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April 12, 2012 Municipalities and Occupiers Liability: Principles and Preventative Practices James H. Goulden of Bull Housser.

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Presentation on theme: "April 12, 2012 Municipalities and Occupiers Liability: Principles and Preventative Practices James H. Goulden of Bull Housser."— Presentation transcript:

1 April 12, 2012 Municipalities and Occupiers Liability: Principles and Preventative Practices James H. Goulden of Bull Housser

2 Occupiers Liability - Principles Statutory duty of care for persons in control of property Must take reasonable steps to prevent damage to persons or their property Duty is to ensure premises is “reasonably safe” for those using it 2

3 General Principles Public law principles of negligence apply to occupiers liability claims against municipalities Limited immunity for pure “policy” decisions “Operational” decisions may attract liability Documentation of policy execution critical 3

4 Who is an “Occupier”? Section 1: any person who has responsibility for, and control over: (i) the condition of the premises; (ii) the activities conducted on the premises; and (iii) the persons allowed to enter those premises May be more than one occupier 4

5 What are “Premises”? Defined in s. 1 of the Act to include lands and structures, including portable structures such as trailers used for residence, business or shelter Applies to not only structures on land, but to water and movable structures including ships, trains and streetcars 5

6 When does the Duty Apply? Duty concerns both safety of the visitor and any property brought onto premises Applies to “activities” conducted on premises that result in injury, damage 6

7 Damage caused by Chattels Case law inconsistent on damage caused by chattels or moveable property: No statutory duty in case of collapsed chair in bingo hall No duty when plaintiff fell from ladder when repairing friend’s roof But duty held to apply when Wal-Mart employee fell from a ladder 7

8 Actions of Third Parties Occupier liable for actions of third parties lawfully present on premises Liability established if occupier knew or ought to have known third party posed danger Example: Jacobson v. Kinsmen Club, 1976 BCJ No. 343, plaintiff injured by drunken patron climbing on cross beams at beer garden 8

9 Scope of Liability Standard of care is reasonableness, not perfection Occupier is not an insurer No presumption of liability when an accident happens Section 3: occupier must take reasonable care to ensure that those using the premises are reasonably safe 9

10 Duddle v. Vernon, 2004 BCCA 390 Plaintiff was rendered a quadriplegic when he dove into shallow water from the City’s pier at Kalamalka Lake City had placed numerous signs prohibiting diving and warning of the shallow water Plaintiff had used the pier and swam in the area numerous times in the past 10

11 Duddle v. Vernon... Plaintiff argued that there were further steps the City could have taken – e.g. signs could indicate actual water depth, guardrails could be installed Court found that City was not required “to do all they could have done” to prevent the accident City had taken reasonable care In addition, City could not be held liable for failing to warn the Plaintiff of dangers of which he was already aware 11

12 Prior History of Premises Previous safe usage or a history of accidents is relevant to standard of care Damages must be reasonably foreseeable for liability No liability for unforeseeable incidents 12

13 Prior History of Premises Vital to have documentation Eg. In Geraghty v. Port Coquitlam (City), 2005 BCJ No. 495, Plaintiff was injured in municipal swimming pool Two lifeguards testified they had never witness a collision before Court gave little weight to this evidence because the City had not maintained any records of accidents, safety violations, etc. 13

14 Prior History of Premises Liability may still be imposed if occupier has untarnished safety record E.g. Bilawchuk v. Prince George, 1998 BCJ No. 2934, hockey player injured wrist on boards Court determined that the fact that a similar accident had not occurred was “a reflection of chance, not good management” 14

15 History of Past Incidents Past incidents do not mean occupier is presently liable Eg. Redman v. Saanich, 2004 BCJ No. 2196 – Plaintiff was injured when exercise ball he was using burst Balls had burst or malfunctioned on three prior occasions at other facilities and Saanich facility was likely aware Court still found the standard of care was met: inspection policy followed, balls properly stored, etc. 15

16 Inspection, Maintenance Policies Decisions by government bodies constrained by many factors Policy decisions reflect budgetary considerations involving allocation of resources Local governments generally not liable where it follows such policies Unless the policy is unreasonable in light of all the circumstances 16

17 Inspection, Maintenance Policies Municipalities must prove their policy was carried out E.g. Ross v. Vernon, 2009 BCSC 1378 Plaintiff slipped, fell and was injured on walkway in municipal park City employed contractor to take care of maintenance 17

18 Ross v. Vernon... Walkway encircled a pond inhabited by wild ducks and geese Plaintiff slipped on bird droppings No liability Inspection and maintenance policies were reasonable Court found the person responsible for maintenance was credible and believed his testimony that he had washed the walkway earlier that day 18

19 Willing Assumption of Risk, Contributory Negligence Section 3(3): Where risks willingly assumed, lower standard applies Occupier must not: Create a danger with an intent to harm Act with reckless disregard to the safety of others Damages may be reduced due by contributory negligence by plaintiff 19

