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How quickly your duty of care can change

  1. 1. How Quickly Your Duty of Care Can Change Gloria Keene, CIP, CRM Risk Analyst Frank Cowan Company Limited
  2. 2. Post Giuliani
  3. 3. The Duty of Care • The Municipal Act, 2001. c 25 • Section 44(1) deals with road maintenance
  4. 4. • 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”
  5. 5. 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,
  6. 6. 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”
  7. 7. • 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”
  8. 8. 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
  9. 9. • 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,
  10. 10. • 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.
  11. 11. 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
  12. 12. • 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
  13. 13. • 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
  14. 14. 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
  15. 15. 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
  16. 16. • 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.”
  17. 17. 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
  18. 18. • 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?
  19. 19. • 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
  20. 20. • 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
  21. 21. • Operations supervisors • Operations diary • Incident/ collision reports • Total materials used • Equipment calibration records
  22. 22. • All documents should be filled out completely and in a consistent format • Keep in mind the following:
  23. 23. DATE • Use a consistent format • What date is 01/02/06 TIME • Military or standard ABBREVIATIONS • Use industry standards • Have an „abbreviations key‟ 23
  24. 24. 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
  25. 25. CONSISTENCY • Everyone in the department must use the same form and document in the same manner • Consistency is crucial! 25
  26. 26. • 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
  27. 27. 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
  28. 28. • 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
  29. 29. 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
  30. 30. 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
  31. 31. • If they are monitoring the road electronically, they should have: • Training • A computer • Access to RWIS station or stations • Access to local weather forecasts
  32. 32. • 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
  33. 33. 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”
  34. 34. 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)
  35. 35. • 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
  36. 36. 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
  37. 37. • 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
  38. 38. 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
  39. 39. 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
  40. 40. 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
  41. 41. 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
  42. 42. 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
  43. 43. 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
  44. 44. 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
  45. 45. 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.
  46. 46. 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
  47. 47. Risk Assessment
  48. 48. 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
  49. 49. 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”
  50. 50. 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
  51. 51. 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
  52. 52. Environment Canada • Ontario Weather Review • September 2011 “For the most part, Ontarians experienced beautiful summer weather in September”
  53. 53. PLAYGROUNDS 57
  54. 54. 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
  55. 55. • 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.”
  56. 56. 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 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.
  57. 57. 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 Inflatables must also be certified.
  58. 58. Risk Assessment One little step at a time ……
  59. 59. 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
  60. 60. 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
  61. 61. 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
  62. 62. 8. Mediations – some jurisdictions mandatory 9. Pre-trial 10.Trial 11.Appeal Time-frame – 5 years (minimum)
  63. 63. 74
  64. 64. Costs Incurred 1. Adjusters 2. Lawyers 3. Medical Reports & Assessments 4. Expert – Medical & Non-medical 5. Surveillance 6. Couriers 7. OHIP Subrogation (falls)
  65. 65. 8. Costs to Produce Documents 9. Pre-judgment interest 10.Post-judgment interest 11.HST Legal costs for trials - $25K - $50K/week
  66. 66. Risk + Due Diligence = Positive Outcome
  67. 67. Frank Cowan Company Risk Management Centre of Excellence
  68. 68. 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
  69. 69. THANK YOU