March 17, 1998

 To:East York Community Council

From:Don Boyle, Acting Commissioner of Parks, Recreation and Operations

Subject:Indemnity and Encroachment Agreements to Permit the Property Owner of 67 Ferris Road, East York to Maintain a Swing in a City Tree

 Purpose:

To advise the East York Community Council of the liability implications and legal cost to have the property owner sign Indemnity and Encroachment Agreements for permission to maintain a swing from a City tree at 67 Ferris Road, East York.

Funding Sources, Financial Implications and Impact Statement:

 Mr. Quinto Annibale of the law firm of Loopstra, Nixon and McLeish has advised staff of the Parks and Recreation Division in East York Region that preparation of Indemnity and Encroachment Agreements and registration of such Agreements on title for the subject property would incur a legal cost of approximately $450.00.

 Recommendation:

 It is recommended that the appeal by the homeowner of 67 Ferris Road be denied.

 Council Reference/Background/History:

 At its February 18 and 19, 1998 meeting, the East York Community Council received a report from the Acting Commissioner of Parks, Recreation and Operations regarding an appeal by the homeowner of 67 Ferris Road to hang a tire swing from a City tree in the front yard of the subject property. The homeowner also appeared before the Community Council with respect to this matter. Upon considering all comments provided in the report and the comments made by the homeowner, the East York Community Council requested the Interim Functional Lead for Parks and Recreation to report on the following:

 (i)the cost to the appellant to enter into a Waiver of Responsibility Agreement to allow the appellant to locate the tire swing in the municipal tree at 67 Ferris Road; and

 (ii)a determination on whether this waiver will completely absolve the municipality of any and all liability.

 Comments and/or Discussion and/or Justification:

 Mr. Quinto Annibale of the law firm Loopstra, Nixon and McLeish was consulted in March 1998 on the liability and cost implications of preparing and registering appropriate legal documents granting permission to the property owner to maintain a swing in a City tree. Mr. Annibale has advised that a combined Indemnity Agreement and Encroachment Agreement would have to be entered into with the property owner and that such Agreements would have to be registered on title to protect the municipality in the event of change of ownership.

 A Indemnity Agreement can be drafted which would substantially reduce the likelihood of the municipality being found liable for personal injury or property damage, or at least in the case of an indemnity, shift the burden of liability to someone other than the municipality. The Agreement can be drafted in the same manner as an Encroachment Agreement, which would have standard terms with respect to the use of the tree and would require the homeowner to release, indemnify and save the municipality harmless from and for any damages or liability, including third party liability and further, would require the owner to provide insurance to the municipality in the sum of $2,000,000.00. Nevertheless, even with these protections, it cannot be guaranteed that the municipality would not be found liable. The municipality would very likely be named in a lawsuit if an accident were to occur either with the homeowner or a third party. The municipality would then have to argue either that the municipality is not liable or that the waiver or indemnity contained in the Agreement was sufficient to protect the municipality and that the homeowner or his or her insurer should provide coverage.

 Mr. Annibale has also advised that the same Agreement would have to grant permission to the property owner to encroach on the municipal road allowance for the purposes of maintaining a swing in a municipal tree. The reason for this is that the tree is located on the municipal road allowance.

 Conclusions:

 It is clear that the City cannot be guaranteed that it will be completely absolved of any and all liability by entering into an Indemnity Agreement. The likelihood of liability or ultimate responsibility for damages could be reduced substantially by entering into such Agreement. It should also be noted that hanging any type of swing from the tree would certainly result in abrasion and constriction damage to the branch that the rope would be attached to. This type of damage could compromise the structural integrity of the branch.

 Contact Name:

 Don Boyle

Acting Commissioner of Parks, Recreation and Operations

Phone: (416) 778-2180 Fax: (416) 466-4170

E-mail: dboyle@borough.eastyork.on.ca

Don Boyle

Acting Commissioner of Parks, Recreation and Operations