SlideShare a Scribd company logo
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

More Related Content

Similar to How quickly your duty of care can change

Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode IslandSuperstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
riseagrant
 
Jim Proce - December 2013 Ice Storm Analysis Briefing
Jim Proce - December 2013 Ice Storm Analysis BriefingJim Proce - December 2013 Ice Storm Analysis Briefing
Jim Proce - December 2013 Ice Storm Analysis Briefing
Jim Proce
 
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
Kevin Perry
 
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
Precisely
 
Winter Hazard Control Program Wm Enos
Winter Hazard Control Program Wm EnosWinter Hazard Control Program Wm Enos
Winter Hazard Control Program Wm Enos
Bill Enos
 
Kaiwera Downs Wind Farm Induction presentation Rev 4.ppt
Kaiwera Downs Wind Farm Induction presentation Rev 4.pptKaiwera Downs Wind Farm Induction presentation Rev 4.ppt
Kaiwera Downs Wind Farm Induction presentation Rev 4.ppt
ErselKizilay1
 
2015-2016 Snow Removal Operations
2015-2016 Snow Removal Operations2015-2016 Snow Removal Operations
2015-2016 Snow Removal Operations
Fairfax County
 
Thailand pavement-management-system-tpms-3
Thailand pavement-management-system-tpms-3Thailand pavement-management-system-tpms-3
Thailand pavement-management-system-tpms-3
Priya Krishnan
 
The University of Chicago Snow Plan
The University of Chicago Snow Plan   The University of Chicago Snow Plan
The University of Chicago Snow Plan
Steven L. Frank
 
Snow report jan 2014 1.13.14
Snow report jan 2014 1.13.14Snow report jan 2014 1.13.14
Snow report jan 2014 1.13.14
cityofevanston
 
David Davies
David DaviesDavid Davies
David Davies
Snowsummit
 
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PAHarry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
Michael Hewitt, GISP
 
MDE's Stormwater Permitting Requirements
MDE's Stormwater Permitting RequirementsMDE's Stormwater Permitting Requirements
MDE's Stormwater Permitting Requirements
Triumvirate Environmental
 
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
Fairfax County
 
Eld presentation
Eld presentationEld presentation
Eld presentation
James Minor
 
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South AustraliaMine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
Stephen McKnight
 
Q Services' Profile Brief.pptx
Q Services' Profile Brief.pptxQ Services' Profile Brief.pptx
Q Services' Profile Brief.pptx
drdas7
 
Work zone devices & layouts-training and resources for law enforcement
Work zone devices & layouts-training and resources for law enforcementWork zone devices & layouts-training and resources for law enforcement
Work zone devices & layouts-training and resources for law enforcement
Roel Palmaers
 
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqeNAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
neaejeong
 
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
Kevin Perry
 

Similar to How quickly your duty of care can change (20)

Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode IslandSuperstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
Superstorm Sandy - Impacts and Recovery in Charlestown, Rhode Island
 
Jim Proce - December 2013 Ice Storm Analysis Briefing
Jim Proce - December 2013 Ice Storm Analysis BriefingJim Proce - December 2013 Ice Storm Analysis Briefing
Jim Proce - December 2013 Ice Storm Analysis Briefing
 
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
Chris Wieberg, MDNR, Central Office Permitting Update, Missouri Water Seminar...
 
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
Delivering Efficiency and Customer Satisfaction to Claims and Underwriting wi...
 
Winter Hazard Control Program Wm Enos
Winter Hazard Control Program Wm EnosWinter Hazard Control Program Wm Enos
Winter Hazard Control Program Wm Enos
 
Kaiwera Downs Wind Farm Induction presentation Rev 4.ppt
Kaiwera Downs Wind Farm Induction presentation Rev 4.pptKaiwera Downs Wind Farm Induction presentation Rev 4.ppt
Kaiwera Downs Wind Farm Induction presentation Rev 4.ppt
 
2015-2016 Snow Removal Operations
2015-2016 Snow Removal Operations2015-2016 Snow Removal Operations
2015-2016 Snow Removal Operations
 
Thailand pavement-management-system-tpms-3
Thailand pavement-management-system-tpms-3Thailand pavement-management-system-tpms-3
Thailand pavement-management-system-tpms-3
 
The University of Chicago Snow Plan
The University of Chicago Snow Plan   The University of Chicago Snow Plan
The University of Chicago Snow Plan
 
