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Managing Risky Business: Q1 2021

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Managing Risky Business: Q1 2021

In this issue of Managing Risky Business, read about:

The Claims Picture Since Renewals

We have had a difficult start to our 2021 insurance term. In the first four months (November 1, 2020 to March 18, 2021), our program saw a total of 53 claims with an estimated cost of more than $8.2M. Though the number of claims is roughly the same as last year, the costs have been much higher this year due to several major fires – with one +$3M claim involving the loss of a 28-unit building. Fire claims of various types significantly outstripped all other categories with three careless smoking incidents representing more than 60% of the total cost . The 17 fires with unknown causes, which are currently under investigation, made up another 28% of the total. The graph below shows the distribution of claims:

Looking back over the past year, the number of claims was evenly distributed across each month, with an average of 10 claims. As usual, most of the claims arose from fire and water incidents (29 and 18 respectively):

This term we’ve seen a number of preventable claims in our program. While we can never completely stop these types of accidents from happening, there are measures we can take to mitigate risk and keep our communities safe. These include:

  • Making buildings smoke-free – we can supply you with wording for your tenancy agreements and we offer a discount on your insurance costs
  • Regularly inspecting and maintaining fire safety equipment, including smoke detectors – we have a monthly premises safety inspection checklist and an electrical maintenance guide to help you implement best practice procedures at your building
  • Having a contingency plan on site and ensuring that your property manager knows and understands it – our contingency planning guide can help you get a headstart in creating one for your organization

If you’ve got questions about making your buildings safer, we’re happy to help. Contact us at insurance@hscorp.ca 

Ensure Your Property Claim Is Resolved Quickly and Efficiently

It can be a hectic and confusing time after an accident that results in property damage. When such incidents happen, it may not be immediately clear what you’re supposed to do.

We’ve put together a brief checklist of steps you should take immediately after an incident, regardless of whether it ends up being an insurance claim or not. Taking these steps will protect your organization and/or help the resolution of your claim.  

Download the Property Claim Checklist

COVID-19: Still A Concern for Underwriters

To manage premiums and avoid exclusions, our liability underwriters are suggesting that we may need to once more affirm the pandemic health and safety practices we have in place in our buildings. What does that mean? It is possible that we will need to conduct another survey of our clients.

Our group last year was instrumental in securing coverage that did not exclude COVID-19 liability claims. We hope that should we need to repeat this exercise that we will meet with the same response. This coverage remains important to our group for the foreseeable future.   

We will keep you posted on this as we approach renewals.

OW and ODSP Recipients and Tenant Insurance

Effective May 1, 2021 the HSC Tenant Insurance Program will no longer offer a monthly government payment option for OW/ODSP recipients. Clients can still continue with monthly payment, but these will only be allowed using credit card or direct debit. OW/ODSP recipients will still be able to use annual government payments but will need their caseworkers’ assistance to make the changes with the Service Manager OW/ODSP office.  

Affected HSC Tenant Insurance clients using monthly government payments will receive a letter from XN Financial stating that their coverage will terminate. The letter will be issued 60 days prior to the client’s policy expiration date on a rolling basis, as policies come up for renewal.

To maintain coverage, existing tenant insurance customers must set up a new account and method of payment after receiving the letter. Clients or caseworkers can do so by calling Marsh Canada’s Private Client Services at 1-866-940-5111. 

Download FAQs on the Change

New Legislation Impacts Slips, Trips and Falls

On December 8, 2020, Bill 118, the Occupiers Liability Amendment Act, came into effect. The Bill changes the time limit for giving written notice of a slip-and-fall claim caused by snow or ice from two years to 60 days.

The passage of the Bill was welcomed by snow removal contractors, who were increasingly having difficulty obtaining insurance due to the high risk of claims. In recent years, slip and fall claims against these contractors had surged; according to Canadian Underwriter settlements have ranged on average between $70,000 and $270,000. The magazine also notes that legal costs and awards arising from slip-and-fall cases in Canada are on the rise.

The new notice requirement will prompt contractors to act more effectively when incidents happen – since the rapid pace of the claim process will mean that investigations, including interviews with staff and witnesses, will have occurred more recently and activity logs and surveillance footage will be more readily available.

The legislation could also be good news for housing providers, who are also frequently claimed to be liable in slip, trip and fall cases connected to snow and ice. Slips, trips and falls make up more than 60% of the liability claims in our program.

Download Sample Wording for Snow Removal Contracts

Understanding Falling Objects Claims

While falling object claims aren’t the most common liability claims, they do occur in our program from time to time. However, in many cases, they are preventable if you take the proper precautions. To learn more about these types of claims, we interviewed Sandra Lee and Martha Maidwell at AXA XL, HSC’s liability underwriter. Both are on AXA’s Casualty Claims team.

Based on your experience, what kinds of objects most commonly fall in a residential setting?