20 Willing Assumption of Risk, Contributory Negligence Amerato v. Nanaimo (City), 2006 BCSC 1771 Plaintiff suffered injury while roller-skating in municipal arena Fell when roller skate came into contact with Skittles candy that had been dropped Evidence was that Plaintiff was aware there were Skittles on the ground Court found Plaintiff was negligent in exposing herself to danger 20

21 Warning Signs Important to have signage marking any hazards E.g. In Duddle v. Vernon, the City had posted signs prohibiting diving and warning of shallow water The Plaintiff argued that the City should have posted signs indicating the actual depth Court decided City’s signs were reasonable 21

22 Lovely v. Kamloops, 2009 BCSC 1359 In Lovely v. Kamloops, plaintiff fell 8 feet from a transfer station platform while putting refuse in bin The municipality had posted warning signs, but they were not posted on the transfer station platforms Signs did not warn customers that there was a risk they could fall from platform to ground below Liability apportioned 55% to City; 35% to designers of transfer station; and 10% to plaintiff 22

23 Municipal Roads Section 8 of the Act exempts municipalities from statutory duty of care for public roads Municipalities may still be liable in negligence Court will examine whether policy reasonable in the circumstances including budgetary considerations 23

24 Aberdeen v. Township of Langley et al., 2008 BCCA 420 Plaintiff was seriously injured while cycling on a municipal road Road was a designated bicycle route The Plaintiff was forced onto the shoulder by an oncoming vehicle, struck a guardrail and was propelled through a gap and down an embankment Court found City owed a duty of care that the roadways were reasonably safe for the purposes of travel 24

25 Aberdeen v. Township of Langley In this case, Langley could not rely on line of cases limiting municipality’s liability when there were reasonable inspection and maintenance policies in place Those cases deal with hazards created by others, or by weather, or by wear and tear In this case, the municipality had created the hazard (the gap) 25

26 Sidewalks The Occupiers Liability Act applies to sidewalks Courts will still consider whether there was a reasonable policy in place that was followed E.g. Beadle v. Nanaimo 2009 BCSC 1506 - plaintiff tripped over uneven pavement City had policy of sidewalk inspection in place Court concluded policy was result of “manpower constraints”, liability not imposed 26

27 Sidewalks Local governments must promptly respond to known problem areas: Garcha v. New Westminster, 2005 BCJ No. 1922 Slip and fall incident occurred on a street that was 4 th highest priority for ice removal However, City knew of drainage issues in the area, melted ice there before City liable 27

28 Sidewalks In Knodell v. New Westminster, 2005 BCJ No. 2026, the same municipality escaped liability for a slip and fall Ice formed on sidewalk due to water from overhead Skytrain guideway No evidence that the City knew about the ice or that it was a problem area City therefore not liable 28

29 Recreational Trails Section 3 of the Act provides a lower standard of care for recreational trails Trail users accept certain inherent risks Liability will only be imposed if the occupier: (ii) creates a danger with an intent to harm; or (ii) acts with reckless disregard for others’ safety 29

30 Recreational Trails Occupiers of recreational trials are responsible to conduct repairs and take reasonable care But lower standard means occupier must only act if failure to do so will likely result in harm Appropriate warning signage should be posted as necessary 30

31 Ferris v. Greater Vancouver, 2002 BCSC 215 Plaintiff fell and was injured while rollerblading in Seymour Demonstration Forest Would have required a “standard of perfection” to expect road would be completely free of gravel and small rocks No hidden or unusual dangers Warning signs posted No liability either in negligence or under Occupier’s Liability Act 31

32 Exclusion of Liability Section 4 of the Act codifies the common law right of owners or occupiers of property to “contract out” of liabilities Indemnities, exclusion clauses and/or waivers should be included in local governments’ contracts with third parties over civic property 32

33 Exclusion of Liability Special care must be taken to draw the other party’s attention to such clauses To rely on an indemnity or hold-harmless clause, defendant’s negligence cannot be proximate cause of damage Licensing and lease agreements should give tenant responsibility / control over premises 33

34 Overview of Precautionary Practices 1) Establish policies for inspection / maintenance with specific criteria 2) Conduct inspections in systematic way 3) Policies should reflect budgetary, economic and other considerations e.g. availability of equipment / personnel 4) Employees should follow policies closely 34

35 Overview of Precautionary Practices 5) Accidents and safety concerns should be recorded, along with action taken in response 6) Organized records on the execution of all policies should be kept all inspections, repairs and related activities 7) Where City learns of a specific danger, respond promptly 35

36 Overview of Precautionary Practices 8) Post well-positioned and clear signs warning of hazards and associated prohibitions, regulations, etc. 9) In contracts, other parties should assume control over property where possible 10) Include indemnities, releases and/or waivers in municipal property contracts 36

37 Conclusion The broad scope of liability for municipalities poses significant challenges To minimize liabilities, municipalities must: Understand statutory and common law duties; and Implement proactive practices aimed at reducing exposure to risk 37

38 April 12, 2012 ISSUES IN FINANCE Presented By: Kathleen Higgins

39 OVERVIEW (1) Borrowing & liabilities (2) Limits on providing assistance to business (3) Publication of intention to provide certain kinds of assistance to a person or organization


