Ranger v. Triovest Realty Advisors, 2024 ONSC 1782

Full Decision

The plaintiff, Carmen Ranger (“Ranger”), brought an action pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) for damages she sustained from a slip and fall accident that occurred on January 29, 2013. The defendants named in the action included CPP Investment Real Estate Holdings Inc. (“CPP”), who was the owner of the property, Triovest Realty Advisors (“Triovest”), who was the property management company that was responsible for the maintenance of the property and Pioneer Construction (“Pioneer”), who was responsible for providing snow removal and winter maintenance to the exterior asphalt areas of the property, including the parking lots, roadways and crosswalks. The defendants collectively defended the action. The quantum of Ranger’s damages was settled by the parties and the action proceeded to trial on liability issues only.

Facts

Ranger arrived at the New Sudbury Centre (“the Mall”) near the entrance to the Walmart store just after 3:00 PM on January 29, 2013. While walking towards Walmart, she noticed the parking lot was slippery. She was wearing her winter boots and walked carefully. She used the marked pedestrian crosswalk that funnels pedestrians from the parking lot across the roadway and onto a concrete entrance in front of Walmart. After completing her purchase, she used the crosswalk to get back to the parking lot. While traversing back to the parking lot, her right foot suddenly slipped out from under her and she fell heavily to the ground, injuring her ankle.

On January 28, 2013, there was a significant snowstorm, where snow fell continuously from 12:00 AM to 7:00 PM. From January 28, 2013 at 7:00 PM until 11:00 AM on January 29, 2013, the weather was recorded as being either clear, foggy or cloudy. From 11:00 AM to 9:00 PM on January 29, 2013, the weather was recorded as a combination of freezing rain, freezing drizzle and freezing fog, with only a brief break of just fog at 12:00 PM. The recorded temperature at the time of Ranger’s fall was between -4 degrees Celsius and -3 degrees Celsius.

Pioneer entered into a contract with Triovest (“the Services Agreement”) for the winter maintenance of all of the black asphalt exterior areas of the Mall, including the parking lots, roadways and the subject crosswalk.

Pioneer had a contractual duty to keep records of its work, including a description of the work done, the date and time the work was done, the amount of salt used and where the salt was spread. Extensive snow removal work was done on the Mall property after the snowstorm on January 18, 2013. From 6:00 AM to 4:00 PM on January 29, 2013, only 3 employees did a total of 8 hours of work at the Mall. A sander was used for 2.5 hours to spread a sand-salt mixture over the entire parking lot, including the subject crosswalk. Pioneer employees began working at the Mall at 6:00 AM and finished working at the Mall at 10:00 AM, when they moved onto other properties.

Triovest was required to do regular inspections of high traffic areas and document the status of the exterior areas. The last recorded inspection of the crosswalk by Triovest, prior to Ranger’s fall, was the notation in the log sheet that the “Entrance – Walmart Building” was observed to be cleaned and salted at 6:00 AM on January 29, 2013.

From 10:00 AM to the time of Ranger’s fall on January 29, 2013, there was no snow removal and no sand or salt treatment done on the exterior areas of the Mall, including the subject crosswalk, by any of the defendants.

Liability

Triovest was responsible for designing and implementing a reasonable winter maintenance system for the Mall. Triovest arranged for a winter maintenance system based on the Services Agreement, however, there were three unreasonable deficiencies in the system.

Firstly, there was no specific provision in the Services Agreement as to who is responsible for inspecting and monitoring to determine whether there was, for example, a major snowfall or icy conditions, and it did not include any consideration of the nature or frequency of any possible monitoring or inspection. The representatives for Triovest and Pioneer could not explain their respective obligations to monitor or inspect.

Secondly, the Services Agreement dealt primarily with snow removal. There were triggers in the Services Agreement for snow removal by Pioneer and what Pioneer was required to do regarding snowfall. This was well defined. There were no similar details in the Services Agreement with respect to freezing rain.

Finally, there was no specific provision in the Services Agreement to provide extra sanding, salting, clearing or inspecting of the crosswalk. The crosswalk was simply plowed and sanded in the same manner as the rest of the parking lot. As a high traffic area, it required more attention.

Pioneer had an implied duty to inspect and monitor the Mall property that arose out of the Services Agreement. There was no evidence that Pioneer inspected the Mall property after 10:00 AM on January 29, 2013.

Justice Henderson found that both Triovest and Pioneer failed to meet their obligation under section 3(1) of the OLA. Triovest failed to provide a reasonable winter maintenance system and failed to reasonably inspect the property and/or monitor the work done by Pioneer. Pioneer failed to reasonably inspect and monitor the property and failed to keep the property as close as reasonably possible to ice free.

Justice Henderson indicated that these breaches of the OLA resulted in an unreasonable delay in inspecting and monitoring the property. Moreover, the resultant delay in treatment of the property was a direct cause of Ranger’s slip and fall. The defendants were held to be collectively liable to Ranger for breaching section 3(1) of the OLA.

Contributory Negligence

Despite Ranger being aware of the slippery conditions of the crosswalk, Justice Henderson held that there was nothing more that Ranger could have reasonably done for her own safety and no finding of contributory negligence was made.

Conclusion

The defendants were held to be collectively 100% liable for Ranger’s damages that were already agreed upon.

Written by

Braden Kingdon is an associate lawyer at Avanessy Giordano LLP and has been a member of OTLA since his call to the bar in March 2023. His practice is focused on all areas of personal injury law.