Written By: Brandon Pedersen, Associate, and Avery Kavanaugh, Articling Student
7 minute read
In Merkley v St. Lawrence College of Applied Arts and Technology[1] the Ontario Superior Court examined whether the College and its contractors met their legal duty to maintain walkways in icy conditions, and what happens when winter maintenance falls short.
Facts
The Plaintiff in this action, Avery Merkley, was a student at the Cornwall campus of St. Lawrence College of Applied Arts and Technology. In the days leading up to the incident, snowfall had created poor road and walking conditions on campus.
On the day of the slip and fall, Mr. Merkley was dropped off by his mother at Aultsville Hall, a three-storey office building on the College campus that housed a medical office. The roadway leading to Aultsville Hall ran along the edge of a parking area and connected to a sidewalk that led directly to the building’s entrance.
As Mr. Merkley approached the entrance, he walked a short distance on the roadway before stepping onto the concrete sidewalk. Immediately upon stepping onto the sidewalk, his right foot slipped out from under him, causing him to fall to the ground and sustain injuries.
Mr. Merkley described the sidewalk as having a wet appearance and being very slippery. He also noticed pieces of salt on the surface. His description of the surface was corroborated by two witnesses at the scene who noted the difficulty of crossing the sidewalk safely.
The parties agreed that both the College and David Brown Construction Ltd. (the “contractor”) were occupiers for the purposes of section 3 of the Occupier’s Liability Act, RSO, 1990, CO2, and as such they owed a duty to take such care in all the circumstances as was reasonable to see that the Plaintiff was reasonably safe while on the premises.
Issues
The trial related to the issue of liability only. The issue before the Court was whether the surface of the sidewalk where the Plaintiff fell had been properly treated by the contractor for ice buildup in view of existing and forecast weather conditions.
On the issue of causation, the Court considered the following question: “but for the compromised or reduced effectiveness in ice prevention resulting from the defendants using pure salt at the temperatures in question and with no sand mixed with the salt to promote traction, would the Plaintiff have experienced this slip and fall accident?”
The Evidence
The Plaintiff testified that he did not realize he was stepping on ice when he slipped, as scattered salt on the sidewalk indicated to him that it was safe to proceed. His account of the slippery conditions was corroborated by the two witnesses, who each described having to shuffle carefully across the sidewalk to reach him.
The defence called several witnesses involved with winter sidewalk maintenance:
- An employee of the contractor confirmed that he cleared sidewalks with a tractor and spread salt about four hours before the Plaintiff’s fall. He acknowledged that the practice was to use only salt, at the contractor’s direction.
- College Facilities employee responsible for overseeing the contractor admitted he had no expertise in winter maintenance. Although the Service Contract required the use of “ice melt,” the College permitted the contractor to use only salt without explanation or proper basis for that decision.
- A campus security officer testified that snow clearing and salting had been done and that conditions were “fairly good,” though he cautioned it was still necessary to walk carefully. The Court found this explanation to be self-serving and not credible, especially because the contractor’s practice was to use salt only on sidewalks.
- The contractor’s supervisor admitted he was unfamiliar with best practices or guidelines on ice control. He confirmed the contractor never used ice melt, never measured sidewalk temperatures, and did not keep records as required. He confirmed that in 2015, the College and contractor agreed salt could be used instead of ice melt. He also described snowfall of about 7 cm on the days leading up to the incident and confirmed snow clearing had occurred before the Plaintiff’s fall around 11 a.m.. The College had not provided the required checklist for snow removal, but both parties operated with the contractor’s own records instead.
The Court also heard from two expert engineers, one on behalf of the Plaintiff, and one for the defendants.
The two experts agreed that contractors must follow accepted winter maintenance practices, monitor weather closely, and apply materials appropriately. Salt is only effective within certain temperature ranges and must be applied with care. Guidelines from the Transportation Association of Canada (TAC) and the Canadian Parking Association were recognized as relevant best practices.
The College’s service contract specifically required the use of “ice melt,” not salt, for sidewalks. Despite this, the contractor—and with the College’s approval—used only pure salt. The Court found that this was a clear deviation from both the contract and industry standards.
The temperatures on the day of the incident were between –12°C and –10°C, well below the effective range of salt. Expert evidence confirmed that under such cold conditions, sand (with some salt to prevent clumping) would have been the proper treatment to provide traction and reduce risk. The Court also rejected the argument that salt could substitute for sand as an abrasive.
Ultimately, the Court concluded that relying on salt alone at such low temperatures posed a significant safety hazard. Contractors are expected to follow contracts, adhere to best practices, and choose treatments—like sand/salt mixtures or specialized deicers—that match the weather conditions.
The Court’s Conclusion:
The defendants owed a duty of care to Mr. Merkley prescribed by s. 3 of the Occupiers’ Liability Act. To meet this duty, occupiers were required to show they had a proper system for winter maintenance and that it was working at the time of the incident.[2]
In this case, the defendants failed to do so. Instead of following the Service Contract which required ice melt or a sand/salt mix, they relied solely on pure road salt, even in very cold conditions when salt is ineffective. On the morning of the fall, temperatures had been -10°C or colder for several hours. According to the TAC guidelines, salt alone was an appropriate treatment. Even if it had “some effect”, it likely created melting followed by re-freezing, increasing slip risks
The Court found that the defendants’ inadequate use of salt, without sand or ice, created unsafe conditions that caused Mr. Merkley to fall. The defendants were therefore found liable for breaching their obligations under the Occupiers’ Liability Act.
Key Takeaway
Occupiers cannot simply rely on showing that some winter maintenance was done. Rather, they must prove they had a reasonable and effective system in place, consistent with contractual obligations and recognized best practices.
If you have been injured in a fall, you don’t have to face your injuries alone. Contact our experienced team today to explore your options and learn how we can help.
SOURCE:
[1] Merkley v St. Lawrence College of Applied Arts and Technology, 2025 ONSC 4368
[2] Waldick v. Malcolm, [1991] 2 SCR 456 and Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030.
