Occupier negligent in failing to timely salt icy roadway: Ont. CA

Tenant falls and fractures ankle on slippery surface outside his condominium

Occupier negligent in failing to timely salt icy roadway: Ont. CA

The Ontario Court of Appeal upheld a judge’s findings that an occupier was negligent for its failure to timely apply road salt on a roadway, which caused a person to slip and fall on the dangerous icy surface.

The plaintiff in this case was walking to his car during a snowstorm in Ottawa in December 2016. He slipped and fractured his ankle on a slippery roadway outside his condominium, which was owned and operated by Carleton Condominium Corporation No. 255. At the time, the roadway was plowed but not salted.

Exact Post Ottawa Inc., a snow removal contractor, provided winter maintenance services to Carleton through a winter maintenance agreement. Carleton wholly delegated to Exact Post its obligations relating to the winter maintenance of the condominium.

The plaintiff sued Carleton and Exact Post. The parties agreed on damages but disputed the issue of liability. Exact Post was considered an occupier of the condominium property under Ontario’s Occupiers’ Liability Act, 1990.

A trial judge of the Ontario Superior Court of Justice made the following findings:

  • Given the weather conditions that day and its decision not to pre-salt the roadway before the storm, Exact Post had to apply road salt at the same time as or very promptly after plowing the snow
  • Exact Post was negligent in failing to appropriately and timely apply salt to the plowed areas
  • Exact Post applied salt around seven hours after the snowstorm started, 3.5 hours after the arrival of the operator in charge of clearing snow, and 1.5 hours after the plaintiff’s fall
  • Exact Post had an inherent problem in its system for applying salt to client properties, which led to the delay in this case
  • The delay caused a dangerous icy surface to form on the roadway and created an unreasonable risk of injury by slipping and falling

Salt not timely applied: court

In Musa v. Carleton Condominium Corporation No. 255, 2023 ONCA 605, the Ontario Court of Appeal dismissed the appeal. First, the appellate court ruled that the trial judge committed no palpable and overriding errors in his determination and application of the standard of care of reasonableness.

The trial judge correctly framed the issue as whether Exact Post applied the salt to the roadway in a timely enough way to avoid or to mitigate the formation of icy conditions that would put the residents at risk of injury through slipping and falling, the appellate court decided.

The trial judge properly focused on the timing of the application of the salt after the completion of the plowing, specifically on the lag between the clearing of snow and the application of the salt, the appellate court said. He was entitled to conclude that the application of salt was not timely or appropriate, the appellate court added.

Second, the appellate court held that the trial judge did not misapprehend the evidence of the plaintiff’s expert witness and did not improperly fail to consider the evidence regarding contractual obligations.

The trial judge properly considered the ruling in the slip-and-fall case of Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, the appellate court said. In that case, the Supreme Court of Canada listed factors relevant to assessing reasonable care, including the weather, the time of year, the property’s size and nature, the cost of preventive measures, the quality of the plaintiff’s footwear, and the pathway’s length.

The thrust of the trial judge’s analysis was in line with the contextual analysis in Waldick even though he did not explicitly cite that decision, the appellate court concluded. These factors informed his decision, the appellate court added.

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