How Quickly Your Duty of Care
Can Change
Gloria Keene, CIP, CRM
Risk Analyst
Frank Cowan Company Limited

Post Giuliani

The Duty of Care
• The Municipal Act, 2001. c 25
• Section 44(1) deals with road maintenance

• It states:
“The Municipality that has jurisdiction over a
highway or bridge shall keep it in a state of repair
that is reasonable in the circumstances, including
the character and location of the highway or
bridge”

Defences
• Section 44(3) states:
“despite subsection (2). A municipality is not liable
for failing to keep the highway or bridge in a
reasonable state of repair if,

a) it did not know and could not have reasonably
been expected to have known about the state of
repair of the highway or bridge;
b) it took reasonable steps to prevent the default
from arising; or
c) at the time the cause of action arose, minimum
standards established under subsection (4)
applied to the highway or bridge and to the alleged
default and those standards have been met”

• Section 44(4) states:
“The Minister of Transportation may make
regulations establishing minimum standards of
repair for highways and bridges or any class of
them”

Minimum Maintenance Standards
(MMS)
• To use them as a defense, the standards must
be applicable to the claim, and the standards
had to have been met
• They were meant to provide an opportunity to
limit exposure

• Snow accumulation
4 (1) The minimum standard for clearing snow
accumulation is,
(a) after becoming aware of the fact that the snow
accumulation on a roadway is greater than the
depth set out in the Table to this section, to deploy
snow-clearing resources as soon as practicable;
and
(b) after the snow accumulation has ended, to
clear the snow to a depth less than or equal to the
depth set out in the Table within the time set out in
the Table,

• Icy roadways
5. (1) The minimum standard for treating icy
roadways after becoming aware of the fact that a
roadway is icy is to treat the icy roadway within the
time set out in the Table to this section.
(2) This section only applies to a municipality
during the season when the municipality performs
winter highway maintenance.

Giuliani v. Region of Halton & Milton
Town
• Motor vehicle collision occurred on a highway within the
Region of Halton that was being maintained by the Town of
Milton
• Accident occurred approximately 7:00 a.m. on April 1, 2003,
the day after Milton had ceased regular winter maintenance
activities
• Weather forecasts on March 31 were already citing the near
certainty of snowfall and subzero temperatures for early
morning (April 1)
11

• Snow began falling at approximately 4:00 a.m., with
roughly 2 centimeters accumulating prior to the accident
• Snow was compacted by traffic and refroze into ice
conditions that caused the accident
• There was no agreement as to when the ice condition
formed, road authorities conceded that the likelihood
would have been readily apparent as early as 3:30 a.m.
• A winter maintenance deployment did not occur until
approximately 6:00 a.m., when the shift supervisor arrived
at the yard and ordered one
12

• The court held that road authorities breached their duty of
care by failing to take reasonable steps to monitor weather
conditions during the early morning hours
• Damages were awarded to the injured plaintiff and reduced
by 50% for contributory negligence
• The Court of Appeal upheld the trial judge‟s decision in a
unanimous three judge ruling
• Sought leave to the Supreme Court of Canada (SCC)
• The SCC would not hear the case, the Court of Appeal
ruling stands
13

Why?
• The court held that the MMS did not apply as
the accumulation never reached 5 cm – it had
only reached 2 cm
• Since the standard had never been triggered, it
could not be applied, so it could not be used as
a defence
14

Does Giuliani mean an MMS defense is
impossible?
• While Giuliani may have weakened MMS based
defences to ice or snow road maintenance
cases, the Municipality can still have a
defensible position
15

• The OGRA states that:
“In the wake of the Ontario Court of Appeal
Decision in Giuliani which largely renders the
defence under s. 4 and s. 5 of the MMS
inoperative in most practical circumstances,
current municipal Level of Service policies tied to
compliance with the tables in s. 4 and s. 5 are
likely to be inadequate in ensuring a defence to
negligence claims.”

