Technical Corner

October 31, 2023

Introduction

The ORFA Legal Awareness courses are often the first reality check for recreation practitioners regarding how legally complicated supervising and managing in the recreation facilities industry can be. Course evaluations from participants will often state that the information needs to be presented to “our bosses” so that they too might understand these requirements. ORFA continues to invest in doing just that.

Historically, ORFA courses have focused on roles, responsibilities and conduct of frontline staff. There is no doubt that having a well informed workforce is an important part of the puzzle, but this will only work if all other responsible parties are doing their part. Ground zero to awareness change would be the introduction of the Workplace Hazardous Materials Information System (WHMIS) in 1988. This program was the first time that the use of “workplace parties” terminology was used. This terminology outlined that health and safety responsibilities are layered and places an equal amount of required investment in compliance on all parties. The program was designed to inform all partners as well as setting out specific obligations based on authority in the workplace. The introduction of requiring the development, adoption, posting and annual reconfirmation of a workplace health and safety policy by the employer was the anchoring point to a commitment to creating and maintaining a safe workplace environment. Thirty-five years later, the health and safety policy is often nothing more than workplace wallpaper. To confirm this statement, when was the last time any reader actually reviewed this statement with any new hires, let alone senior staff?

The 2017 Fernie, BC tragedy highlighted the lack of commitment by senior administrative staff and elected officials to ensuring a safe working environment. This shortcoming is not limited to this event but rather is playing out across the country on a daily basis. A recent presentation to a member’s council had the standard question asked, “where are we supposed to get the money to train our staff”. The response was probably from the same pot that will be used to pay fines for non-compliance to regulated responsibility. And a fine for non-compliance is a warning to do better would in fact be the best-case scenario, as not making these investments that results in a life altering injury or loss of life to a worker or user would be a much higher price to pay. The basis for these types of decisions are often an operations appetite for risk.

One role that ORFA plays is to raise awareness that recreation operations may not be deemed an operational priority after other services but in reality, the recreation department has many levels of legislative compliance obligations to be met that are not always embraced. To assist in our efforts to raise awareness, the ORFA reminds senior staff that safe and compliant operations always starts and ends with the owner. Defining the owner is at times not clearly defined.  However, there is bed rock that will be used if determining where the workplace failed to meet its obligations is called into question.

Every key piece of regulatory requirement speaks to the role of the owner. Consider these common definitions found in key legislation in the industry.

Occupational Health and Safety Act RSO 1990, c O.1 | [More]

“Owner” includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate.

Operating Engineers Regulation O Reg 219/01 | [More]

The “owner” is “the person to whom or which the plant is registered but does not mean the operating engineers or operators who operate, control. or maintain the plant”.

Regulation 565 – Public Pools RRO 1990, Reg 565 | [More]

“Owner” means a person who is the owner of a public pool or spa.

The issue often becomes who is the actual point of contact that is responsible for the application of the responsibilities associated with the obligations attached to the role of the owner. In a municipal setting, it would be reasonable to expect that elected officials assume the highest level of responsibility and possibly accountability.  However, as these individuals are subject to change through the electoral process, it should be reasonable to expect that the position that remains constant through this process (the CAO) would be a primary point of contact to ensure that a constant application of the owners regulatory responsibility is met during any transition. It would also seem unreasonable that a position such as a CAO would be hands-on with regulatory compliance but not unreasonable to expect that the CAO would oversee the competency and or qualifications of those selected to represent the owner in the day-to-day operations. Note: in a private operation it would be the Board of Directors and Chair and in First Nation operations it would be Chief and Council.

It has previously been said that a recreation facility is the heart or "hub" of a community. It is a space that allows for sport, entertainment, and social interaction to take place all at the same time. Community recreation infrastructure often represents a large investment by the rate payers. Recreation buildings are also at times a series of complicated and sophisticated technologies, equipment, and designs. It is the owner’s responsibility to ensure they have the most appropriately trained staff in place that can maximize operations, reduce liability, and extend the projected lifecycle of the investment. In the end, recreation operations deserve the same level of focus and investment as other departments. So, to answer the question as to where smaller communities get the necessary funds to train staff. The first solution is to hire individuals with the skills, training and accreditation that matches the position. If not successful in attracting such an individual, then the required training funds must come from the rate payer through increased taxes or users through increased user fees. Not having properly trained staff creates a reliance on insurance to cover any incident which will result in a need to have rate payers cover insurance increases through increased taxes or users through increased user fees. To invest in recreation infrastructure is the simplest part of the decision. Creating an effective operational business plan that aligns with the construction is often avoided. The reality of increased oversight by regulatory governing bodies will force many operations to review past practices and at times, change the way business is being conducted. The ORFA offers many of the required tools to improve operations as a benefit of membership. It further sets recommended training and educational levels that are not single sourced through the Association. How recreation owners meet these waypoints of industry driven recommended minimum levels of competency and qualifications of staff is left with each operation to design. Should assistance be required in meeting these pressure points, the ORFA is here to support our industry along this journey.