41 INTRODUCTION Municipalities are subject to significant limitations as regards their authority to borrow and incur liabilities These limitations are set out in: The Community Charter (the “Charter”); The Municipal Liabilities Regulation (the “MLR”); and The Approval of the Electors Exemption Regulation Regional districts are also subject to limitations as regards their authority to borrow and incur liabilities These limitations are set out in the Local Government Act (the “LGA”)

42 LIMIT ON BORROWING AND OTHER LIABILITIES A municipality may only incur liability as expressly authorized under the Charter or another Act A municipality may not incur a liability if incurring the liability would cause the limit to exceed a limit established by regulation unless it is approved by the Inspector of Municipalities


44 LIABILITIES UNDER AGREEMENTS A municipality or regional district may incur a liability under an agreement if: The liability is not a debenture debt; and The period of the liability is not longer than the reasonable life expectancy of the activity, work or service under the agreement

45 LIABILITIES UNDER AGREEMENTS If an agreement is for more than 5 years or for a period that could exceed 5 years by exercising rights of renewal or extension, the municipality or regional district may only incur liability with the approval of the electors The matter put before the electors must identify: The parties to the agreement; The nature of the liability; The term of the liability; and The amount of the liability

46 LIABILITIES UNDER AGREEMENTS Approval of the electors is not required if one of the following is true: 1.The liability is incurred under an employment contract or collective agreement; 2.The liability is incurred for the supply of materials, equipment or services under an agreement referred to in s.3 of the Police Act;

47 LIABILITIES UNDER AGREEMENTS 3.If the concept for the partnering agreement which contains the liability has been approved by the electors within the 5 year period prior to the date of the agreement and the agreement is in accordance with that concept Under s. 175(6), the identity of the partner need not be known or disclosed as part of the partnering concept, only the nature of the activity, work or facility, the maximum term, the maximum liability incurred under the agreement and any other information required by regulation

48 LIABILITIES UNDER AGREEMENTS 4.The liability forms part of a long-term agreement under which a municipality or regional district acquires an interest or right in or with respect to land and the liability is: a)an obligation that the municipality or regional district maintain the land; and/or b)an obligation that the municipality or regional district indemnify the grantor of the interest or right being acquired by the municipality or regional district, as the case may be.

49 LIABILITIES UNDER AGREEMENTS 5.The liability is not of a “capital nature” (whether or not it is or includes a contingent commitment); 6.The liability is not a loan guarantee given by a municipality; 7.At the time the municipality proposes to incur the liability: a) the annual cost of servicing the aggregate liabilities of the municipality for the year does not exceed 5% of the annual calculation revenue of the municipality for the previous year; and b)incurring the liability would not cause the annual cost of servicing the aggregate liabilities of the municipality to exceed 5% of the annual calculation revenue of the municipality for the previous year (note: the above is sometimes known as the “approval-free liability zone”)

50 LIABILITIES UNDER AGREEMENTS 8.The liability is to be incurred for the purpose of complying with an order of a drinking water officer under the Drinking Water Protection Act that expressly requires the municipality to install treatment works and the inspector of municipalities approves the proposed liability; 9.The liability is to be incurred for the purpose of: a)preparing or revising, under the direction of the minister under section 24(3)(a) of the Environmental Management Act, a waste management plan respecting the management of municipal liquid waste; or a)implementing all or part of, or an amendment to, a waste management plan approved by the minister under section 24(5) of the Environmental Management Act respecting the management of municipal liquid waste; and the Inspector of Municipalities approves the proposed liability.

51 LIABILITIES IMPOSED UNDER PRESCRIBED ENACTMENTS S.176 of the Charter authorizes the Cabinet to make regulations prescribing classes of liabilities imposed under enactments as liabilities that municipalities may incur No regulations have been enacted in relation to this type of authorized liability


53 GENERAL CEILING ON AGGREGATE LIABILITIES The Province can establish basic municipal debt limits by regulation in two different ways while retaining the authority of the Inspector of Municipalities to permit a particular municipality to exceed the generally applicable level for a specific purpose The Cabinet can prescribe limits on: The aggregate liabilities of municipalities; and The annual cost of servicing those liabilities The Cabinet has prescribed limits on the annual cost of servicing those liabilities by way of the MLR

54 CEILING ON DEBT SERVICING COSTS Each current and future expenditure on servicing municipal debt must be anticipated in the applicable year of the municipality’s financial plan The MLR prohibits the incurring of new liabilities if the annual cost of servicing the municipality’s liabilities exceeds 25 percent of its annual revenues in certain prescribed categories, or incurring the new liability would cause the annual cost to exceed that level

55 SERVICING LIMIT CERTIFICATE The municipality’s financial officer is required to prepare a liability servicing limit certificate and submit it with any loan authorization bylaw tendered for the Inspector of Municipalities approval and when submitting a leasing proposal to the Municipal Financial Authority (the “MFA”) The MFA relies on these certificates when it provides a solicitor’s opinion to lenders in connection with the issuance of securities for its borrowing on capital markets Rules for preparing these certificates are set out in ss.3,4 and 5 of the MLR

