In Canada, the responsibility to guard against a slip and fall generally lies, at first instance, with the occupier of a premises. Just who is an occupier will depend on the facts of each particular circumstance – owners, leasers, tenants, property management companies, etc., all might be considered to be an occupier under occupier’s liability legislation in Canada. There can be more than one occupier of a premises.

Winter maintenance contractors in Canada must understand their client will generally be an occupier of the premises to which they provide services. This is significant because, under the law of premises liability, the responsibility to manage the risk of a slip and fall starts with the occupier.

The occupier has the responsibility to monitor the condition of the premises and take whatever steps are necessary to protect against a slip and fall or other harm. While the occupier may retain contractors to perform some of these tasks on his behalf, it should be understood that the contractor does not, by simply agreeing to do so, generally assume any obligations beyond those which are expressly or by implication assumed under his contract.

BE CLEAR
The terms and conditions of a winter maintenance contract are extremely im- portant. If it is not clear what work the con-tractor is to perform under his contract, for example, it will be difficult for a court or insurance company to determine whether the contractor properly performed that work. Such ambiguity can lead to the contractor being found liable where he believes he has done nothing wrong.

On the other hand, if the contract properly describes the scope of work, the contractor should only be liable for breach of contract if he fails to perform that work in accordance with the contractual terms. (The contractor might also be found liable in negligence, of course, independently of the contractual obligations. This can occur, for example, where the contractor becomes aware of a clear and obvious danger but fails to remove the hazard or warn the occupier, or where he creates a clear and obvious danger through activities unrelated to his contract.) Winter maintenance contractors are generally willing to accept this risk. They will assume responsibility for the consequences of their own breaches of contract or negligence.

The lessons to be learned, when we turn to a discussion of contractual terms and conditions, include the following:

•     contractual terms and conditions should be specifically tailored to the snow and ice maintenance industry;

•     the contract should specify which of the parties is responsible to determine when and where ice melting products will be applied;

•     the scope of work under the contract should be fully and accurately described; and

•     the contractor should not agree to indemnification or “hold-harmless” pro-visions which hold the contractor liable for a slip and fall regardless of whether or not the work is properly performed under the contract.

STRATEGIC DOCUMENTATION
Having a good contract in place, however, will not assist the contractor unless, when a dispute occurs, he is in a position to show that he performed the work in accordance with the contract. It is therefore suggested that winter maintenance contractors should also:

•     prepare and engage a reasonable system to meet their contractual obligations under the contracts, and

•     keep good records in order that they are able to prove, if necessary, that a reasonable system was in place and properly followed such that their contractual obligations were met.

A good contract will be very clear in determining who has the responsibility to make the call with respect to how and when ice melting products will be applied. As this responsibility generally lies with the client unless it is transferred to the contractor, the contract should properly and accurately detail the extent to which the contractor is assuming this responsibility. There should be absolutely no vagueness or ambiguity in this regard.

One recommended way to address this issue is to allow the client to make a choice. On the one hand, the client can retain the sole responsibility to determine if and when ice melting products should be applied to the premises. On the other hand, the client can give full discretion to the contractor to monitor the weather in the vicinity of the premises and apply ice melting products as he believes is appropriate. In this latter circumstance, there should be no question that the contractor will be paid for whatever products he decides to apply.

If the client elects to retain the sole responsibility to determine if and when the contractor is to apply ice melting products to the premises, that decision should be made clear in the contract. The contract should generally only require the contractor to respond to such a request within a reasonable period of time and should not guarantee or imply that the contractor will be able to perform extras within any given time frame unless the contractor is being paid to be on-call in that regard. Contractors who are concerned that they may not be able to meet the client’s needs upon a request, should advise the client of that fact immediately and should follow up with a written confirmation.

Where the client retains the responsibility to make the call as to when ice melting products are to be applied, the contractor should consider terms and conditions which:

•     confirm that the client retains the sole responsibility to monitor the weather conditions in the vicinity of the premises;

•     confirm that the client retains the sole responsibility to monitor the condition of the premises with respect to snow and ice;

•     confirm that the contractor will not be responsible for the failure to provide ice melting products to the premises in any particular circumstance; and

•     provide that the client will indemnify and hold harmless the contractor for any claims relating to a failure to apply ice melting products in any particular circumstance.

