Required upgrades to single-speed elevators lifted

Abandoning modernization may jeopardize insurance, maintenance contracts
Thursday, September 14, 2017
By Michelle Ervin

The Technical Standards & Safety Authority (TSSA) recently lifted the requirement to undertake certain upgrades to the controls of single-speed elevators, but it doesn’t necessarily mean that building owners who operate this equipment should abandon planned modernizations.

Building owners who have contracts in place for the work are likely on the hook to follow through, while building owners who forgo the work may find their insurance and maintenance contracts in jeopardy. And statutory obligations to maintain properties in a safe condition stand, regardless of the TSSA’s decision to overturn its own 2014 order mandating upgrades by 2022 to mitigate the then-anticipated risks associated with aging single-speed elevators.

As their name suggests, these devices travel at one speed, which makes them prone to stopping a few inches above or below floor level when their brake is activated, posing a trip-and-fall hazard. Single-speed elevators, which originated in the 1950s, are typically found in older, low to mid-rise residential buildings, including condo conversions and rental apartments.

The latest TSSA order, which took effect Aug. 1, explains that the original order came out of a review launched in 2010 of the risks associated with aging elevators. Data analysis done in early 2014 by a TSSA-led risk reduction group with representation from the elevator industry and elevating device owners identified the leveling accuracy of single-speed elevators as the main risk.

The TSSA indicated in an online FAQ that the reversal of the order follows the analysis of three more years of data, in which the forecasted rise in the rate of incidents on these devices had failed to materialize.

“The risk related to these devices was not as large as previously projected and with the requisite level of maintenance, this single speed technology, that was prevalent for more than half a century, can continue in the delivery of safe vertical transportation until these elevators are upgraded,” the TSSA said in the online FAQ.

The Canadian Elevator Contractors Association (CECA), however, has expressed concerns that lifting the requirement to complete what it termed safety improvement work poses a risk to riders of these devices. Following the decision, CECA drafted a form letter that members will have the option of using to ask customers to release them from responsibility for claims arising from the trip-and-fall accidents commonly associated with single-speed elevators.

“It’s basically going to say, ‘You’re taking on the full liability for this elevator,’” said Doug Guderian, speaking as a board member of CECA. “‘If you upgrade it, that’s fine; if not, if there is one of these incidents, you hold us harmless, meaning you pay for our legal costs as well if something comes of it.’”

In cases where a trip-and-fall incident leads to a claim, both the building owner and the elevator contractor are normally named in the lawsuit, triggering their respective insurance policies. Many of these claims go through the office of Mark Jackson, president of the Insurance Market, which insures building owners as well as most of Ontario’s independent elevator contractors.

In Jackson’s experience, building owners are typically the party held responsible for incidents relating to the operation of single-speed elevators.

“It’s [the device] naturally not going to level because of the way it was designed,” he said. “In those cases, there’s nothing the elevator contractor could have done differently, so they weren’t negligent.”

Jackson suggested that the TSSA’s recent reversal could have implications for the insurance policies of building owners who eschew upgrades to the controls of single-speed elevators. Insurers may hike premiums or issue critical recommendations requiring the modernization work within a set timeframe — typically 60 to 90 days — failing which building owners could lose their coverage.

“If the TSSA is not going to mandate that, insurers that are insuring buildings with single-speed elevators are going to likely start mandating that from building owners,” said Jackson. “They’re taking on the risk of an injury related to a trip and fall, so I don’t see why it’s any different than a pothole in a parking lot.”

Modernization work can take these devices out of service for anywhere from one to two months, which Guderian, president of Elevator One, noted may require residents with mobility issues in buildings with only one elevator to find temporary alternative accommodations. The cost of upgrading the controls of a single-speed elevator runs between $100,000 and $150,000, as building owners will often simultaneously make other upgrades because it’s cost-effective to do so.

The TSSA reports 55 of the estimated 700 to 1,200 single-speed elevators in Ontario have been upgraded “as a direct result of” the initial order made by the safety authority in 2014. CECA disputes this figure, claiming that roughly 50 per cent of these types of devices have undergone modernization based on a survey of its members, who represent about 80 per cent of elevator maintenance contractors in the province.

