Following this Rule 76 liability only trial, Justice Charles Hackland found the defendants, the property owner and snow and ice removal contractor, to both be liable for breaching their obligations under section 3 of the Occupiers’ Liability Act, resulting in the plaintiff’s injuries from his slip and fall. There was no evidence of contributory negligence on the part of the plaintiff.
Facts
The plaintiff was a 19-year-old university student who was being driven by his mother and mother’s partner to a medical appointment that was held in an office on the campus of St. Lawrence College, on the morning of January 3, 2019. After being dropped off on the roadway approaching the medical office building, he then stepped onto the icy concrete sidewalk leading to the building entrance where his right foot slipped out from underneath him, causing him to fall hard on the ground and suffer a significant right leg fracture.
Evidence
The plaintiff’s evidence, along with the evidence of his mother and his mother’s partner who returned to the scene shortly after his fall to assist him, was that the concrete sidewalk had a wet/shiny appearance, was very slippery and there were pieces of rock salt scattered on the walkway that had not melted the ice. They also described patches of “black ice” which Justice Hackland accepted as connoting that the patches of ice on the sidewalk were not easily identifiable as ice, rather it just looked wet.
Several defence witnesses who were involved with winter sidewalk safety on the campus also provided evidence at trial about the condition of the walkway.
Significantly, the site security officer on campus attended the scene right after the incident and wrote a report which was described by Justice Hackland as ‘a revealing observation’, wherein he described that snow had accumulated over icy patches from previous freezing rain and although their winter snow and ice contractor had been on site clearing snow, sanding and salting the parking lots and walkways, it was still necessary to walk cautiously. He attempted to resile from this observation that ‘it was still necessary to walk cautiously’ in his trial evidence by stating this was an observation he made about the general conditions around campus. As a result, he was found to be self-serving and not credible. His suggestion that the contractor had put sand on the walkways, in addition to salt, was also found not to be accurate based on the defendant’s own admissions.
A snow clearer employed by the defendant contractor provided evidence that this particular sidewalk was among those on which he would have spread salt within approximately four hours before the plaintiff fell and that he would have used twenty-five bags of salt in total over the course of the day, across the various walkways on campus. However, he kept no record of the time that he spread the salt on the sidewalk on this date, or how often, or in what quantity. He acknowledged only spreading salt on the campus sidewalks and walkways, which was a departure from their former practice of using a salt and sand mixture, in an effort to avoid tracking sand and grit into the buildings. Notably, a salt and sand mixture continued to be applied to parking areas on campus, but not to sidewalks or walkways.
An employee with the College’s Facility Management Service, who was responsible for overseeing the contract and ensuring the contractor carried out their duties under the winter maintenance contract, described the walkway where the fall occurred as a high traffic area given the doctors’ offices in the building which were served by the walkway. He acknowledged that the winter maintenance contract required that “snow melt” be used on the walkways, but that the college had agreed to abandon this requirement for walkways in favour of the contractor applying only salt, for reasons unknown to him.
Similarly, the supervisor for the defendant contractor, also conceded that the winter maintenance contract specifically required an ice-melting compound rather than pure salt on campus sidewalks, and further that it mandated that the contractor keep records of services performed, including time sheets and records of materials used. Neither of these contractual obligations were met. He also acknowledged that they never tested the concrete temperature on the sidewalks. Rather, they would monitor the weather conditions using Environment Canada and other networking data and then dispatch personnel to clear snow and manage ice – which they had done on the day of the fall as a result of the snowfall on the evening the day before and continuing overnight. He acknowledged that the contractor had substituted pure salt for ice melt, with the college’s consent, following a meeting that was held in 2015 when they took over the contract.
Both parties retained expert engineers who had experience with winter safety issues including commercial snow clearance and ice management. They addressed the key standard of care issue in the case which 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.