What do we do now?
• The OGRA recommends that municipalities
review their LOS and revise them to exceed the
tables in s. 4 and s. 5
• Update your Winter Operations Plan
• Develop a guideline for winter weather
monitoring
• Develop a guideline for patrolling of
representative roads
17

• You should also note things such as:
• Are there procedures to respond to winter
events in the downtown core?
• Are there routes that receive additional
service in school areas and hospitals?
• Are there emergency or priority routes?
• Are there susceptible areas in the road
system?
• Are there salt vulnerable areas?
• is the Code of Practice for the Environmental
Management of Road Salts being followed?

• Record keeping is critical
• OGRA states that:
“full and accurate completion of the documents
ensures that the municipality is protected from
liability by providing solid documentation that
procedures have been followed”
• Your LOS should include information on what
data is collected, the format of the data, who is
responsible for the collection of data, and rules
regarding the retention of the data

• Possible winter operations documents include:
• Equipment operators
• CVOR time card
• Material used
• Route plowed and strategy used
• Patrollers
• Winter patrol record – route of representative
roads
• Winter operations – service update report
• Call out diary
• Weather and/or RWIS information received

• Operations supervisors
• Operations diary
• Incident/ collision reports
• Total materials used
• Equipment calibration records

• All documents should be filled out completely
and in a consistent format
• Keep in mind the following:

DATE
• Use a consistent format
• What date is 01/02/06
TIME
• Military or standard
ABBREVIATIONS
• Use industry standards
• Have an „abbreviations key‟
23

CORRECTIONS
• Never destroy or use white out
• Initial changes
GOOD PRACTICES
• Always retain the original document
• Never document work that has not yet been
done
• Never complete someone else‟s documentation
24

CONSISTENCY
• Everyone in the department must use the
same form and document in the same
manner
• Consistency is crucial!
25

• The content of your LOS policy will outline how
you are going to meet the policy‟s goal(s) and
objective(s)
• They can be written in text, expressed as a
table, or a combination of both

Developing a Winter Operations Plan
• Operationalizes the LOS policy
• Sets out detailed procedures on how the LOS
will be achieved
• Would include things such as:
• Human and equipment resources
• Material application rates
• Call out and deployment procedures
• Plow and salt routes
• Equipment maintenance procedures

• It should define the winter season
ex. November 15th of each year through to and
including April 15th of the next year following
ex. The 3rd Monday of November each year
through to and including the 2nd Friday of April the
next year following

Patrolling
• Every patroller should be equipped with the
following:
• Training (representative roads, record keeping
etc)
• Vehicle equipped with pavement thermometer
and two way communications
• Access to local weather forecasts
• Map of entire road system
• Method of recording weather and road
observations

Winter Patrol Record
Weather Condition Codes Collision/Damage Time
Date:
Clear  Time
Police Response yes  no  Police Report #
Partly Cloudy  Time  Needs Service
Patrolled by: Location
Overcast  Time
√ conditions meet
Rain  Time Hours of Work standard
Description
Snow  Time start shift: ________ finish shift: ________
Freezing Rain  Time Approved by:
Fog  Time Time to be recorded
using a 24 hour clock
Visibility: Good Fair Poor Time
Wind Light Moderate Strong Direction_____
Additional
Road Condition Road Condition
Service
between winter events during a winter event
Pavement Temperature
Required
Kilometres Patrolled
Maintenance Class
Air Temperature
Snow Covered
Notes
Partially Snow
Partially Snow
Snow Packed
Partially Ice
Bare & Wet
Bare & Dry
Covered
Covered
Packed
Route of Representative Roads
Street Name Time From To Time 1 2 3 Yes No

• If they are monitoring the road electronically,
they should have:
• Training
• A computer
• Access to RWIS station or stations
• Access to local weather forecasts

• Remember, Training of the patroller is
ESSENTIAL
• All staff reviewing RWIS data as part of a data
sharing agreement with the Ministry of
Transportation must complete the computer
based training course as offered by the OGRA

