Words mean things


Robert Kennaley, a lawyer specializing in construction law, has been helping contractors avoid legal exposure for years — as a former contractor, he understands the industry’s challenges. In addition to his Landscape Trades column, Kennaley is a frequent speaker at landscape industry events, and drafted the widely used Standard Form Snow and Ice Maintenance Contract, downloadable here.

What is the biggest mistake snow operators make in drafting contracts?
There are three; they are all big ones, and can hurt equally. The first mistake is not properly defining your scope of work — if you can’t show what you were hired to do, you can’t prove that you did it. A clearly defined scope allows you to show that you have met your contract obligations, if someone alleges that you didn’t. Site maps can help define scope, as well as identify problem areas. The second mistake is to make promises that are impossible or unclear. I have seen contracts promise to “keep the premises free of snow at all times,” which is impossible. I’ve also seen contracts promise to “apply salt when necessary,” which means virtually nothing and exposes that contractor to allegations that they breached the requirement. The third big mistake is to agree to over-reaching indemnity clauses — which we often call “side deals.” These require you to indemnify your client for claims even if you are not in breach of contract or negligent, and which go beyond personal injury or property damage claims. These go too far, and will oblige contractors to potentially pay when they do nothing wrong.

As a big picture concept, the importance of documentation is well known in the snow industry. What record-keeping details help an operator succeed?
The sooner operators embrace technology, the better, such as GPS, electronic reporting or instant uploads. Technology has become so efficient and economical, you can’t afford not to have it. For larger operations or sites, the old methods might not provide enough detail.

How often is a win in court, a loss to a contractor?
Every time a dispute goes all the way to court, it is a loss. Legal fees are expensive, and even if you win, you never get your legals back. In addition, you have lost lots of time away from work. Always try to resolve disputes sooner rather than later.

Does the Standard From Snow and Ice Maintenance Contract work across Canada?
While it was written for Ontario, is has been widely utilized. Those who use it outside Ontario should check with local counsel to ensure it meets local requirements. When it was first prepared, I introduced it on a ‘road show.’ We will be presenting a how-to session on the contract at this fall’s Landscape Ontario Snow Symposium.

Client relationships are independent of contract terms. Any tips on cultivating good relationships?
With smaller companies, smaller clients and residential work, relationship is key. Always make sure your client understands what he is getting for his or her money. Lawsuits rarely originate from contract terms, but rather from misunderstandings about the scope of work and loss of trust. 

You have been a contractor, and have worked with contractors for years. How good are they at learning and taking advice?
Many contractors used to operate without written contracts, on a handshake. Those days should be over, and many contractors do a very good job at preparing good contracts, engaging good policies and keeping good records. Some, however, attend seminars, listen and learn, but do not implement the knowledge. It takes work and diligence to manage risk well under contracts, and in practice. Many don’t learn the benefits of doing this work until a job goes south and they learn, first-hand, the importance of doing so. The smart contractors implement sound risk management processes, including good contracts, good documents, good training and good training records. They look at it like insurance: it’s a pain, and you don’t expect to need it. However, once you have it in place, it will pay off when you do. 

Rob Kennaley will speak on Sept. 25 in Brampton, Ont., at Landscape Ontario’s Snowposium. Visit www.snowposium.ca to register.

Landscape Trades, August 2018