56 REVENUE ANTICIPATION BORROWING Local governments can borrow funds on a short- term basis to meet current financial obligations and, in the case of municipalities, their obligations to other taxing authorities for which they collect taxes Such borrowing may be required to supplement the local government’s cash flow during the period before local taxes are due The amount that may be borrowed in anticipation of the current year tax revenue must not exceed the amount of unpaid taxes for the current year

57 REVENUE ANTICIPATION BORROWING If the borrowing is undertaken prior to the adoption of the annual property tax bylaw, the current year’s unpaid taxes are deemed to be 75% of the total taxes imposed in the preceding year When collected, the revenue from property taxes must be used as necessary to repay money borrowed

58 SHORT-TERM CAPITAL BORROWING A council can, by bylaw adopted with the approval of the Inspector of Municipalities, contract a debt for any purpose of a capital nature The debt cannot cause the municipality to exceed the limit prescribed by regulation The debt and securities must be payable no later than the less of: 5 years from the date on which the securities were issued; and The reasonable life expectancy of the capital asset for which the debt is contracted The bylaw must set out: The amount of the debt intended to be incurred; and The purpose for which the debt is incurred

59 LOAN AUTHORIZATION BYLAWS : LONG-TERM BORROWING Long-term borrowing occurs through loan authorization bylaws adopted with the approval of the Inspector of Municipalities A loan authorization bylaw must be its own bylaw and cannot be included as part of a general bylaw Any refusal of the Inspector of Municipalities to approve such a bylaw may be appealed to the Minister of Community Development under s.1024 of the LGA

60 LOAN AUTHORIZATION BYLAWS : REQUIREMENTS (CONTENT) A loan authorization bylaw must set out the following: The total amount proposed to be borrowed under the bylaw; Each of the purposes for which the debt is to be incurred (generally); The amount allocated by the bylaw to each of the purposes for which the debt is to be incurred; and The maximum term for which the debentures may be issued

61 LOAN AUTHORIZATION BYLAWS : REQUIREMENTS (ELECTOR APPROVAL) Generally, loan authorization bylaws must be approved by electors However, approval of the electors is not required when the money borrowed under the bylaw is for: Court, arbitration and expropriation requirements; Works required to be carried out under an order of the Inspector of Dikes or and order under ss.84,85 or 75 of the Environmental Management Act; or A purpose prescribed by regulation

62 LOAN AUTHORIZATION BYLAWS : REQUIREMENTS (INVOLVEMENT OF REGIONAL DISTRICT) Generally, other than temporary borrowing permitted by section 181 of the CC, a municipality can only borrow money under a loan authorization bylaw if the financing is undertaken by the applicable regional district under s.824 of the LGA through the MFA and the regional district board has consented to undertake the financing

63 LOAN AUTHORIZATION BYLAWS : ALLOWABLE PURPOSES Under authority of a loan authorization bylaw, a municipality can incur a liability by borrowing for one or more of the following: 1.Any purpose of a capital nature; 2.Lending to any person or public authority under an agreement; 3.Guaranteeing repayment of the borrowing, or providing security for the borrowing of a person or public authority, if this is provided under an agreement with the person or public authority;

64 LOAN AUTHORIZATION BYLAWS : ALLOWABLE PURPOSES 4.Complying with an order or requirement to pay money into the Supreme Court as security for: Payment of a judgment or other debt; Damages or costs; or Costs of an appeal from the decision of a court or an arbitrator 5.Satisfying a judgment or other order of a court against the municipality; 6.Satisfying an award resulting from an arbitrator’s determination of liability of quantum of damages against the municipality; 7.Paying compensation for expropriated or injured property or works involving entry onto land to mitigate damage

65 LOAN AUTHORIZATION BYLAWS : ADDITIONAL POINTS The time at which the authority to borrow under a loan authorization bylaw ends depends on the purpose of incurring the liability under the bylaw The maximum term of a debt that may be authorized by a loan authorization bylaw varies depending on the purpose of incurring the liability under the bylaw Temporary borrowing under a loan authorization bylaw is allowed (pending advance of loan proceeds by the MFA)


67 GENERAL PROHIBITION Generally, local government legislation prohibits the provision of any form of financial assistance to businesses including any grant, benefit, advantage or other form of assistance to a business Specific examples of prohibited financial assistance include: Disposing of land or improvements, or any interest or right in or with respect to them for less than market value; Lending $$$; Guaranteeing repayment of borrowing or providing security for borrowing; Assisting under a partnering agreement (with one exception); and Providing an exemption from a tax or fee

68 GENERAL PROHIBITION The question of whether a particular business arrangement effects the provision of “assistance” is one that must be addressed in the isolated aspect of the arrangement (International Paper Industries Ltd. V. GVRD) For example, allowing private development of municipal property in a large-scale civic centre project is not, per se, providing assistance to the developer (Dales Properties Ltd. v. Surrey (City)) An amenity contribution does not fall within the ambit of the general prohibition (Virdis v. North Vancouver (City))