Weather Monitoring
• OGRA states that:
“One of the most important aspects of winter
response is being prepared for the winter event.
That requires knowledge of the weather forecast
for your region”

Prior to the Winter Season
• Prepare for the supply of materials (salt, sand,
liquid)
• Prepare for the supply of any needed
replacement parts (for plows, application
equipment)
• Prepare for any value added services
(meteorological services) and contract
equipment (plow trucks, spreaders)

• Conduct mandatory training sessions for staff
and contract operators (policies, procedures,
schedules, route maps etc)
• Train winter patrollers on the route of
representative roads and documentation
requirements
• Inspect all equipment to ensure proper working
order
• Schedule and complete any repairs
• Confirm that all guiderail, hazard and fire
hydrant markers are in place

One Month Prior to Winter Season
• Post the winter shift schedule
• Assign the equipment to staff
• Calibrate the material application equipment
• Begin monitoring and recording weather
forecasts on a daily basis
• If a storm is forecast, schedule a winter patrol

• The patrol person should be authorized to
initiate winter response if conditions warrant
• Have a reasonable percentage of the fleet
ready to respond to a winter event
• Have sufficient staff available to operate the fleet
if needed

Two Weeks Prior to the
Winter Season
• Begin regularly scheduled winter patrol of class
1 and class 2 representative roads
• If winter patrol is implemented, weather should
be monitored at least twice per day
• Have the fleet ready to respond to a winter event
• Have the staff available to operate the fleet if
conditions warrant a winter weather response

At the Start of the Winter Season
• Implement the winter shift schedule
• Begin patrolling representative roads
• Respond to winter events as per the operations
plan

During the winter Season
• Weather forecasts should be monitored at least
twice a day and more frequently as necessary
• THE MONITORING ACTIVITY AND RESPONSE
TAKEN MUST BE RECORDED

At the End of the Winter Season
• Stop the regular winter shift schedule
• Continue to patrol class 1 and 2 representative
roads
• Continue monitoring and recording the weather
forecasts at least twice per day
• Have the required compliment of the fleet ready
to respond to a winter event
• Have the staff available to operate the fleet if
conditions warrant a response

Two Weeks After the Season Ends
• Cease regularly scheduled winter patrols
• Continue monitoring and recording weather
forecasts on a daily basis
• If there is a winter storm forecast, or there is the
potential for black ice formation, schedule a
patrol
• Decommission a reasonable percentage of the
fleet

One Month After the Winter Season Ends
• Cease all winter highway maintenance
operations (if weather forecasts warrant)
• Decommission the remainder of the fleet (if
weather forecasts warrant)
• Hold a meeting with staff and contractors to
review any problems and any issues with the
policy, procedures, operation or the salt
management plan
• Use the input to consider policy and/or
procedural revisions to be taken to council

Road Maintenance Agreements
• Some municipalities enter into road
maintenance agreements with either 3rd party
snowplowing contractors, or lower tier
municipalities
• If the verbiage of the contract requires the third
party to „provide winter service standards that
meet the MMS‟, this will need to be amended

Municipality x agrees to defend, indemnify and
save and hold harmless Municipality y from all
claims, lawsuits, losses, expenses and costs, or
any other liability imposed by statute or common
law in any way connected to or in any way arising
out of any actual or alleged breach, default or
neglect of duty in respect of the winter
maintenance of the roads, highways, sidewalks
and other areas referred to in this agreement as
being the responsibility of Municipality x to
maintain.

