In Musa v Carleton Condominium Corporation No. 255 et al.,[1] the issue was whether the Defendant contractor applied the road salt to the driveway and parking areas of the condominium in a sufficiently timely way to avoid or mitigate the formation of icy conditions that would put the residents at risk of injury through slipping or falling.
Facts:
In December 2016, the Plaintiff was involved in a slip and fall accident where he fell on a slippery area in a roadway outside his condominium in Ottawa and fractured his ankle. The Plaintiff’s fall occurred in the middle of the season’s first snowstorm. The Plaintiff alleged that the Defendant contractor’s delay in spreading road salt was unreasonable and allowed dangerous icy conditions to form. The Defendant contractor argued that the application of road salt was reasonably timely in the challenging circumstances.[2]
The parties agreed on the quantum of damages and the trial proceeded on the issue of liability.[3]
Analysis:
- Relevant Legislation
Section 3(1) of the Occupiers’ Liability Act states that an “occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”[4]
Ottawa’s Property Maintenance By-law (no. 2005-208) provides that every owner or occupant of a building shall keep the “surrounding lands free of accumulations of snow or ice that might create an accident hazard.”[5]
In addition, the contract between the subject condominium and Defendant contractor contained a schedule stating that the “contractor shall remove any ice build up that may occur” and that the “contractor agrees to furnish calcium chloride, salt and sand required by the contractor…”[6]
Justice Hackland found that based on the above provisions, the condominium looked to the contractor to manage ice conditions with salt in a reasonable manner.[7]
- Timely Application of Road Salt
Justice Hackland noted that the application of road salt was required in this storm and the contractor applied salt when he visited various properties over the course of the day. The contractor understood it had to monitor weather forecasts on government websites and prepare for how to approach snow removal and ice management during a potential snowstorm. At the time the Plaintiff fell, the snow had been falling for five and a half hours and the contractor had been on site for two hours and had witnessed the accident and warned others of the slippery conditions. However, the road salt was only applied about seven hours after the snowstorm began and one and a half hours after the Plaintiff’s fall.[8]
The employer for the contractor testified that he personally did all road salt applications for fourteen client properties situated all around greater Ottawa. Some properties were more than a thirty-minute drive away from each other. He did not admit to having any particular system to determine the order by which to visit his client’s properties. Finally, he admitted that it was important to apply road salt as soon as possible after plowing because plowing can compress a thin layer of snow and create slippery conditions.[9]
The Plaintiff’s engineering expert cited the best practices ‘Guidelines’ for snow removal contractors from two known industry organizations. The Defendant contractor testified that it had never heard of the Guidelines. Based on information in the Guidelines, the engineering expert confirmed that not applying salt/grit immediately after initial snow removal worsened slippery conditions. Further, he concluded that had the contractor either (i) “pre-salted” or (ii) spread salt concurrently with or immediately after plowing, the hazardous slippery surface could have been avoided. [10] He also noted that use of a salt spreader on the rear of the vehicle plowing or spreading salt immediately after the snow clearing would have met the appropriate standard for salt application.[11] The engineering expert also observed that based on available weather forecasts the night before, the Defendant contractor should arrived to the property much earlier.[12]
Conclusion:
Justice Hackland agreed with the Plaintiff’s engineering expert that that the Defendant contractor created an impacted snow surface on the pavement, which quickly turned into a very slippery iced surface that became hazardous for pedestrians. The contractor was on the premises for at least two hours before the Plaintiff fell, without any salt being applied. In fact, no salt was applied until nearly seven hours after the storm began. The delay in applying road salt was partly due to faults in the contractor’s system, which involved dealing with fourteen properties around the city, making it challenging to apply road salt at all these properties in a timely manner.[13]
Therefore, Justice Hackland found that the defendant contractor had failed in its duty under the Occupiers’ Liability Act to take reasonable care to see if residents walking on the condominium’s roadway were reasonably safe. Given the weather conditions on the day of the incident, the Defendant contractor was negligent in omitting to apply road salt in an appropriate and timely manner, causing a dangerous and risky icy surface to form on a pathway that had been plowed for use by the residents.[14]
[1] Musa v Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030
[2] Ibid at para 1-4.
[3] Ibid at para 1.
[4] Ibid at para 14.
[5] Ibid at para 15.
[6] Ibid at para 16.
[7] Ibid at para 17.
[8] Ibid at para 18.
[9] Ibid at para 24-26.
[10] Ibid at para 35.
[11] Ibid at para 37.
[12] Ibid at para 39.
[13] Ibid at para 41.
[14] Ibid at para 40.