69 EXCEPTIONS The provision of assistance to business is expressly authorized in five circumstances

70 EXCEPTION # 1: PARTNERING AGREEMENTS FOR THE PROVISION OF A SERVICE ON ITS BEHALF The provision of assistance to business is expressly authorized where the local government enters into a partnering agreement for the provision of a service on its behalf “Partnering agreement” is defined in the Schedule to the Charter and s.5 of the LGA as an agreement between a local government and a person or public authority under which the person or public authority agrees to provide a service on behalf of the local government other than a service that is part of the general administration of the local government “Service” is defined in in the Schedule to the Charter and s.5 of the LGA an activity, work or facility undertaken or provided by or on behalf of a municipality or regional district “On behalf” of a local government appears to mean that the private partner is to provide services to member of the public as if the private partner were the municipal corporation (e.g. garbage collection and disposal, the provision of recreational facilities such as ice rinks and swimming pools)

71 EXCEPTION # 1: PARTNERING AGREEMENTS FOR THE PROVISION OF A SERVICE ON ITS BEHALF Since a BC local government can provide any service that the council or regional board considers necessary or desirable, this criterion would appear to be easy to satisfy It is critical that the agreement actually identify the municipal service that is being provided The purpose of the partnering agreement exception is so that when a local government is negotiating a partnering agreement it can bring to the table the full range of bargaining chips, including those that it possesses only by virtue of being a municipal corporation (e.g. tax exemption power)

72 EXCEPTION #2: HERITAGE RESOURCES The provision of assistance to business is expressly authorized where the assistance has to do with: Acquiring, conserving and developing heritage property and other heritage resources; Gaining knowledge and increasing public awareness about the community’s history and heritage; Any other activities the municipality or regional district considers necessary or desirable with respect to the conservation of heritage property and resources

73 EXCEPTION #3: TAX EXEMPTION The provision of assistance to business is expressly authorized where the assistance is in the form of a tax exemption provided under s.225 or s.226 of the Charter or s.812 of the LGA

74 EXCEPTION # 4: CAPITAL FINANCING The provision of assistance to business is expressly authorized where a regional district is providing capital financing for a natural gas, telephone or electric power utility

75 EXCEPTION # 5: BUSINESS PROMOTION SCHEME The provision of assistance to business is expressly authorized where the assistance is a business promotion scheme undertaken in a business improvement area


77 PUBLICATION OF INTENTION TO PROVIDE CERTAIN KINDS OF ASSISTANCE If council intends to provide certain kinds of assistance to a person or organization it must give public notice of this intention The kinds of assistance which require public notice include: Disposing of land or improvement, or any interest or right in or with respect to them, for less than market value; Lending $$$; Guaranteeing repayment of borrowing or providing security for borrowing; Assistance under a partnering agreement

78 FORM & CONTENT OF NOTICE The notice must: Be given in accordance with s.94 of the Charter (it must be posted in public notice posting places and published in a newspaper with at least weekly distribution in the area affected for two consecutive weeks) Be published before the assistance is provided; Identify the intended recipient of the assistance; and Describe the nature, term and extent of the proposed assistance

79 April 12, 2012 Seven Habits of Frequently Sued Managers Presented by Ryan Berger

80 Habit One Hire Quickly, Not Carefully

81 A Critical Decision – Treat it That Way Most employment claims can be traced to poor hiring decisions Don’t rush the process Trust your instincts Prepare for interviews Explore gaps in the resume

82 Some Interviewing Do’s & Don’ts Do get job-related background information Do ensure the candidate can perform “essential job functions” Do understand what makes the candidate unique Do document reasons for selection/rejection Don’t let age, gender, marital status creep in Don’t ask about disabilities or limitations Don’t probe personal or lifestyle issues

83 Common Mistakes What does your husband do? How many kids do you have? Are you planning to have more kids? Have you ever filed a workers’ compensation claim? What country are you from?

84 Avoiding “Hiring Fraud” Be straight, don’t puff or exaggerate Rely on written materials whenever possible If you don’t know, say so Defer to HR on details about the hiring process Be especially careful when “luring” someone from other employment or someone moving here to take the job

85 Habit Two Avoid Documenting Termination Provisions

86 Common Mistakes No termination provisions in contract Independent contractors that are really employees Automatic bonuses Allowances for car, cell phone Failure to give clear notice of termination

87 Limit Exposure Related to Dismissal If it is a duck, don’t try to call it an independent contractor Make bonuses discretionary Give reimbursements, not allowances Clear termination clause (compliant with Employment Standards) Give clear notice

88 Habit Three Don’t Document – Just Rely on Memory

89 Why Document? Plaintiffs do, so you are at a disadvantage if you don’t Your memory isn’t what it used to be The average judge won’t believe it if it isn’t documented Because employers have the burden of proof to justify discipline, they must keep thorough records Even if not proceeding with discipline, document everything

90 How to Document 1.Do whatever works – to be able to recall details a year or more later 2.Use the company’s forms when possible 3.Do it contemporaneously (or darn close) 4.Don’t overdo it 5.Keep it