In Conclusion
• Implementation of these practices may require
that the municipality improve their training of the
patroller and improve their record keeping
• Others may have to amend winter maintenance
contracts
• Adopting a best practice will allow municipalities
to verify that winter patrol is a scheduled activity
that meets certain minimum requirements

Risk Assessment

What is Risk Assessment?
A process to determine if the proposed event:
1. Should proceed
2. Proceed in a modified way
3. Not be allowed to proceed

Why is it important?
• Prevent injury
• Create an awareness of hazards & risks
• Determine if existing controls are adequate
• Determine need to develop new controls
• Prioritize repairs/improvements
• Introduces a “risk management culture”

Times Have Changed
1. New Activities Being Developed
• New unidentified risk
• No safety standards
2. Participants
Communities have changed – what is safe for an
English-speaking, able bodied adult who can read
signs may not be safe for an individual who does not
have a grasp of the English language or who is not
able bodied

3. Resources
Do you have the resources to support the
program?
4. Public Attitude
• High expectations
• Variance in personal responsibility
• Quick to litigate
5. Court Awards
• They‟re getting higher
6. Joint & Several
7. People can be creative
8. Ministry of Labour

Environment Canada
• Ontario Weather Review
• September 2011
“For the most part, Ontarians experienced
beautiful summer weather in September”

PLAYGROUNDS
57

What Happened?
• Strong gust of wind (60 km) picks up 3 bouncy
castles at a Soccer Tournament in Long Island
on June 6, 2011.
• One bouncy castle lifted 40 feet into the air
• 13 Injured

• In July 2006, a bouncy castle, with 30 people
inside it, broke free from its moorings and took
off into the air in a freak gust of wind. It flew 50
feet into the air, turned over, and travelled 150
feet before landing on the ground. The castle
seriously injured 13 people and killed two. An
eye witness described the event thus: “I heard
the snapping of tent pegs and a lot of screaming,
then the inflatable flew up into the air and bodies
were dropping from it. It was just carnage.
There were people everywhere lying on the
ground. Some had been on the inflatable when
it took off, others were hit on the ground.”

TSSA
Permits
• If you are operating the device in Ontario, you need to
follow the procedure set out by the Technical Standards
& Safety Authority (TSSA), which can be found at
www.tssa.org. This procedure requires that you:
1. Obtain an operating license
2. Submit a technical dossier
3. Get your application reviewed by TSSA.
4. Apply for a permit
5. Get the device inspected
6. Have a devise permit and metal device place with a
unique AD number assigned to your inflatable.

TSSA
• These steps take time, so plan well in advance.
Each inflatable requires a separate inspection and
permit; you cannot get a blanket permit. If the
device is already registered and you are a new
owner, you need to go through a change of
ownership process. The change of ownership
process can also be found at www.tssa.org.
Inflatables must also be certified.

Risk Assessment
One little step at a time ……

Due Diligence
• Understand your Duty of Care
• Know Your Governing Legislation
• Incorporate Accepted Best Practices
• Have a System of Inspection
• Create a Process to Effect Repairs
• Perform Required Maintenance
• Document – Inspections, Repairs, Incidents
• Training Staff/Volunteers

Liability
• The most serious on going concern for
municipalities
• Result from negligent acts - can be the most
devastating
• Can be unpredictable in frequency and severity
• Long Tail
71

Long Tail Effect
1. Notice Given – 2 Year Limitation
2. Investigation
3. Liability Assessment
4. Damage Assessment
5. Exchange of Documents
6. Examinations for Discovery
7. Answering Undertakings

8. Mediations – some jurisdictions mandatory
9. Pre-trial
10.Trial
11.Appeal
Time-frame – 5 years (minimum)

74

Costs Incurred
1. Adjusters
2. Lawyers
3. Medical Reports & Assessments
4. Expert – Medical & Non-medical
5. Surveillance
6. Couriers
7. OHIP Subrogation (falls)

8. Costs to Produce Documents
9. Pre-judgment interest
10.Post-judgment interest
11.HST
Legal costs for trials - $25K - $50K/week

Risk + Due Diligence =
Positive Outcome

Frank Cowan Company Risk Management
Centre of Excellence
http://excellence.frankcowan.com

The Frank Cowan Company Risk Management Centre
of Excellence is an online resource created by Frank
Cowan Company to provide you with the information
and tools you need to manage the various risk
issues you face on a daily basis
http://excellence.frankcowan.com

THANK YOU