Guderian, speaking as president of Elevator One, suggested the lower-than-expected risk level observed by the TSSA in its data could be a result of many single-speed elevators already having been upgraded and under-reporting of incidents for investigation, because the cause of their inaccurate leveling is well known.

Numbers aside, Ray Eleid, elevator consultant, Solucore, observed that corporations and REITs with single-speed elevators in their portfolio likely moved quickly to respond to the order. Meanwhile, small companies that manage one or two buildings — and that are more likely to operate these types of devices — likely held off.

“Yes, there are liabilities associated with single-speed elevators, but one thing that the owner will tell you is that they don’t break down much,” said Eleid. “That’s why they don’t feel the need to modernize, because they’re pretty simple in their circuits, so they tend to run more reliably than the newer stuff.”

In fact, these devices originally leveled more reliably, until the asbestos used in their brakes to prevent glazing was outlawed in the late 1980s, early 1990s, the elevator consultant explained.

The TSSA’s latest order comes as a private member’s bill, the Reliable Elevators Act, makes its way through the Ontario legislature. The legislation — which aims to improve the reliability of elevators old and new by setting deadlines for contractors to complete repairs — has passed the second of three readings and been referred to committee for detailed review and public input.

Despite the otherwise reliable operation of single-speed elevators, there are reasons why Eleid continues to recommend the modernization of these devices, some of which are pushing 50 years old, well past their expected 30-year lifespan.

“When people trip and fall, especially elderly, they get badly hurt, so you do want to modernize these things because it’s better from a liability perspective and also from a safety perspective,” he said.

What’s more, single-speed elevators lack the additional safety brake that acts as a back-up to prevent cabs from crashing into overheads or pits, Eleid added.

The TSSA’s latest order actually continues to recommend the modernization of single-speed elevators too, but as a non-mandatory mitigation strategy. Other non-mandatory mitigation strategies include using audible annunciation to warn riders when the cab fails to stop level and signage to caution tenants about the leveling issues associated with these devices.

If single-speed elevators are not upgraded, they will be required to undergo prescribed maintenance more frequently — at least every two months instead of every three months.

The TSSA order notwithstanding, condo corporations have duties under the Condominium Act to repair and maintain their properties, and to prevent unsafe conditions that could lead to injuries, said Laura McKeen, a partner at Cohen Highley LLP Lawyers. Landlords have similar obligations under the Residential Tenancies Act.

As with most legal questions, building owners have to consider their unique circumstances in determining how to respond to the TSSA order, such as how well their equipment has aged and been maintained, McKeen said.

“In terms of risk management, corporations should be looking at repair and maintenance logs for their elevators to determine whether or not these kinds of retrofits or a different maintenance schedule is appropriate,” she said.

Likewise, McKeen recommended that building owners obtain legal advice specific to their unique circumstances if they are having second thoughts about proceeding with modernization work for which they already have contracts in place — a sentiment echoed by lawyer Leanne Rapley.

“Generally speaking, owners with contracts for modernization and retrofit work will be obliged to fulfill those contracts,” said Rapley.

Rapley, whose firm does elevator liability litigation and counsel, said the TSSA’s recent about-face should not stop building owners from proceeding with upgrades to the controls of single-speed elevators for which they have planned and budgeted. She cited the challenges of maintaining single-speed elevators to code, noting that their leveling function is sensitive to humidity, weather and weight, as well as the costs of sourcing the rare original equipment manufacturer parts.

“In my opinion, that the TSSA ordered the replacement of single-speed elevators was an appropriate recognition of the potential risks and costs associated with it,” Rapley said.

Eleid, the elevator consultant, expects to see increased vigilance from elevator contractors in dealing with these devices, which could lead to an uptick in elevator shutdowns as mechanics face possible penalties from the TSSA for allowing these devices to operate unsafely. And a shutdown could leave a building without elevator service for six months, because that’s how long it takes to get equipment on site for modernization.

“The advice to the owners is: if you have a single speed, stay the course, get it replaced, because there’s a lot of additional exposure there as well and it definitely is going to affect your ability to get insurance and/or an elevator contractor to take care of it,” said Guderian, speaking as president of Elevator One.

Michelle Ervin is the editor of CondoBusiness.

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