Facility Forum - Fall 2017 - 31

not enter into a written agreement with
the municipality.
The municipality will be considered
the occupier of this community centre
and surrounding premises as per the
Occupiers' Liability Act, R.S.O. 1990, c. O.2,
at the time of this incident.
The applicable sections of this Act read
as follows:
3. (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.
Our investigation determined that the
area had about 10 cm of snowfall by the
morning of the date of this incident. That
snow was expected to melt by the evening
because of temperatures were supposed
to get above zero Celsius. The municipality did not receive any complaints about
the parking lot before this fall took place.
A municipal staff worker had inspected
the outside premises just before this incident took place. The walkway and the
stairs were considered slippery because
the temperature was dropping. He then put
salt down on the walkway and the stairs.
Soon after he did this, another staff worker
advised that the slip and fall took place.
The municipal workers at the community centre are responsible to inspect
the premises, but we have found out that
the inspections don't include the parking
lot. The inspection forms received by our
claims examiner confirmed that. They
rely on the contractor for this service.
The snow contractor told our independent adjuster that they did not attend the
parking lot that night because they were
anticipating the temperature to rise during the evening. They did provide records
showing that they plowed the parking lot
between 7 and 8 p.m. and salted the parking lot at 9 p.m. on the morning of the
loss date.

Outcome
If this matter went to trial, the court
will likely determine that the municipality

did not keep its parking lot in a reasonable state of repair at the time of this
slip and fall incident. It will be difficult
for the municipality to escape liability
because they left the inspection and
maintenance duties of their parking lot to
an outside party, without the protection
of a properly drafted written agreement.
That agreement should have detailed the
winter maintenance operations in the
parking lot.
The agreement should also include
an indemnification and hold harmless
clause in favour of the municipality. In
addition, there should be a clause in
it stating that the contractor's liability
insurer need to add the municipality as
an additional insured on their policy. We
confirmed in the Contractor Insurer's
Certificate of Insurance that they did not
name the municipality as an additional
insured on their policy.
Therefore the municipality will be held
responsible for the damages claimed by
the injured person.

In Conclusion
It is important when contracting out
services that the organization has a
properly drafted agreement with the
service contractor. This will enable the
transferring of liability to the contractor. This is explained in our article: Risk
Management Considerations - Know What
You Are Signing that is found in our Risk
Management Centre of Excellence online portal:
"A contractual transfer of liability is an agreement under which one
party (the Transferor) shifts to another
(the Transferee) the loss exposures
associated with an asset or activity.
Organizations are quite often involved
on both sides of such a transfer quite
often, such as lease or rental agreements, building construction projects
and contracted services. Regardless of
which side of the transfer your organization is on, the contractual requirements should be reasonable under the
circumstances.
Every contractual transfer of liability
should:
1. Clearly state the responsibilities of
each party
2. Ensure the transfer recipient is willing
and able to handle the transfer and

have control over the extent of the
potential losses
3. Be cost effective
4. Be legally enforceable
5. Be reviewed by legal counsel
The method of transferring liability
can be accomplished through the use
of hold harmless or indemnification
clauses, as well as through the use
of waivers, releases and disclaimers
within the contract. An indemnity
clause is only as good as the guarantee,
which is why whenever possible, such a
clause should be followed by a request
for insurance.
The transferor should be satisfied that
the transferee has the following:
1. Financial strength
2. Sufficient limits of coverage
3. Added the transferor as an additional
insured
4. Current coverage
5. No coverage restrictions that would
affect the scope of their agreement
The article concludes by stating:
"Always transfer liability to the responsible party when possible to avoid being
involved in a claim over which your organization has little or no control of the
circumstances. It is very important to
carefully review all agreements, paying
particular attention to who is assuming
the risk and liabilities. It is always a good
idea to obtain a legal opinion before you
sign. Any legal fees incurred prior to signing a contract will likely be far less than
the cost of resolving disputes following
a claim."
There is no guarantee that a properly
written agreement will prevent claims
being made against the organization,
but it will help in passing them on to the
responsible party involved.
■
Len Bennett is a Risk Analyst specializing
in claims prevention and mitigation for the
Frank Cowan Company. Bennett has a bachelor's degree 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. Contact
him at len.bennett@frankcowan.com,
1-800-265-4000 ext. 55233 or on his cell
at 519-420-8224.
FACILITY FORUM | 31



