Public Sector Liability and Risk Management Issues and Trends

1. CONFERENCE PRESENTS Public Sector Liability and Risk Management Issues and Trends

2. Public Sector Liability and Risk Management Issues and Trends Panel: David Boghosian, Principal, Boghosian + Associates Professional Corporation Peter Makinson, AVP Public Sector, Travelers Roman Parzei, Senior Manager, Investments, Insurance and Risk Management City of Brampton

3. Topics Presentation by: Roman Parzei, Senior Manager, Investments, Insurance and Risk Management City of Brampton Minimum Maintenance Standards - Roads • Sidewalks • Winter • Documentation Transit - Accident Benefits - Recommendation #37

4. Pre - Minimum Maintenance Standards Under subsection 44 (3) of the Municipal Act, 2001 a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if: • a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge; or • b) it took reasonable steps to prevent the default from arising;

5. Minimum Maintenance Standards Under subsection 44 (3) of the Municipal Act, 2001 a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if: • a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge; or • 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 44(4) of the Municipal Act applied to the highway or bridge and to the alleged default and those standards have been met.

6. Minimum Maintenance Standards • The minimum maintenance standards were developed to provide municipalities with a defence against liability from actions arising with regard to levels of care on roads and bridges. • Regulation 239/02, which came into force on November 1, 2002, contains the minimum maintenance standards. • Covers the following: routine patrolling, snow accumulation, icy roadways, potholes, shoulder drop-offs, debris, luminaries, signs, traffic control signal systems, bridge deck • No mention of winter patrolling, out-of season icing, night time patrolling, water on roadway, sidewalks and pedestrians on the road • They are not construction or design standards, or best practices, or sufficient to protect infrastructure from deterioration

7. Minimum Maintenance Standards Task Force Recommendation to amend Regulation 239/02 • Snow Accumulation • 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,

8. Minimum Maintenance Standards Task Force Recommendation to amend Regulation 239/02 • Regulatory or Warning Signs • The minimum standard for the frequency of inspecting regulatory signs or warning signs to check to see that they meet the retro-reflectivity requirements of the Ontario Traffic Manual is once per year. • If a regulatory sign or warning sign is illegible, improperly oriented, obscured or missing, the minimum standard is to repair or replace the sign within the time set out in the Table to this section after becoming aware of the fact.

9. Minimum Maintenance Standards Task Force Recommendation to amend Regulation 239/02 Sidewalk Surface Discontinuities • The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuity is once per year. • If a surface discontinuity on a sidewalk exceeds 2 cm, the minimum standard is to treat the surface discontinuity within 14 days after becoming aware of the fact.

10. Minimum Maintenance StandardsDocumentation • Municipality has to keep good records to be able to prove compliance with the Regulations • Patrolling standard is critical to be able to prove compliance with the Regulations • Policies and procedures in line with the Standards • Checklists or forms recording regular equipment, road and site inspections • A consistent and uniform approach • On-going training is necessary to ensure proper record keeping and documentation

11. Minimum Maintenance StandardsDocumentation • Documentation Pitfalls : • - Incomplete, • - Inaccurate, • - Unclear, • - Information/Details Missing, • - Reports/Documentation Unavailable

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13. Transit – Accident Benefits • On March 31, 2009 FSCO released its report, “Report on the Five Year Review of Automobile Insurance” that summarizes the issues and concerns and includes approximately 39 recommendations aimed at improving the effectiveness and administration of the automobile insurance system. • One recommendation that is of great interest to all Ontario municipalities that operate a transit system is Recommendation # 37. • Recommendation #37:The government should consider legislative amendments to reflect the unique status of public transit services operated by municipal authorities by excluding injuries from no-fault where no collision has occurred.

14. Transit – Accident Benefits • Injuries are often not reported at the time of the incident but days or weeks later, and without the driver having any knowledge of the incident. • Transit authorities must accept these claims in good faith because it is often impossible to even verify whether the claimant was a passenger of the vehicle. • Municipal transit authorities have reported a rapidly increasing utilization of assessments and attendant care benefits. • One transit authority reported that 73% of claims do not involve an actual collision. These claims are for injuries resulting from bumps and falls while entering and leaving vehicles, standing in aisles, and getting in and out of seats.

15. Transit – Accident Benefits • FSCO agrees that public transit services operated by municipal authorities should be provided with additional protections that reflect their unique status. • Injuries sustained on public transit vehicles involving collisions should continue to be covered under the auto insurance legislation. • However, all other injuries should fall under a general liability insurance policy. • Recommendation #37: The government should consider legislative amendments to reflect the unique status of public transit services operated by municipal authorities by excluding injuries from no-fault where no collision has occurred.

16. Transit – Accident Benefits Average auto insurance premiums in 2008 Average accident benefit claims in 2008 in six Provinces with privately run auto insurance

17. Transit – Accident Benefits

18. Thank you Roman Parzei, Senior Manager, Investments, Insurance and Risk Management Finance Department, City of Brampton

19. THANK YOU FOR ATTENDING THE CONFERENCE ENJOY THE REST OF YOUR CONFERENCE!