COURT OF APPEAL FOR ONTARIO
RE: ELEANOR GARDINER, ALAN G. GARDINER, JOHN-BRYAN GARDINER,
MARJORIE GARDINER and FIONA-JEAN GARDINER and HEALEY
GARDINER, a minor, by her litigation guardian, John Bryan
Gardiner (Plaintiffs/Appellants) –and– THUNDER BAY REGIONAL
HOSPITAL, THE GENERAL HOSPITAL OF PORT ARTHUR, WARREN CHANT
and BARRY ANDERSON (Defendants/Respondents)
BEFORE: FINLAYSON, MOLDAVER and GOUDGE JJ.A.
COUNSEL: W. Danial Newton and D. Shaw, for the appellants
Stephen J. Wojciechowski, for the respondents
HEARD: January 25, 2000
On appeal from the judgment of McCartney J. dated February 24, 1999.
E N D O R S E M E N T
[1] We agree with the respondents that the sole issue in the
appeal is whether the trial judge materially misapprehended the
facts in coming to the conclusion that the respondent hospital
had a reasonable parking lot maintenance system which provided
for the reasonable safety of the users of the lot.
[2] The evidence at trial appeared to be directed more to the
implementation of the system for plowing, salting and sanding
than the system itself. Be that as it may, the trial judge
found, on conflicting evidence, that the area in the lot where
the appellant Eleanor Gardiner slipped and fell had, in fact,
been sanded and salted the day before. In support of his
findings, the trial judge had the benefit of photographs and a
video taken on the day of the accident which was put into
evidence by the plaintiffs.
[3] This court also viewed the video and we agree with counsel
for the respondent that it supports the findings of the trial
judge in the following terms:
I accept the defence evidence that the
witness, DeProphetis did in fact, pursuant to
the system that was in place, apply sand to
the parking lot on February 1st in areas
where there were no parked vehicles.
Further, I accept the evidence that
apparently sand had been applied in the area
where the Plaintiff fell. That being the
case, all that could have been done to
protect the Plaintiff after this was to do
more work on the lot, either snow removal
and/or more sanding between the work on
February 1st and the morning of February 2nd.
With conditions having changed very little
between the two days, other than for the
dusting of snow, it is not reasonable to
think that the contractor would feel more
work was necessary unless perhaps he was
alerted to a new situation by the Defendant.
[4] Accordingly, we can find no error in the trial judge’s
reasons. The appeal is dismissed with costs.
Signed: “G.D. Finlayson J.A.”
“M.J. Moldaver J.A.”
“S.T. Goudge J.A.”