Facility Forum - Fall 2016 - 23

periodically. They were also not allowed to socialize with one another while on the ice. Mr. Leslie had skated with his son and granddaughter for a few minutes and then left to skate on his own. He testified that, as he was skating, he saw three or four patrollers together near the southwest face-off circle. While he was passing the group one of the patrollers, Michael Kovacs, suddenly skated backwards towards him and he tried to avoid him by skating to his right. The patroller's right shoulder made contact with Mr. Leslie's left shoulder, causing him to fall to the ice. All of the patrollers denied that they were standing in a group and Mr. Kovacs testified that he was skating with the flow when he heard a child's voice behind him. That caused him to stop suddenly and that was when the plaintiff made contact with his shoulder. None of the other patrollers saw the incident and there were no independent witnesses. The plaintiff landed on his left elbow fracturing it. He was provided ice by the staff and was later driven to the hospital by his son. The plaintiff's elbow fracture required open reduction and internal fixation surgery with two pins and a wire to stabilize it. Issues 1. Were the City and/or its patroller liable for the plaintiffs' damages? 2. If so, was the plaintiff, William Leslie, contributorily negligent? Law The City and the patroller, Mr. Kovacs, acknowledged that they were occupiers under the Occupiers' Liability Act, R.S.O. 1990, c. O.2. Under Section 3 it reads as follows: "(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises." The Judge also cited the following: "Section 9 (3) of the Act confirms that the Negligence Act applies with respect to causes of action to which the Act applies." Findings The Judge assessed the evidence provided to him. He considered whether each version has a greater chance of probability. He reviewed the accident report filled out by Mr. Kovacs as well as the notice letter filled out by the plaintiff. The Judge stated in his decision that this incident likely occurred "...when Mr. Kovacs stopped quickly without warning when Mr. Leslie was skating behind him, causing Mr. Leslie to strike him and fall to the ice." The Court's Ruling The Court apportioned liability equally (50/50) between the plaintiff and the patroller. No liability was found on the City in the selection, training or supervision of its patrollers. Mr. Kovacs was found partially responsible for Mr. Leslie by stopping suddenly because such an action was not considered necessary. Mr. Leslie was also found partially negligent because he had prior issues with his knees and "...accepted certain inherent risks in participating in the family fun skate." The plaintiffs' total damages were assessed at $34,664.87 plus costs subject to the 50  per cent reduction for contributory negligence. Later in 2003, a motion was brought forward by the City because they believed the Judge erred by judging on a theory (the sudden stop by the patroller) that was not pleaded in the Action by the plaintiffs. The Judge decided that his original ruling was "unfairly prejudicial to the defendants" and therefore issued an order dismissing the plaintiffs' claims. In 2006, the plaintiffs appealed the motion decision. The appeal court determined that there was "no unfair prejudice to the respondents, because the issue was joined in the pleadings, in the evidence at trial and was the subject of crossexamination." As a result, the order dismissing the appellants' action was set aside and the original trial judgment was restored. Therefore, the original Court decision stands. Lessons Learned This matter involved an unfortunate accident between a patroller and a skater. However the Court was satisfied that the City properly selected, trained and supervised their patrollers at this facility. Therefore, it is important for municipal facilities' management and staff to follow their guidelines and best practices. The Ontario Recreation Facilities Association (ORFA) published an article in October 2013 named "Public Skating: Guidelines and Best Practices." The recommended guidelines include: * The following on ice supervision is recommended: On-Ice Patrol to Skater Ratio ◆ 1 Skate Patrol - 1 to 59 persons ◆ 2 Skate Patrol - 60 to 119 persons ◆ 3 Skate Patrol - 120 to 160 persons * Public skating supervisors should be competent skaters and wear CSA-approved skates and headgear while on the ice * All on-ice supervisors should wear a highly visible safety vest and carry a whistle for control purposes * All on-ice supervisors should be given clear direction as to their expected supervisory responsibilities * No person under the age of 16 should be given the responsibility to solely supervise public skating sessions. However, properly trained individuals under the age of 16 (but over the age of 13) may be permitted to assist in the patrol duties, but only under the direct supervision of a competent person over the age of 16 * Post a skater code of conduct at the arena in areas that are highly visible to staff and the public * Staff should have access to a phone for emergency purposes ■ Len Bennett is a Risk Analyst specializing in claims prevention and mitigation. Len has a B.A. in Economics from McMaster University. He also obtained his Fellow Chartered Insurance Professional (FCIP) designation from the Insurance Institute of Canada as well as his Canadian Risk Management (CRM) designation with the Global Risk Management Institute. FACILITY FORUM | 23

