickle through the wider network of related businesses and surrounding communities. The resulting spike in awareness can lead to more introspection occurring in organizations or all shapes and sizes, leading them to examine their own state of affairs or pay closer attention to upcoming projects. Those who find gaps to fill in their own processes often do so or will hire experts in the field of health and safety for consultations. Though many companies may originally want to relieve themselves of certain responsibilities, observing the consequences on a fellow business can lead to the more widespread implementation of improved health and preventative safety measures, long term.

Q. Is it in the best interests of a farmer to hire a lawyer to draft a contract when hiring a contractor? Or do most contractors have a document they show clients before the start of work?

A. The answer to this is dependent on the contractor in question. At Elite Agri Solutions, however, we advise our clients to be prepared for situations where a contract is and isn’t available, or in other situations, that a farmer be well informed about what they want covered in a contract to best protect themselves and the contractor. For this reason, we recommend farmers consider the following to be as proactive as possible:

1. Be self-accountable: When hiring a contractor, it’s in the farmer’s best interest to understand what each parties’ responsibilities will be based on the nature of the project and parties involved (outlined in Part I of this series). In particular, the farmer should know in advance which party is considered the “constructor”, what the project will involve and what type of insurance and training the contractor should provide before starting. Though we have been discussing the health and safety responsibilities for a hired-out project, each farm should also have its own health and safety program for their site and employees irrespective of those of a hired contractor. These include workplace policies, expectations for employees while at work, emergency response steps, records of training, and written standard operating procedures for each job/task on the property. Having that record of prioritizing safety is essential in helping to prove a trend of employer due diligence.
2. Wise “partner” selection: Choosing the right contractor/constructor for a project is extremely important, beyond the realm of health and safety. Selecting individuals or companies with sufficient project experience, a demonstrated safety record, and who are willing to provide evidence of insurance and evidence of Workplace Safety and Insurance Board (WSIB) coverage (via a clearance certificate) speaks volumes about the competence of the individuals being hired. In the words of the Occupational Health and Safety Act (OHSA), competence is earned through knowledge, experience, and/or training, but to be truly qualified for a job, individuals should also be familiar with the Act, their job’s legal requirements, and any workplace associated risks.
3. Legal/professional consult: This may be a one-time or repeat need for different farms, but when dealing with liability, having a lawyer or health and safety professional look at a legally binding document with high-risk responsibilities attached is always a wise decision. For any farmer hiring a contractor for the first time, or for a project or an unfamiliar nature, going over a self-made or provided document to verify its thoroughness can go a long way in helping a farmer ensure there are no gaps for which they could be responsible following an accident. The document could then be used as a template for reuse in future applications, but regular updates accompanying those of corresponding health and safety legislation will need to be regularly incorporated.
4. Documentation: Sealing a deal with the shake of a hand is a demonstration of good faith on behalf of both parties involved, and in cases where nothing goes wrong can be seen as proof of this practice being sufficient. However, it neglects the fact there is a silent third party, namely the Ministry of Labour Immigration, Training and Skills Development (MLITSD), which has a stake in the project to be undertaken and will become actively involved in the event something does go wrong. For peace of mind of all parties, it is strongly recommended farmers prioritize written documentation with signatures outlining all agreements alongside verbal and good faith hand-shake agreements for tradition’s sake.

Q. Is it prudent for the farmer to have a lawyer or insurance agent read through documentation before work begins?

A.Yes, to reiterate the previous section, it’d be highly prudent for a farmer to consult with an expert in the realm of legal responsibilities, at least for the first time a farmer contracts out work. Having this professional outside opinion can help speak into the validity and soundness of a contract, as well as to the required/recommended insurance coverage for projects of a similar nature. The benefits of obtaining legal advise include:

Clarity: Having a lawyer review contractual documentation can provide reassurance that it will hold up to any scrupulous questioning by clearly defining each party’s responsibilities and liability for different aspects of a project. This leaves less room for interpretation in the event of an accident and matters being brought to court, and can adequately protect the farmer’s interests. It also helps prevent misunderstandings by providing the farmer the opportunity to ask any questions they may have and get tailored explanations about their situation, providing additional security through knowledge in the unfortunate event a dispute were to develop in the future.