91 Key Areas to Document Performance – conduct that could lead to disciplinary action Misconduct, harassment investigations Accommodation conversations – notes of meetings Leave and return to work issues Basis for decisions on disciplinary action Keep signed copies of all letters

92 Habit Four Avoid Confrontation or Criticism During Performance Management and Reviews

93 Performance Reviews Issues of performance are almost always central to a discrimination or termination claim Don’t “sugar coat” the review; it will come back to haunt you Remember – courts and arbitrators hold organizations to what they say in the reviews

94 Effective Performance Management Communicate goals and expectations clearly Don’t wait for formal “reviews” Be fair, honest, and consistent Fair criticism takes time and thought > Praise the good and criticize the bad > Don’t just criticize – provide the tools and the time to foster improvement

95 Documentation Contemporaneously document misconduct, performance problems and counselling sessions Remember: “if it isn’t documented, it didn’t happen”

96 Common Problems Ignoring the problem until it becomes a major issue, and then expecting to terminate for cause or fix it immediately The desire to transfer a bad employee to another department, instead of dealing with it “Bottom drawer” files

97 Performance Management Discipline is not always the answer or the first step Performance management often becomes the foundation for discipline Part of setting an employee’s expectation Correct past bad behaviour and improve performance Should be in writing and should state that it is not discipline

98 Performance Management Go through improvement plan with the employee in person Set clear, achievable goals Provide ongoing support to the employee Consider appropriate external support > Marriage breakdown? > Child with drug addiction?

99 Performance Management Tailor a plan to each employee Get input from the employee when creating Have employee sign the plan Follow up on the plan and monitor performance Provide constructive criticism Reward improvement (positive reinforcement)

100 The Disciplinary Process Discipline must be individualized– there is no cookie cutter approach to disciplining employees An employer is expected to consider all of the relevant circumstances before imposing discipline An investigation helps to identify all of the relevant factors (investigations are discussed later)

101 Steps in Progressive Discipline Verbal warning – not worth the paper it's not written on Letters of expectation - not disciplinary These are part of management of employees, but are not discipline

102 Steps in Progressive Discipline Warning letter Short suspension Long suspension Termination

103 Habit Five Tolerate Crude, Lewd and Offensive Behaviour

104 Top 5 Reasons Why You Should be Concerned About Harassment 1.Harassment is disrespectful, degrading and demoralizing 2.Employees perform better in a harassment- free work environment 3.It’s not just the employer’s pocketbook; it could be yours as well 4.It’s the law 5.It’s policy

105 Hostile Environment Jokes, remarks Pictures, downloads, screensavers Looks and gestures Touching, blocking way

106 “e-Harassment?” E-mail is ubiquitous E-mail is a powerful distribution tool E-mail is forever

107 Where is the “Workplace?” Lunches / Dinners Business trips “Official” Parties / Gatherings

108 Who Can Harass? Supervisors Co-Workers Customers Contractors

109 Tried and True Defenses (That Failed) “It’s nothing you wouldn’t hear on TV.” “I’m just a ‘touchy-feely’ type.” “I didn’t mean anything by it.” “She never told me to stop.” “It had nothing to do with sex.”

110 Avoiding Harassment Claims Set an example Intervene early – be proactive Don’t punish the messenger Conduct thorough, good faith investigations Impose / support decisive corrective action

111 Habit Six Give Short Shrift to Requests for Leave or Accommodation

112 An Employee has the Right to Miss Work… For their own sickness To care for a sick child, parent, spouse For bereavement leave To vote To attend rehab Intermittently or on a reduced schedule to treat or recover from a serious health condition For pregnancy and parental leave

113 Human Rights Code A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of a number of protected grounds

114 Protected Grounds race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person

115 Bona Fide Occupational Requirement (BFOR) Prohibitions do not apply with respect to a refusal, limitation, specification or preference based on a “bona fide occupational requirement” A BFOR will exist where the policy, rule, or requirement: was adopted for a purpose rationally connected to the performance of the job was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and where the policy, rule, or requirement is reasonably necessary to the accomplishment of that legitimate work-related purpose

116 Nature and Extent of Accommodation Undue hardship does not mean impossible to accommodate The duty to accommodate does not alter the fundamental contract of employment: the performance of work for remuneration Several factors are considered when determining whether undue hardship exists (e.g. cost; workplace morale, etc.)

117 What is a disability? Disability is not a defined term in the Human Rights Code Includes perceived disability Examples: Bi-polar disorder Depression PTSD Panic disorder Schizoaffective disorder Dyslexia Alcohol /drug addiction Severe learning disorder Anxiety

118 Assessing the Disability Onus is usually on the employee to communicate the nature of the disability to the employer BUT it is not necessary for an employee to notify the employer of the nature of his or her disability for a complaint of discrimination to succeed; this is particularly true with mental disabilities

119 What information can / should you get? Duty to inquire Ask for: nature of the illness or disability (i.e. recurring or chronic) prognosis for full or partial recovery, expected duration of absence / date of return the employee’s functional capabilities what accommodations are necessary at work whether treatment prescribed and followed evidence that the employee is fit to return to work

