Winter Maintenance Contracts: Some Things to Watch For

Here’s what we’ve been noting about winter maintenance contracts:

  1. Sometimes the contract may place unreasonable limits upon the contractor’s liability. In our view, a winter maintenance contractor should be fully liable for any harm or damage resulting from the contractor’s negligence or breach of contract, and we recommend that this be carefully spelled out in the contract (usually in a properly-worded “indemnification provision”).
  1. Sometimes the contractor may attempt to “shift” responsibility to the client (for example, through creative indemnification provisions). In our view, each party should be fully responsible and fully liable for their own negligence and/or failed performance of their contract obligations – no more and no less. If the contractor purports to place greater liability upon the condominium corporation, the corporation might not have insurance coverage for that greater risk [our experience, so far, is that insurers for the Corporation are not prepared to accept the greater risk, and will not provide coverage]. Furthermore, this may trigger requirements to notify the corporation’s insurer and/or to include notice of the assumed risk in the status certificates.
  1. It’s important to consider whether or not the contractor has been able to arrange for reasonably adequate liability insurance (which should be noted in the contract).
  1. It’s important to ensure that the contractor meets all Occupational Health and Safety obligations and WSIB obligations (and for this to be spelled out in the contract).
  1. The specific services to be provided need to be carefully detailed in the contract. In our view, the contract can properly say that the contractor is only responsible for harm or damage that results from the contractor’s negligence or failure to properly perform the contracted services. In our view, it’s also proper for the contract to acknowledge that perfectly safe conditions are not necessarily the standard (and in fact may often not be possible). Again, the standard should be reasonableness (and in our view, this can be expressed in the contract). It’s also a good idea to advise all residents that perfectly safe conditions are not necessarily possible. A notice to residents, advising of the specific contracted services (including the limits on those services) and advising of the resulting safety risks and advising all residents to be careful under any unsafe conditions can be a very helpful step to take.
  1. Because of increased costs, the potential for pricing increases is also a growing concern. Particularly in the case of a multi-year contract, it’s important to consider whether or not any pricing increases will be permitted during the contract. This should be carefully addressed in the contract.
  1. Termination rights are always important (including rights to terminate “without cause” or “with cause”) and need to be carefully spelled out in the contract.
  1. Finally, we remind readers that the Occupier’s Liability Act now contains specific requirements for notice (to occupiers and/or winter maintenance contractors) prior to commencement of a claim for personal injury due to snow or ice. In our view, the contract should not impose more onerous notice requirements.

In summary, our observation is that winter maintenance contracts are a “hot topic” requiring careful attention. We urge all condominium corporations to carefully scrutinize these contracts. If in doubt, consider obtaining legal advice about a given contract.

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