Snow report jan 2014 1.13.14
Snow report jan 2014 1.13.14Snow report jan 2014 1.13.14
Snow report jan 2014 1.13.14
 
David Davies
David DaviesDavid Davies
David Davies
 
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PAHarry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
Harry E. Coal Waste Pile Reclamation Project in Swoyersville, PA
 
MDE's Stormwater Permitting Requirements
MDE's Stormwater Permitting RequirementsMDE's Stormwater Permitting Requirements
MDE's Stormwater Permitting Requirements
 
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
VDOT - Snowzilla Review and Lessons Learned: Jan 22-29, 2016
 
Eld presentation
Eld presentationEld presentation
Eld presentation
 
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South AustraliaMine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
Mine Haul Road Upgrade Project OZ Minerals Prominent Hill South Australia
 
Q Services' Profile Brief.pptx
Q Services' Profile Brief.pptxQ Services' Profile Brief.pptx
Q Services' Profile Brief.pptx
 
Work zone devices & layouts-training and resources for law enforcement
Work zone devices & layouts-training and resources for law enforcementWork zone devices & layouts-training and resources for law enforcement
Work zone devices & layouts-training and resources for law enforcement
 
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqeNAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
NAV REPORT G5 FINALS.pptxewqewqweqweqweqweqwewqe
 
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
Pendergrass, Gary, GeoEngineers Inc., USEPA Coal Combustion Residuals Rule, I...
 

More from OntarioEast

An alternate viewpoint on council staff relations
An alternate viewpoint on council staff relationsAn alternate viewpoint on council staff relations
An alternate viewpoint on council staff relations
OntarioEast
 
Social media and performance management
Social media and performance managementSocial media and performance management
Social media and performance management
OntarioEast
 
Corridor managment 101
Corridor managment 101Corridor managment 101
Corridor managment 101
OntarioEast
 
We will rock_you_stantec_presentation
We will rock_you_stantec_presentationWe will rock_you_stantec_presentation
We will rock_you_stantec_presentation
OntarioEast
 
We will rock you mnr
We will rock you mnr We will rock you mnr
We will rock you mnr
OntarioEast
 
We will rock you prescott russell
We will rock you   prescott russellWe will rock you   prescott russell
We will rock you prescott russell
OntarioEast
 
Social media in government
Social media in governmentSocial media in government
Social media in government
OntarioEast
 
Fine collection and the provincial offences act oemc 2012
Fine collection and the provincial offences act oemc 2012Fine collection and the provincial offences act oemc 2012
Fine collection and the provincial offences act oemc 2012
OntarioEast
 
Planning for clean water
Planning for clean waterPlanning for clean water
Planning for clean water
OntarioEast
 
Best practices effective grant applications
Best practices    effective grant applicationsBest practices    effective grant applications
Best practices effective grant applications
OntarioEast
 
Developing asset management plans
Developing asset management plans   Developing asset management plans
Developing asset management plans
OntarioEast
 
Where are we growing
Where are we growingWhere are we growing
Where are we growing
OntarioEast
 
Best practices asset management oemc
Best practices   asset management oemcBest practices   asset management oemc
Best practices asset management oemc
OntarioEast
 
Best practice developing communication policies
Best practice   developing communication policies Best practice   developing communication policies
Best practice developing communication policies
OntarioEast
 
Rideau corridor landscape parks canada
Rideau corridor landscape   parks canadaRideau corridor landscape   parks canada
Rideau corridor landscape parks canada
OntarioEast
 
Rideau Corridor Landscape
Rideau Corridor Landscape   Rideau Corridor Landscape
Rideau Corridor Landscape
OntarioEast
 
Provincial planning what's new
Provincial planning   what's newProvincial planning   what's new
Provincial planning what's new
OntarioEast
 
Transit supportive guidelines transit
Transit supportive guidelines   transitTransit supportive guidelines   transit
Transit supportive guidelines transit
OntarioEast
 
Transit supportive guidelines overview
Transit supportive guidelines   overviewTransit supportive guidelines   overview
Transit supportive guidelines overview
OntarioEast
 
Transit supportive guideline transit
Transit supportive guideline   transitTransit supportive guideline   transit
Transit supportive guideline transit
OntarioEast
 

More from OntarioEast (20)

An alternate viewpoint on council staff relations
An alternate viewpoint on council staff relationsAn alternate viewpoint on council staff relations
An alternate viewpoint on council staff relations
 