Both experts agreed that proper winter maintenance practices are significantly dependent on anticipated weather conditions and that, if rock salt is used to prevent or mitigate ice formation, it must be applied properly and only when temperatures are appropriate because salt is only effective within a certain temperature range.
The plaintiff’s expert, relied on a Transportation Association of Canada (TAC) publication on best practices and other guidelines, opined that salt alone is ineffective at -10 C or lower, thereby requiring either a sand-salt mix or specialized ice melt. Conversely, the position of the expert for the defendant was that salt still retains some effect down to its eutectic point of -21
C. He also emphasized that the Ontario Ministry of Transportation maintenance manual recommends salt for use on high traffic roadways at temperatures as low as -18 C under the right conditions.
Importantly, on the morning of the plaintiff’s fall, the temperature had been -10 C the hour before the fall occurred; it had been -11 C the hour before that; and -12 C for the duration of the six hours prior to that.
Justice Hackland preferred the evidence of the plaintiff’s expert that the use of salt in these temperatures (-10 C or below) would have been ineffective and not recommended. As was explained, the extreme cold temperatures reduce the salt’s ability to form a brine at the surface and eliminate the bond of ice and compact snow with the concrete surfaces, unless a higher rate of salt is applied or a specialized de-icing chemical. He also accepted the plaintiff’s expert evidence that applying sand with the salt would have improved traction and mitigated the icy sidewalk surface conditions.
The highway maintenance analogy made by the defendant’s expert was rejected. As positioned by the plaintiff’s expert, it was irrelevant to the application of salt on sidewalks because high vehicular traffic on provincial highways can be expected to warm up the pavement surface temperature more than would occur on pedestrian sidewalks in a college campus. It was accepted that the TAC guidelines set out the proper and most relevant standards for salt usage at the location of the sidewalk where the plaintiff’s fall occurred.
It was pointed out by the defendant’s expert that the most relevant metric is surface temperature, rather than air temperature and that surface temperatures can be somewhat warmer than air temperature. Justice Hackland provided that, it would have been ideal for the contractor to have measured surface temperature of the concrete sidewalk using infrared thermometers, however they did not do this. Again, he preferred the conclusion of the plaintiff’s expert that the difference between air and surface temperatures would have been very minimal given the duration of the cold temperatures.
Disposition
The parties agreed that both the college and the contractor were occupiers of the premises and therefore owed a duty of care to the plaintiff as set out in section 3 of the Occupiers’ Liability Act. Relying on Waldick v. Malcolm, 1991 CanLII 71 (SCC), and Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030 (CanLII) affirmed 2023 ONCA 605, it was reasoned that, in such circumstances the occupier has an evidentiary burden to show that it had an appropriate system of winter snow and ice maintenance in place for persons coming on the property and that the system was working properly at the time of the incident.
Justice Hackland found that the defendants did not have a satisfactory system in place for ice prevention on its sidewalks and walkways, as they departed from a thorough ice management plan in their winter maintenance contract in favour of a practice of applying pure road salt to their sidewalks in very cold temperatures, including when precipitation at freezing temperatures was forecast in weather reports (For example: when pure salt is chemically ineffective). Their practice did not include “ice melt” or a mixture of sand to promote traction, which is especially important when salt is not working effectively. Applying salt alone was not the proper choice of treatment in the circumstances. Even if it were accepted that it had “some effect” at these temperatures, there would be some melting of ice, likely followed by re-freezing, which would pose an additional slipping risk.
The plaintiff was also found to have met the causation test on a balance of probabilities. Justice Hackland concluded simply that, had the defendants used a recommended ice mitigation technique in this instance, the sidewalk would have been significantly less slippery and the plaintiff would not have slipped and fallen.
The end result was that the defendants were found fully liable to the plaintiff for breaching their obligations under section 3 of the Occupiers’ Liability Act and the court found no evidence of contributory negligence.
The parties were requested to agree on the costs of the Rule 76 proceeding.
