This Ontario Court of Appeal decision stems from an incident where the Plaintiff was walking to his condominium parking lot during a snowstorm and slipped and fell. As a result, the Plaintiff fractured his ankle, and sued both his condominium, Carleton Condominium Corporation No. 255 (“Carleton”) and its winter maintenance company, Exact Post Ottawa (“Exact Post”).
The Slip and Fall
Ottawa’s first snowstorm of the year began at 4:00 a.m. on December 5, 2016. Mr. Newman of Exact Post arrived at the Plaintiff’s condominium (the “premises”) at 7:30 a.m. to plow and clear the snow. At 8:34 a.m., Mr. Newman phoned Mr. Mitchell, the owner of Exact Post, to let him know that he had almost finished plowing and that the premises was ready to be salted. Mr. Mitchell was personally responsible for salting all fourteen properties that Exact Post was contracted to. As a result, Mr. Mitchell arrived at the premises at 10:00 a.m. At 9:30 a.m., in the time between Mr. Newman phoning Mr. Mitchell, and Mr. Mitchell arriving to salt the premises, the Plaintiff slipped and fell on an unsalted roadway.
The Trial Court’s Decision
At trial, the Court found that Exact Post was an “occupier” of the premises and was subject to Section 3(1) of the Occupiers’ Liability Act. This section imposes a duty upon an occupier to ensure that visitors to their premises are reasonably safe.
When Mr. Newman plowed the premises, the plow compacted the remaining snow on the pavement. The snow quickly froze and formed a slippery film of ice, creating a hazard to pedestrians. Expert evidence indicated that this hazard could have been prevented if Exact Post had either pre-salted the roadways or applied salt concurrently with, or immediately after, plowing the premises.
The Court found that Mr. Mitchell’s attempt to personally salt all fourteen properties Exact Post was contracted to, meant that he was unable to arrive at the premises sooner, which resulted in a failure to salt the premises in a timely fashion. It was this failure, coupled with Mr. Mitchell’s decision not to pre-salt the roadways, that allowed ice to form and led to the Plaintiff’s eventual fall. As a result, the Court held that Exact Post breached its duty to take reasonable care to ensure that residents walking on the premises were reasonably safe.
The Ontario Court of Appeal
On appeal, Exact Post submitted that the trial judge held it to a standard of perfection by requiring it to attend the premises at 6:00 a.m. to salt. The Court dismissed this argument. The Court found that the trial judge held that it was reasonable to expect Exact Post to have started plowing and salting the premises earlier than they had done, given the time at which the storm started and the fact that they had decided against pre-salting.
Ultimately, the Court found that the trial judge correctly focused on whether Exact Post had applied salt to the roadway in a timely fashion to mitigate the formation of hazardous conditions and dismissed the appeal.
How Can McLeish Orlando Help?
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