120 Assessing Disability Do not ask for: the employee’s diagnosis the kind of treatment IME direct contact with the employee’s doctor and the doctor’s records (there are exceptions)

121 Habit Seven Failure to Investigate Allegation (or properly investigate)

122 Managers will sometimes… Take action on the word of a single employee Not act to investigate when the information is fresh Fail to consider the evidence objectively Fail to provide the employee with an opportunity to respond

123 Investigations Mere suspicion or allegation of wrongdoing is not enough to take action Investigate any conduct immediately when you learn of the conduct and the conduct may be worthy of some kind of action, disciplinary or otherwise The mere potential for action is sufficient to trigger an investigation— an investigation is what helps you to determine whether any action is needed

124 When do you conduct investigations? Immediacy is important because: Memories fade over time Arbitrators and Courts will downgrade the severity of the conduct to the employer if the investigation is delayed– a delayed investigation suggests that the conduct is not that severe

125 How to conduct an investigation Basic Rule: Take a thoughtful and rational approach Is an investigation needed to fully understand what is going on? How does the conduct relate to the employee’s job? What was the fallout? What do your policies say? Who is involved?

126 Why conduct an investigation? Examples of conduct that has warranted investigation: Absenteeism Harassment Expense claims Mileage claims Off-duty conduct (e.g. internet postings; charges)

127 Some Key Components Who should investigate? Are there applicable policies? Documentation Provide an opportunity to be heard (Shop Steward right?) Closure

128 Questions?

129 Seven Habits of Frequently Sued Managers


131 Presentation road map Site profiles and site investigations Development freeze (sections 946.1 and 946.2 of LGA) Remediating contaminated sites Sale/Purchase of contaminated sites Municipal roads and other issues

132 Legislative scheme Key legislation: Environmental Management Act Contaminated Sites Regulations Protocols and guidelines under the EMA Purpose: “the prevention of pollution and the identification and remediation of contaminated sites” (Beezer East, Inc. v. British Columbia (Environmental Appeal Board))

133 What is a contaminated site? “Contaminated site” means an area of land in which the soil or any groundwater lying beneath it, or the water or the underlying sediment, contains (a)a hazardous waste, or (b)another prescribed substance in quantities or concentrations exceeding prescribed risk based numerical criteria or standards or conditions

134 The site profiles and the site investigations

135 Identifying contaminated sites Site profile is submitted (to municipality, approving officer, director, or otherwise). In some circumstances, site profiles are forwarded to the director. Preliminary/Detailed site investigation (decision about the investigation to be made within 15 days of director receiving a site profile). Development freeze (if application for subdivision/zoning/soil removal/DP/DVP/demolition).

136 Identifying contaminated sites – cont. A person must provide a site profile: > To the approving officer upon subdivision of land used for industrial or commercial activity; > To the municipality upon: > Zoning, > DP/DVP, > Soil removal, > Demolition permit, or > A prescribed activity

137 Identifying contaminated sites – cont. An owner of real property must provide a site profile: > To the director (under the EMA) if the owner: > Owns real property that is used or has been used for specified activities; > Dismantles a building or structure, or decommissions a specified site; > Applies for an approval of a specified activity; or > Undertakes activities or receives information prescribed by regulations.

138 Identifying contaminated sites – cont. A vendor of real property who knows or should know that real property has been used for a prescribed purpose or activity must provide a site profile to a prospective purchaser. A director may order a person to prepare and provide a site profile if the director suspects the person owns or occupies a contaminated site.

139 Identifying contaminated sites – cont. Exemptions from providing site profiles Section 4 of the CSR lists exemptions to providing a site profile. Some examples: > Municipality undertakes to rezone land in which it has no interest > Municipality undertakes to rezone land the municipality does not intend to develop and municipality commits to submit a site profile upon development > A purchaser waives, in writing, a right to receive a site profile

140 Identifying contaminated sites – cont. Upon receipt of a site profile, approving authorities (such as municipalities) have a duty to assess and ensure the site profile is properly prepared. If any question in sections IV through IX of the site profile is answered “yes”, the approving authority or the individual is required to forward the site profile to the director. Site profiles without “yes” get sent to the Site Registrar to be registered in the Site Registry.

141 Identifying contaminated sites – cont. Site Investigations Preliminary site investigation > Searching existing records about site use, interviewing people (section 58, CSR) Detailed site investigation > More detailed work than PSI to determine location, extent and impact of contamination (section 59, CSR) Director may order a PSI or a DSI to be conducted upon receipt of the site profile. Director must notify the municipality and the person (who provided a site profile) within 15 days of receipt of a site profile if a PSI or a DSI would be required.

142 Identifying contaminated sites – cont. Site risk classification Protocol 12 – came into force on June 1, 2010. Procedure for classifying sites and parts of sites based on their environmental and human health risk. Sites which are classified high risk require high standard of care and responsiveness in investigation and remediation. Triggers for a site risk classification report include submission of a site investigation, submission of independent remediation initiation, notification of offsite migration and more.