The most common claims we see in residential settings are ones involving unsecured objects or debris flying off a balcony. We also see claims relating to falling trees/branches during windstorms. These accidents can cause property damage (to buildings or vehicles, for example) or result in personal injuries. In some tragic instances, falling objects can kill people.

In the HSC program, we’ve seen claims involving an improperly secured window-mounted air conditioner unit; falling construction debris; and falling tree branches causing various types of property damage.

In all of these cases, the housing provider is considered to be liable for the accidents.

Why would a housing provider be found liable for a falling object?

In Ontario, falling object liability is connected to the Occupiers’ Liability Act. Occupiers can include a housing provider, a property manager, or a tenant.

Occupiers are responsible for keeping individuals “reasonably safe” from harm when they are on the premises. Part of this duty includes being responsible for inspecting their property to comply with a “reasonably safe standard”. A falling object that occurs from inadequate inspection, maintenance or repair, and injures an individual or their property, could result in a finding that the occupier did not meet the “reasonably safe” standard.

Occupiers are not held to a standard of perfection – hence, the word “reasonable” is used. In determining whether a “reasonably safe” environment exists, the specific facts of a case are critical. Liability may depend upon a variety of factors, including an inherent or unusual danger on site; the reasonable likelihood of a particular incident occurring; whether the occupier uses an adequate program of care and maintenance; and the plaintiff’s willingness to assume a foreseeable risk.

What steps should a housing provider take if an object falls on a tenant or visitor on their property?

When a claim arises, the occupier should take a proactive role in managing the situation, and a policy can be developed for this as well.

  1. Housing provider staff should assist the claimant in finding medical treatment (e.g., calling 911, when warranted) when the injury occurs.
  2. The loss should be reported as soon as possible to their insurance broker so it can be forwarded on to the insurer.
  3. All documentation, evidence and video need to be preserved. The names and contact information of any eyewitnesses should be recorded.
  4. Any discussions with the claimant should be referred to the insurer.

If the incident involves a situation where a contractor is involved (e.g., construction debris), the provider should locate copies of any contracts or work orders to assist the insurer in identifying the contractor, the scope of their work and to review any indemnity clauses.

If the situation involves a tenant (falling items originating from a tenant’s unit/balcony, for example), the provider should be prepared to provide the insurer with a copy of the tenancy agreement, any relevant maintenance orders or record of inspections conducted and a copy of the tenant’s insurance policy, where available.  Employees should be instructed to not discuss potential liability with claimants or admit liability on behalf of the organization. Furthermore, taking pictures of the area where the incident occurred may be helpful for future analysis.  An incident report would also be beneficial.

What advice would you offer housing providers from your experience? Are there any simple things that they can do to avoid these types of accidents?

We recommend that providers maintain the upkeep of their buildings and property. They should develop and implement inspection and maintenance policies that:

  • Outline the purpose of the policy
  • The effective and revision dates
  • The frequency of inspection and maintenance and the manner of documentation
  • Corrective actions to be taken if minimum standards are not to be met, and the persons responsible.

Providers should also ensure that inspections are conducted frequently to identify hazards or maintenance deficiencies. An inspection form or log to be used during such inspections is important, to document the findings from each inspection and to demonstrate that it was being done on a regular basis. In the event this duty has been delegated to the property manager, the delegation needs to be specific so there is no issue in terms of liability between the parties in a lawsuit.

When the risk of liability rests with a contractor (e.g, construction debris), the contract should be specific as to the scope of work, the responsibilities of each party and should include indemnity/hold harmless provisions in favor of the housing provider.

Tenants should also be explicitly advised and reminded that they ensure their balconies are free of any falling hazards.  In the event that a tenant is responsible for an incident, tenant insurance can help in the likelihood of transferring the risk. So having a mandatory tenant insurance policy in your building and monitoring tenant insurance policies can be helpful in managing a provider’s liability exposure.

Do you have questions about falling objects claims not answered here? Looking for further details? Email us at insurance@hscorp.ca

In the News

Here are claims since the start of the term that received news coverage.

March 2021

February 2021

January 2021

December 2020

November 2020

New Resource Ahead of Spring Flooding Weather

April showers bring May flowers. But in many parts of Ontario, Spring is flood season, which has caused tremendous damage in recent years. In 2019, spring flooding that took place in Eastern Ontario was estimated to cause $74M in damage. Areas in southwestern Ontario, such as Windsor-Essex, Chatham-Kent and Sarnia-Lambton are also increasingly prone to flooding and have experienced similar catastrophic property damage.

Experts attribute the increase in flooding to climate change. Towards managing the effects of climate change, many Canadian jurisdictions are creating plans to support climate resilience. There are, however, more immediate steps housing providers can take. Developing a flood emergency plan can help mitigate the impact.

To assist providers in developing their plan, we have prepared a flood preparedness guide. This brief guide identifies items to consider when preparing your building for potential flooding.

Download the Flood Preparedness Guide

The Intact Centre on Climate Adaption at the University of Waterloo also offers a library of resources on flood prevention, including a flood risk self-assessment; protection tips; and guides on reducing mould risk.

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