Table of Contents for the Digital Edition of Facility Forum - Fall 2016

Industry Watch
Home Run Baseball Hits a Pedestrian
All Granites are Not the Same
Technically Speaking
Risk Management – City Found Not Liable in Skating Injury
Winterizing Pools
Member Profile – Ross Rankin, RA Centre, Ottawa
Use of Medical Marijuana at Work Poses Challenges for Employers
Health & Safety (PSHSA) – Radon - Bill 11 Updates
ORFA’s Original Energy Consultant Writes Memoirs
The Difference between Residential and Commercial Gas Detectors
Energy Champion – Beyond Measurement
Index of Advertisers
Facility Forum - Fall 2016 - ebelly1
Facility Forum - Fall 2016 - ebelly2
Facility Forum - Fall 2016 - cover1
Facility Forum - Fall 2016 - cover2
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Facility Forum - Fall 2016 - 4
Facility Forum - Fall 2016 - 5
Facility Forum - Fall 2016 - 6
Facility Forum - Fall 2016 - 7
Facility Forum - Fall 2016 - 8
Facility Forum - Fall 2016 - Industry Watch
Facility Forum - Fall 2016 - Home Run Baseball Hits a Pedestrian
Facility Forum - Fall 2016 - 11
Facility Forum - Fall 2016 - 12
Facility Forum - Fall 2016 - 13
Facility Forum - Fall 2016 - All Granites are Not the Same
Facility Forum - Fall 2016 - 15
Facility Forum - Fall 2016 - 16
Facility Forum - Fall 2016 - 17
Facility Forum - Fall 2016 - 18
Facility Forum - Fall 2016 - 19
Facility Forum - Fall 2016 - 20
Facility Forum - Fall 2016 - Technically Speaking
Facility Forum - Fall 2016 - Risk Management – City Found Not Liable in Skating Injury
Facility Forum - Fall 2016 - 23
Facility Forum - Fall 2016 - Winterizing Pools
Facility Forum - Fall 2016 - 25
Facility Forum - Fall 2016 - 26
Facility Forum - Fall 2016 - 27
Facility Forum - Fall 2016 - 28
Facility Forum - Fall 2016 - Member Profile – Ross Rankin, RA Centre, Ottawa
Facility Forum - Fall 2016 - 30
Facility Forum - Fall 2016 - 31
Facility Forum - Fall 2016 - 32
Facility Forum - Fall 2016 - Use of Medical Marijuana at Work Poses Challenges for Employers
Facility Forum - Fall 2016 - Health & Safety (PSHSA) – Radon - Bill 11 Updates
Facility Forum - Fall 2016 - 35
Facility Forum - Fall 2016 - 36
Facility Forum - Fall 2016 - ORFA’s Original Energy Consultant Writes Memoirs
Facility Forum - Fall 2016 - 38
Facility Forum - Fall 2016 - 39
Facility Forum - Fall 2016 - 40
Facility Forum - Fall 2016 - The Difference between Residential and Commercial Gas Detectors
Facility Forum - Fall 2016 - 42
Facility Forum - Fall 2016 - 43
Facility Forum - Fall 2016 - Energy Champion – Beyond Measurement
Facility Forum - Fall 2016 - 45
Facility Forum - Fall 2016 - Index of Advertisers
Facility Forum - Fall 2016 - cover3
Facility Forum - Fall 2016 - cover4
Facility Forum - Fall 2016 - outsert1
Facility Forum - Fall 2016 - outsert2
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Facility Forum - Fall 2016 - outsert4