Fridays with Rogers Partners

At our weekly meeting, Annie Levanaj discussed the recent decision of the Ontario Superior Court in Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030.

Overview

This case involved slip and fall accident that occurred on the morning of December 5, 2016 at 9:30 am. The plaintiff, Mr. Musa, fell on a slippery area in the roadway outside his condominium while walking to his parked car.

The plaintiff brought an action in negligence against the condominium corporation and the condominium’s snow removal contractor, Exact Post Ottawa Inc., (the contractor). The contractor accepted that the condominium’s winter maintenance obligations were delegated to it and that it was deemed an occupier of the property under the Occupier’s Liability Act, R.S.O. 1990, c.O.2.

Background

The accident took place after the first snowstorm of the season. The plaintiff resided in the condominium building where each resident had its own driveway and there was a communal parking lot for visitors. The plaintiff had parked his car in the visitor parking area on the day in question. That morning, he had seen a snow removal vehicle working on the premises.

The plaintiff began walking on the plowed lane on the roadway when he lost his footing and fell. The plaintiff was able to get up from the fall and made it to work where his employer noticed he was injured. The plaintiff attended the hospital afterwards.

Mr. Newman was the operator of the snowplough, and had seen the incident. He testified that at the time of the accident he was clearing up the snow buildup. He had been working for 2 ½ hours that morning but had not salted the path during this time. Mr. Newman testified that after the accident, he warned another resident not to walk her dog along the “very slippery” laneway.

Mr. Newman testified that he was not assigned to spread any road salt or grit on the paths and that his snowplough did not come equipped with a salt spreader. Maintenance duties were divided between Mr. Newman and the owner of Exact Post, Mr. Mitchell.  Mr. Mitchell had a salt spreader on the back of his truck and would apply salt when he got to the property.

Issue

The issue for the court was whether on the day of the accident, the contractor discharged its duty of care to the plaintiff with its snow clearing and salting operations on the property. 

The plaintiff’s position was that the contractor’s delay in spreading the road salt was unreasonable in the circumstances. An expert witness supported the plaintiff’s argument.

The defendant contractor argued that the application of the road salt was reasonable and timely given the challenging circumstances that existed on the morning in question and therefore was not the cause of the plaintiff’s injuries.

Court’s Analysis

It was clear that the contractor was an occupier of the premises as per s. 1(b) of the Occupiers’ Liability Act. Occupiers of property are required to take reasonable steps to ensure people entering onto the property are safe. Ottawa’s Property Maintenance By-law also states under the heading “Snow and Ice”:

Every owner or occupant of a building shall keep the roofs of the buildings and the surrounding lands free of accumulations of snow or ice that might create an accident hazard

There was a contract in place between the condominium corporation and the contractor for snow removal services outlining the contractor’s maintenance responsibilities. The contract stipulated that the condominium looked to the contractor to manage the ice conditions after a snowfall. Mr. Mitchell testified and accepted that maintenance responsibilities were delegated entirely to them.

Mr. Mitchell’s Testimony

Mr. Mitchell testified that he maintained 14 properties and had several snowplough operators dispatched to clear the snow among those properties. Mr. Mitchell was solely responsible for the road salt application as his truck was the only one with a salt spreader but on occasion, he would call the operators to administer salt by hand. He indicated that he never received formal training for snow removal and did not believe there was a real science behind it.

In his examination for discovery, Mr. Mitchell acknowledged that it was important to apply road salt as soon as possible after plowing since plowing can compress a thin layer of snow and could create a slippery film on the road. The court stated that this admission went directly to breach of duty in failing to quickly apply road salt to slippery recently plowed areas. Mr. Mitchell testified however that he believed that plowing must be completed before applying road salt or else it would be plowing away the salt.

Expert Witness’s Testimony

The plaintiff called on expert, Dewan Karim, a civil engineer with expertise in winter maintenance standards in Ontario and pedestrian safety. Mr. Karim stated that Mr. Mitchell could have avoided the ice situation and met the standard of care by either pre-salting the driveway and parking areas, or by making sure that road salt was spread concurrently with the plowing. Mr. Mitchell did neither.

In addition, Mr. Karim testified that Mr. Mitchell could have applied salt with a salt spreader on the rear of the vehicle as the plowing was done. Additionally, Mr. Karim opined that weather forecasts should have alerted Mr. Mitchell to arrive on the property earlier than he did. The court found that Mr. Karim’s opinions were supported by best practices guidelines – CPA guidelines and TAC guidelines.

The court conducted a best practices analysis. Justice Hackland stated that there was no question that the application of road salt was required in this situation and that as  a commercial snow removal contractor, Mr. Mitchell knew he had to monitor weather forecasts on government websites to time the services properly.  The court accepted that Mr. Mitchell did monitor the weather sites and was aware of the expected storm.

Justice Hackland highlighted that at the time of the incident, snow had been falling for 5 and ½ hours and Mr. Newman had been working for 2 hours. While Mr. Mitchell did eventually apply the salt, he did so long after the snowfall, at 10:50 am – 7 hours after the snowstorm first began and 1 ½ hours after the plaintiff fell.

The court accepted the expert’s conclusions that when Mr. Newman cleared a pathway for residents, his heavy box plow compacted the remaining snow, allowing it to freeze and create a very slippery walkway for pedestrians. The court concluded on a balance of probabilities that by the time Mr. Mitchell arrived, a thin layer of ice had developed on the plowed areas.  The back and forth actions of the front-end loader also compacted the snow and was conducive to ice formation.

Conclusion

The court concluded that the risk of a slip and fall was foreseeable. The court ultimately found that the contractor had failed in its duty under the Occupier’s Liability Act to take reasonable care and ensure residents walking on the condominium’s roadways were reasonably safe.

The defendant breached his duty to carry out snow and ice responsibilities by failing to apply salt to the areas in a timely manner, which allowed dangerous ice to form. This was the proximate cause of the plaintiff’s slip and fall injuries. The court rejected the defendant’s argument of contributory negligence against the plaintiff.

Takeaway

This decision provides guidance to occupiers on what constitutes reasonable winter maintenance standards. Occupiers are responsible for ensuring areas frequented by pedestrians are well maintained and that hazardous winter conditions are noted and dealt with promptly.