143 Development freeze – sections 946.1 and 946.2 of the LGA

144 Development freeze In 1990s local governments indicated that they wanted to be involved in the contaminated sites screening process. In 1996, sections 946.1 and 946.2 were added to the then Municipal Act (equivalent sections were added to the Vancouver Charter (571B), the Land Title Act (85.1) and Island Trust Act (34.1)). Currently, sections 946.1 and 946.2 of the LGA. Local governments have an option to opt out of the contaminated sites screening system – will not be collecting site profiles. The land owners and operators will still be subject to other provisions in the contaminated sites regime.

145 Development freeze – cont. A site profile requirement triggers “development freeze”. Section 946.2 of the LGA provides that a municipality must not approve an application for zoning, DP/DVP, soil removal or demolition until one of the seven “releases” takes place.

146 Development freeze – cont. Releases: Authority is not required to forward a site profile to the director; Authority has forwarded the site profile and no further investigation (PSI/DSI) is required; Authority has received a final determination that the site is not a contaminated site; Authority has received a notice that application can be approved (a release letter); Authority has received notice that director has received and accepted notice of independent remediation; Authority has received notice that the Director has entered into voluntary remediation agreement; and Authority has received an AIP or a CC.

147 Development freeze – cont. Immunity in relation to contaminated sites Local governments (as well as their current and former employees and agents and current and former elected officials) are immune from liability in relation to any act, advice, failure to act or failure to make recommendations in relation to sections 946.1 and 946.2 of the LGA provided that their conduct is not dishonest or malicious (section 61, EMA).

148 Remediation of contaminated sites

149 Liability for remediation “Responsible persons” is a broad concept. Liability extends to current and former owners as well as persons who produced a substance and caused it to be deposited. Section 45 of the EMA lists persons responsible for the remediation. Case law often revolves around determination of responsible persons and establishing the apportionment of liability (see, for example, Gehring v. Chevron Canada Ltd.; Shoal Point v. ICI, etc.).

150 Remediation of contaminated sites – cont. Liability for remediation Section 46 of the EMA – exemptions from liability. For example, a municipality is not a responsible person in respect of roads, provided that the municipality did not cause the contamination.

151 Remediation of contaminated sites – cont. Remediation standards Director may issue an approval in principle stating that a remediation plan for a contaminated site has been reviewed and approved by the director and may be implemented in accordance with set conditions.

152 Remediation of contaminated sites – cont. Remediation standards Director may issue a certificate of compliance if the site has been remediated in accordance with: > The numerical or risk based standards prescribed for the purposes of the definition of “contaminated site”, any orders under the EMA, any remediation plan approved by the director and any requirements imposed by the director

153 Remediation of contaminated sites – cont. Remediation standards Application of numeric standards: > Site is considered remediated if it does not contain any substance with a concentration greater or equal to the applicable generic numerical soil/water and vapour standards (numeric soil, water and vapour standards are set out in schedules 4, 6 and 11 of the CSR) > Sometimes, site-specific numeric standards can be developed (Protocol 2)

154 Remediation of contaminated sites – cont. Remediation standards Application of risk-based standards: > Site considered remediated if for any non-threshold carcinogenic substance, the calculated human lifetime cancer risk due to exposure to that substance at the site is less than or equal to a risk value recommended by the local medical health officer for the site and for any substance for which a hazard index is calculated, the hazard index due to exposure of a human to that substance at the site is less than maximum hazard index recommended by the local medical health officer for that site. > Procedures, such as monitoring risk, will be required.

155 Sale/purchase of contaminated sites – risk allocation

156 Sale/Purchase Potential liability for remediation of site as current and former owner. All exceptions from liability of relevance to sale/purchase of land require that a responsible person who wishes to benefit from the exceptions investigate the status of the property at disposition.

157 Sale/Purchase – cont. Due diligence searches (site registry, Ministry of Environment, Department of Fisheries and Oceans, Court Registry)

158 Sale/Purchase – cont. “As is” – the vendor refuses to accept any post-closing environmental risk. Transaction contemplates full disclosure of information by the vendor. Purchaser relies on their own investigation. Usually, accompanied by an indemnity provision by the purchaser in favor of the vendor.

159 Sale/Purchase – cont. Closing date allocation The closing date is the cut-off of liability, with the vendor accepting responsibility for before closing and the purchaser for after. Important to have a baseline report delineating what is before and what is after

160 Sale/Purchase – cont. Conditions of transfer: Due diligence Remediation to a certain standard: > Common to include a certificate of compliance as a mutual condition (or one of the parties’ condition) – the transaction does not proceed unless the condition is satisfied.

161 Municipal roads and other issues

162 Municipal roads Since 2004, municipalities own the roads. Municipalities can close and dispose of roads. Most roads are contaminated due to transportation of goods, salting, off-site migration, etc. Municipalities are not responsible persons in respect of road contamination (provided they did not place the contamination there). Upon disposition, contamination of roads should be considered in a sale/purchase agreement – preferably, dispose on an “as is” basis. Also, contamination should be considered when land is dedicated as roads by developers.

163 Other issues Containment walls – sometimes an approval in principle of a remediation includes constructing a containment wall Off-site contamination remediation – agreement to remediate a municipal streets.

164 Questions?


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