Managing Risk

Governance refers to the structures, systems, and practices that an organization has put in place to operate and manage.   Legal identity is the most fundamental aspect of governance.  Most markets address it when they form.  Usually, a group of people (farmers, community members or both) come together to establish the market.  They form a committee or board to make decisions and oversee the market set-up and operations. From a governance perspective, they are an unincorporated non-profit organization.  From a risk point of view, it means that each member of the organization, including vendors, may be personally liable for the debts of the organization.  An unincorporated entity cannot sue or be sued.  The individual members can be sued for the actions of the organization.

Farmers’ Markets Ontario recommends that markets, no matter their size, incorporate.  Incorporation gives a non-profit organization (NPO) legal status and limits the liability of the individual members.  Incorporated NPOs can also enter into contracts, own assets and borrow money, as required, to operate the market.  Incorporating does not mean that directors have no exposure to liabilities under the law.  However, that can be managed with proper due diligence and once incorporated, the market can purchase officers and director’s liability insurance.  Refer to FMO’s Market Member Directors and Officers Insurance Program with Co-operators (link  to Section 5 of Insurance Section)

An incorporated market can apply for funding and grants.  Many people think non-profits cannot make a profit in any given year.  That is not the case. Markets are encouraged to build a surplus of at least one year’s operating expenses to cover unforeseen situations, expenses, or opportunities.  The Covid-19 pandemic was a good example of the importance of having a surplus.  It saw market’s operating costs increase to meet sanitizing and social distancing requirements and lowered stand revenues, as only food vendors could operate and the number of stands was reduced, due to social distancing requirements.

Farmers’ markets can incorporate under the Not-for-Profit Corporations Act, 2010 or the Agriculture and Horticultural Organizations Act, R.S.O. 1990 based on their goals and objectives.

The website Nonprofit Law Ontario provides helpful information on how to incorporate a non-profit under Ontario’s Not-for-Profit Corporations Act (ONCA) and indicates that the registration cost is $155.00.

Vendors should also consider their legal identity to determine how their farm/ business assets are legally arranged.  Incorporating your farm/business is a way of separating farm/business assets from personal assets. Vendors should speak with their lawyer and accountant to determine the best option for their farm/business.

Most markets do not own the property where the market operates. The majority operate on public property (municipal parks, streets or other public spaces) or private property (a business parking lot or vacant lot). Most markets have formal agreements, usually a lease or a license, that spell out the conditions for the use of the land.  Operating on someone else’s property can present risks for your market.

Farmers’ Markets Ontario (FMO) recommends that you have a written agreement that clearly identifies when you have access to the space, under what conditions, and the responsibilities of both parties.  Further to Section 1 above, your market should be incorporated, and the incorporated entity should enter into the agreement. Section III below deals with insurance and identifies that most municipalities and landowners require that markets have liability insurance providing coverage for bodily injury and property damage to third parties (customers or members of the public) which occur during the Market’s operation and, for which the farmers’ market is deemed legally liable. Farmers’ Markets Ontario (FMO) recommends that all markets have general liability insurance.

Completing and keeping copies of the Market Day Check List and End of Market Day Report can limit your market’s liability. It is important that market managers identify any safety concerns, especially trip hazards (uneven surfaces, potholes, long grass), to the landlord.  This should be done in writing, saving copies of emails or texts. You can limit your market’s liability by keeping good records of the site conditions and communications with your landlord/host.

Maintaining a good working relationship with your landlord/host is important to ensure the successful ongoing operation of your market.  That relationship will help you work together to address risks and deal with any claims should something happen.

Vendor rules and regulations can include items that limit risks and ensure that the host/landlord requirements are met. For example, vendors should be responsible to identify issues with the surface (uneven or potholes) inside their stand and to remove all product, items and garbage at the end of market day.  See the Risk management forms and checklists section for examples.

Risk management also includes having an emergency plan.  Being prepared for an emergency can ultimately save lives and property.  The market should have an emergency plan based on its operational nature and requirements and include the following:

Planning

• Review the market layout to ensure it provides safe vendor and customer vehicle access and movement, including:
  • Vendor access to their stands – where do they unload, load and restock from?
  • If vehicles are part of the stand, how do they safely get into and out of the stand?
  • Where do customers park and how do they safely enter and leave the market?
  • How is access to fire hydrants and fire lanes maintained for emergency vehicles?
  • Are solid vehicle barriers required to protect the crowds gathered from an accidental or intentional ramming incident?
  • Is the market identified with its municipal address to ensure first responders find it as quickly as possible in an emergency.
• Parking and walking entrances and exits are clearly signed or marked with parking pylons or barricades
• Staff or volunteers, in safety vests, assist with parking and vehicle movement, as required

Implementation

• Identify the market manager, or their designate, as the “go-to-person” in an emergency
• Have a charged mobile phone should you have to contact 9-1-1
• When calling 9-1-1 Identify the market by its municipal address to help 9-1-1 operators locate you and first responders get to you as quickly as possible
• Have a well-stocked first aid kit and blankets available and accessible during market hours
• Have a megaphone, with charged batteries, available and accessible to manage crowds
• The market manager and their designate(s) should have first aid and CPR training

Follow up

It is essential that market managers record the details of what happened in an incident or emergency, share it with the market board or other parties, as required, and file it for future reference.

The Market Incident Report form can be adapted for your use.  It is important to collect the contact information for the person(s) witness(es) and first responder(s) that were involved and to record as much detail as possible.  Getting digital photos of the event is also important.

The market manager should follow up on any actions to be taken or maintenance to be completed that were identified on the form to ensure the risk of re-occurrence is eliminated.