Social media and performance management
Social media and performance managementSocial media and performance management
Social media and performance management
 
Corridor managment 101
Corridor managment 101Corridor managment 101
Corridor managment 101
 
We will rock_you_stantec_presentation
We will rock_you_stantec_presentationWe will rock_you_stantec_presentation
We will rock_you_stantec_presentation
 
We will rock you mnr
We will rock you mnr We will rock you mnr
We will rock you mnr
 
We will rock you prescott russell
We will rock you   prescott russellWe will rock you   prescott russell
We will rock you prescott russell
 
Social media in government
Social media in governmentSocial media in government
Social media in government
 
Fine collection and the provincial offences act oemc 2012
Fine collection and the provincial offences act oemc 2012Fine collection and the provincial offences act oemc 2012
Fine collection and the provincial offences act oemc 2012
 
Planning for clean water
Planning for clean waterPlanning for clean water
Planning for clean water
 
Best practices effective grant applications
Best practices    effective grant applicationsBest practices    effective grant applications
Best practices effective grant applications
 
Developing asset management plans
Developing asset management plans   Developing asset management plans
Developing asset management plans
 
Where are we growing
Where are we growingWhere are we growing
Where are we growing
 
Best practices asset management oemc
Best practices   asset management oemcBest practices   asset management oemc
Best practices asset management oemc
 
Best practice developing communication policies
Best practice   developing communication policies Best practice   developing communication policies
Best practice developing communication policies
 
Rideau corridor landscape parks canada
Rideau corridor landscape   parks canadaRideau corridor landscape   parks canada
Rideau corridor landscape parks canada
 
Rideau Corridor Landscape
Rideau Corridor Landscape   Rideau Corridor Landscape
Rideau Corridor Landscape
 
Provincial planning what's new
Provincial planning   what's newProvincial planning   what's new
Provincial planning what's new
 
Transit supportive guidelines transit
Transit supportive guidelines   transitTransit supportive guidelines   transit
Transit supportive guidelines transit
 
Transit supportive guidelines overview
Transit supportive guidelines   overviewTransit supportive guidelines   overview
Transit supportive guidelines overview
 
Transit supportive guideline transit
Transit supportive guideline   transitTransit supportive guideline   transit
Transit supportive guideline transit
 

How quickly your duty of care can change

  • 1. How Quickly Your Duty of Care Can Change Gloria Keene, CIP, CRM Risk Analyst Frank Cowan Company Limited
  • 3. The Duty of Care • The Municipal Act, 2001. c 25 • Section 44(1) deals with road maintenance
  • 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. 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. 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. • 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. 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. • 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. • 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. 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. • 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. • 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. 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. 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. • 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. 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. • 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. • 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. • 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. • Operations supervisors • Operations diary • Incident/ collision reports • Total materials used • Equipment calibration records
  • 22. • All documents should be filled out completely and in a consistent format • Keep in mind the following:
  • 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. 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. CONSISTENCY • Everyone in the department must use the same form and document in the same manner • Consistency is crucial! 25
  • 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. 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. • 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. 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. 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. • 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. • 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. 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. 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. • 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. 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. • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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
  • 48.
  • 49. 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
  • 50. 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”
  • 51. 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
  • 52. 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
  • 53.
  • 54. Environment Canada • Ontario Weather Review • September 2011 “For the most part, Ontarians experienced beautiful summer weather in September”
  • 55.
  • 56.
  • 58.
  • 59.
  • 60.
  • 61.
  • 62.
  • 63.
  • 64.
  • 65. 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
  • 66. • 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.”
  • 67. 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.
  • 68. 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.
  • 69. Risk Assessment One little step at a time ……
  • 70. 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
  • 71. 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
  • 72. 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
  • 73. 8. Mediations – some jurisdictions mandatory 9. Pre-trial 10.Trial 11.Appeal Time-frame – 5 years (minimum)
  • 74. 74
  • 75. Costs Incurred 1. Adjusters 2. Lawyers 3. Medical Reports & Assessments 4. Expert – Medical & Non-medical 5. Surveillance 6. Couriers 7. OHIP Subrogation (falls)
  • 76. 8. Costs to Produce Documents 9. Pre-judgment interest 10.Post-judgment interest 11.HST Legal costs for trials - $25K - $50K/week
  • 77. Risk + Due Diligence = Positive Outcome
  • 78. Frank Cowan Company Risk Management Centre of Excellence http://excellence.frankcowan.com
  • 79. 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