Where the client transfers to the contractor the responsibility to make the call as to when ice melting products are to be applied at the premises, the client should be obliged to pay for whatever ice melting products the contractor decides to apply. The situation where the contractor assumes the risk of the slip and fall, while at the same time allows the client to restrict his ability to apply ice melting products in managing that risk, is to be avoided.

A contractor who assumes, without qualification, the responsibility to decide when to apply ice melting products to a premises must be prepared to engage a reasonable system to meet this responsibility, complete with inspections, on a 24-hour basis. If the contractor only intends to inspect, clear snow or apply melting products at certain times or in certain circumstances, the contract should say so. The contract can then allow the client to request the performance of additional work. This will put an onus on the client to do his own inspections and will allow the contractor to know exactly what he needs to do to meet his obligations under the contract.

SPECIFIC, NOT GENERAL
A detailed and accurate description of the work, for each location, will help ensure that contractors do not unwittingly assume more contractual obligations than intended. Contract terms such as “salt as required,” should be avoided as these leave open the question: “required to do what?” Contractors should also avoid promising the impos-sible. Contract terms which provide that the contractor will “keep the premises free of snow and ice at all times,” or “will ensure that the driveways are cleared by 8 a.m.,” should be avoided. Rather, contracts should recognize that the application of salt will not instantly result in the elimination of ice and that a contractor requires a reasonable period of time to perform his services once conditions require that he commence work.

The description of the contractor’s work is a critical part of a winter maintenance contract. A good contract will generally include a site map of the premises where the work to be performed can be described in detail. Further written specifications should also be attached if the written specifications cannot be fully incorporated into the drawings.

To assist the contractor in preparing the drawings and specifications, it is helpful if the contract includes definitions for the tasks generally performed by the contractor. The contractor should use the defined terms to describe the work in the drawings and specifications. By becoming familiar with the use of these terms over time, the contractor will most likely find it easier to describe his work on a contract-by-contract basis.

BEWARE THE CLAUSE
Clients will often ask contractors to agree to “hold-harmless and indemnify” the client from claims relating to a slip and fall. Some of these clauses can be very broad: some contracts can be interpreted to require the contractor to indemnify for slip and falls which occur inside the premises. Hold harmless and indemnity clauses often require the contractor to provide something for which he is not being paid. Contractors should be wary of these clauses and review them with a lawyer if they have any concerns.

From the contractor’s perspective, these clauses should be drafted so that the indemnity generally only applies if the contractor is either negligent or fails to perform his work in accordance with the contract. Going beyond this is to agree to be liable for events over which the contractor has no control and for which the contractor is not being paid.

It is also suggested that the client should be required to give timely notice of a potential slip and fall claim so that the contractor has the opportunity to put its insurer on notice of the claim. It is suggested that notice within 48 hours of knowledge of the claim is a reasonable notice period.

In addition, contractors should speci-fically exclude responsibilities for circum-stances beyond their control, for areas not included in the contract and for areas which are in disrepair such that the likelihood of a slip and fall increases.

SUCCESS WITH SYSTEMS
Regardless of the responsibilities assumed by the contractor, the contractor should be prepared to install a reasonable system and policies to meet them. These systems and policies should be in writing and it is recommended that employees and subcontractors sign off on the system and policies prior to each season of work.

What will constitute a reasonable system will vary in the circumstances. It is suggested, however, that a reasonable system will:

•     provide for regular inspections of the premises (how regular will depend on what obligations have been assumed by the contractor);

•     pay special attention to known problem areas;

•     provide for the blocking off of particularly dangerous areas until they are safe;

•     anticipate water run-off from gutters or neighbouring property; and

•     involve special procedures to deal with spring freeze and thaw cycles.

WRITE IT DOWN
Finally, the contractor should keep de-tailed and accurate records of the work performed. In this way the contractor will be in a position to show that he has performed his contractual scope of work. The records should, at a minimum, describe who attended the site, when work was performed, what work was performed and where the work was performed. A prudent contractor would also have records of the training he has provided to his workers, to assist him in showing that the work was done properly. These training records would preferably speak to how particular problem areas of a site would be dealt with. Again, having the workers sign off on a job description and work policy, after training, is worthwhile. In addition, having records of how the contractor has monitored his employees or subcontractors to ensure the work was being properly performed can assist the contractor to show that a reasonable system was in place.

Robert Kennaley practices construction law in Toronto. He speaks and writes regularly on winter maintenance issues and assists clients across North America in the drafting of contracts. He can be reached for comment at (416) 368-2522. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice.