How quickly your duty of care can change

How Quickly Your Duty of Care

Can Change

Gloria Keene, CIP, CRM

Risk Analyst

Frank Cowan Company Limited

Post Giuliani

• The Municipal Act, 2001. c 25

• Section 44(1) deals with road maintenance

The Duty of Care

• 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

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

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

• 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

• 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:

23

DATE

• Use a consistent format

• What date is 01/02/06

TIME

• Military or standard

ABBREVIATIONS

• Use industry standards

• Have an „abbreviations key‟

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

25

CONSISTENCY

• Everyone in the department must use the

same form and document in the same

manner

• Consistency is crucial!

• 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

• 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

Patrolling

Winter Patrol Record

Weather Date:

Clear Time

Partly Cloudy Time Patrolled by:

Overcast Time

Rain Time Hours of Work start shift: ________ finish shift: ________ Snow Time

Freezing Rain Time Approved by:

Fog Time

Visibility: Good Fair Poor Time

Wind Light Moderate Strong Direction_____

Route of Representative Roads

Kilo

metr

es P

atr

olle

d

Ma

inte

nance C

lass

Air T

em

pera

ture

Pavem

ent T

em

pera

ture

Road Condition between winter events

Road Condition during a winter event

Additional Service

Required

Notes

Bare

& D

ry

Bare

& W

et

Part

ially

Snow

Covere

d

Part

ially

Snow

Packed

Part

ially

Ice

Covere

d

Snow

Covere

d

Snow

Packed

1 2 3 Yes No Street Name Time From To Time

Condition Codes

Needs Service √ conditions meet standard

Time to be recorded using a 24 hour clock

Collision/Damage Time

Police Response yes no Police Report #

Location

Description

• 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”

57

PLAYGROUNDS

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

71

• 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

Liability

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

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