Guaranteed Compliance: A lawyer can verify that documentation is compliant with current and relevant laws and regulations, in the realm of health and safety but also any other applicable legislation the farmer may have otherwise been unaware of, reducing legal complications and fines in the long run.

Dispute resolution: Legal experts can add in additional provisions for dispute resolution, outlining a structured process for handling any issues that arise and potentially helping to avoid lengthy legal battles.

Q. Are farmers generally aware of the need for insurance and its implications on their liability?

A.Unfortunately, it’s likely there are many farmers who are unaware of their legal requirements and responsibilities when hiring out work, and this can extend to the type and adequacy of their required insurance. If they aren’t familiar with all the aspects of insurance, then the implications on liability will be equally unknown. Particularly in instances where a farmer has not received formal education in agriculture or business, the chances of being fully informed on what duties they bear as employers/owners or potential constructors is highly unlikely. Word of mouth can spread recommendations of previously approved or recommended insurance packages in a community or between connected businesses, but applications to individual projects can be more of a challenge.

Q. What are the responsibilities of insurance companies and contractors on this issue?

A. Involving insurance companies and contractors in discussing accountability and risk management is important to the success and integrity of a project, and each group has its own responsibilities regarding awareness which merits attention. The following is a breakdown of how each might approach these issues.

Insurance
In Canada, insurance companies and their agents have a legal duty to act in the best interests of their clients, referred to as a “fiduciary duty.” While they aren’t always required to provide comprehensive advice on the “perfect” type of insurance for each individual, they must ensure that any products they recommend are suitable for the client’s needs and circumstances. This would include ensuring they recommend options that encourage:
Regulatory compliance: To benefit both parties, insurance companies should be checking for confirmation that clients are complying with relevant health and safety laws that would impact their eligibility for coverage. Non-compliance can lead to fines, legal penalties, and damage to a client’s reputation, but can also cause large financial losses for the insurance company over time if there are repeated mistakes.
Risk assessment: Completing a proper assessment of the risk and hazards on a project prior to commencing provides the best starting point to begin mitigating potential accidents. Being well informed about the level of risk also helps insurers evaluate the degree of coverage required based on the danger presented by a project and set appropriate premiums that translate to better coverage.
Innovation and product development: Insurance brokers need to stay current with legal changes to do their job well and drive innovation in products and services. Insurers can develop new offerings that meet emerging legal standards and consumer needs.
Consumer protection: Being informed about legislation helps insurance companies protect consumer rights and their own reputations with transparent and fair services.

Contractors
Ensure compliance: Contractors must ensure their own compliance with OHSA and its Regulations on any project they are involved in (along with workers). Ultimately that contributes to a safer job and reduced risk of consequences leading back to the hiring farmer.
Provide information and training: Contractors must provide their workers with information and training for specific tasks often done on construction projects if they apply (e.g. working at heights or forklift training, etc.). By providing evidence of this training to the farmer as the employers, they demonstrate a deeper understanding of their legal requirements and competence in their line of work.
Identify hazards: As part of completing a risk assessment, contractors must identify hazards on the job site and take appropriate measures to control or eliminate their associated risks. In doing so they may also provide greater insight to the farmer about the nature of the work for future projects.
Supervise and inspect: Particularly if they are the “constructor” on a project, contractors will need to regularly supervise and inspect the worksite to ensure compliance with safety protocols and identify and rectify any issues. This would also involve co-ordinating with other parties on site if there are any as this is essential to ensure that health and safety measures are effectively implemented across the board.
Report incidents: Contractors must report any workplace injuries, illnesses or fatalities to appropriate authorities, such as the MLITSD and WSIB, as well as keep the employer (farmer) notified of any issues they notice throughout the duration of the project.
Emergency preparedness: Contractors should have emergency procedures in place and ensure workers are aware of and trained in these procedures. They may choose to discuss with the farmer if there are already procedures on site that would be easier to adopt and/or adapt before making their own. Regardless, there must be a plan in place.
Maintain records: Keeping detailed records of safety training, incidents, inspections and other relevant health and safety documentation is crucial to demonstrate due diligence and provide evidence that all reasonable precautions are being taken to ensure the safety of workers on site.