Table of Contents for the Digital Edition of Facility Forum - Fall 2017

ORFA Regional Training
Heritage Highlight: Varsity Arena – University of Toronto
Cemeterian: The Operation and Preservation of Cemeteries in Ontario and the Importance of Cemetery Care and Maintenance Trust Fund/Accounts
Technical Support Renewed
ORFA Professional Designations
Energy Champion – Taking Action
Providing Safe Access to IHSC Cooling Towers/Evaporative Condensers
Electrical Hazards: The Importance of Lock-Out/Tag-Out
Slip and Fall Outside of a Community Centre
Winds of Change
Recreation Facilities Asset Management
Member Profile – Kevin Gale, CIT, RRFS Town of Bradford West Gwillimbury
Safe Ice Resurfacer Operations Online
ACC Facility Post-Season Scheduling Challenges
Index of Advertisers
Facility Forum - Fall 2017 - Intro
Facility Forum - Fall 2017 - cover1
Facility Forum - Fall 2017 - cover2
Facility Forum - Fall 2017 - 3
Facility Forum - Fall 2017 - 4
Facility Forum - Fall 2017 - 5
Facility Forum - Fall 2017 - 6
Facility Forum - Fall 2017 - ORFA Regional Training
Facility Forum - Fall 2017 - Heritage Highlight: Varsity Arena – University of Toronto
Facility Forum - Fall 2017 - 9
Facility Forum - Fall 2017 - 10
Facility Forum - Fall 2017 - 11
Facility Forum - Fall 2017 - 12
Facility Forum - Fall 2017 - Cemeterian: The Operation and Preservation of Cemeteries in Ontario and the Importance of Cemetery Care and Maintenance Trust Fund/Accounts
Facility Forum - Fall 2017 - 14
Facility Forum - Fall 2017 - 15
Facility Forum - Fall 2017 - Technical Support Renewed
Facility Forum - Fall 2017 - 17
Facility Forum - Fall 2017 - ORFA Professional Designations
Facility Forum - Fall 2017 - Energy Champion – Taking Action
Facility Forum - Fall 2017 - 20
Facility Forum - Fall 2017 - 21
Facility Forum - Fall 2017 - Providing Safe Access to IHSC Cooling Towers/Evaporative Condensers
Facility Forum - Fall 2017 - 23
Facility Forum - Fall 2017 - 24
Facility Forum - Fall 2017 - Electrical Hazards: The Importance of Lock-Out/Tag-Out
Facility Forum - Fall 2017 - 26
Facility Forum - Fall 2017 - 27
Facility Forum - Fall 2017 - 28
Facility Forum - Fall 2017 - Slip and Fall Outside of a Community Centre
Facility Forum - Fall 2017 - 30
Facility Forum - Fall 2017 - 31
Facility Forum - Fall 2017 - 32
Facility Forum - Fall 2017 - Winds of Change
Facility Forum - Fall 2017 - 34
Facility Forum - Fall 2017 - 35
Facility Forum - Fall 2017 - Recreation Facilities Asset Management
Facility Forum - Fall 2017 - Member Profile – Kevin Gale, CIT, RRFS Town of Bradford West Gwillimbury
Facility Forum - Fall 2017 - 38
Facility Forum - Fall 2017 - 39
Facility Forum - Fall 2017 - Safe Ice Resurfacer Operations Online
Facility Forum - Fall 2017 - ACC Facility Post-Season Scheduling Challenges
Facility Forum - Fall 2017 - 42
Facility Forum - Fall 2017 - 43
Facility Forum - Fall 2017 - 44
Facility Forum - Fall 2017 - Index of Advertisers
Facility Forum - Fall 2017 - 46
Facility Forum - Fall 2017 - cover3
Facility Forum - Fall 2017 - cover4
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