Court File and Parties

Court File No.: C-1859-12 Date: 2016-04-29 Ontario Superior Court of Justice

Between: Gregory Cannon, Plaintiff – and – Cemcor Apartments Inc. and Myles Property Management Inc., Defendants

Counsel: Peter Denton and Lindsy McNicoll, for the Plaintiff Howard Lightle, for the Defendant, Cemcor Apartments Inc.

Heard: April 18 to April 22, 2016 and April 25, 2016

Judgment

CORNELL, J.

Introduction

[1] This is a slip/fall case arising out of an incident that occurred at the Benvenuto apartment building in Sudbury, Ontario, on January 18, 2012, (the “premises”). The plaintiff suffered a broken leg as a result of his fall. The plaintiff says that his fall was caused by the landlord failing to properly maintain the apartments’ parking lot in a safe condition. In accordance with the reasons that follow, the plaintiff’s claim is dismissed.

Issues

[2] Did the defendant have a reasonable policy in place to provide proper winter maintenance for the parking lot where the fall occurred?

[3] If there was a proper winter maintenance policy in place, was it reasonably followed in January of 2012 when this incident occurred?

[4] If the answer to either of the preceding questions is no, was there any contributory negligence on the part of the plaintiff?

Procedural Matters

[5] The plaintiff originally sued Cemcor Apartments Inc. (“Cemcor”) and Myles Property Management Inc. (“Myles”). Cemcor is the owner of the residential apartment in which the plaintiff resided. Myles is the contractor hired by Cemcor to provide winter maintenance for the apartment building’s parking lot. Shortly before the trial started, Myles was released from the action.

[6] Also shortly before trial, damages were agreed upon with the result that the trial proceeded on the issue of liability only.

Procedural Issue

[7] The plaintiff filed a jury notice. During the course of the plaintiff’s counsel’s opening address to the jury, certain irrelevant and inappropriate comments were made with the result that Cemcor moved for a mistrial. Rather than grant such relief, I proceeded to provide a caution to the jury.

[8] During the course of the plaintiff’s evidence, certain questions were put and answers provided that covered the same area of irrelevant and inappropriate subject matter that could be used for no purpose other than to try and create sympathy for the plaintiff. I granted defence counsel’s motion for a mistrial following which the plaintiff elected to proceed with a judge alone trial.

Background

[9] The apartment building in question has approximately 143 residential units and 2 commercial units. Although the formal entrance is in the front of the building, the parking area is in the rear. The parking area is tiered on three levels. These levels descend from the apartment building. It is a large parking lot consisting of approximately 170 parking spaces. The parking lot is on a hill that has south/southeast exposure.

[10] The plaintiff lived in one of the residential apartments with his mother. He was unemployed at the time of the accident. In 2009 he had been involved in a ski accident that resulted in a fracture to his left knee.

[11] From January 17th until the 20th, 2012, Sudbury received a significant snowfall.

[12] The lease provided that it was the landlord’s responsibility to maintain the parking lot. Despite this, Mr. Cannon took it upon himself to use a snow-float (also known as a snow scoop) to clear the snow in front of and beside his car as well as his mother’s car on the day in question. He was assisted in this task by his adult niece.

[13] After removing between eight and twelve scoops of snow had been removed, his niece went back to the apartment to get a drink of water. During her absence, Mr. Cannon testified that he was using the snow-float to remove heavy, wet snow when his left leg slipped on some ice and his right leg crumpled beneath him. When he realized he was unable to stand, he used his cell phone to call his niece for assistance. Mr. Cannon was removed by ambulance to a hospital where it was determined that he had broken his leg.

[14] When asked how the fall occurred, Mr. Cannon stated that his foot hit a patch of ice that caused him to slip and fall.

[15] At the time of the incident, Mr. Cannon was wearing winter boots.

[16] I now turn to a consideration of the issues that have been raised.

Analysis

Was there a reasonable policy in place?

Terms of the Contract

[17] There was a verbal contract that was put in place approximately one year prior to the incident when Cemcor purchased the building. The agreement required Myles to attend at the property and plough when there was a snowfall accumulation of five centimeters.

[18] Sand was to be applied when required. The sand that was applied also contained a quantity of salt in order to prevent the sand from freezing in which case it could not be applied.

[19] A total lot clean up (a “Clear”) would be undertaken when there was a snow accumulation of 10 to 15 centimeters. A Clear would be undertaken when requested by the apartment superintendent who resided on the premises. A notice would be posted 24 hours prior to the Clear that required all tenants to remove their vehicles from the parking lot by the following morning so that the parking lot would be empty the following day.

[20] Cemcor had a policy that if a tenant was elderly, infirm or for any other reason was unable to move their vehicle, a set of keys was to be left with the superintendent so that such individuals would not be putting themselves in harm’s way in order to move their vehicle after a notice had been posted when the parking lot may have been in a hazardous condition.

[21] Myles was paid on an hourly basis, not on a flat monthly or seasonal rate. The evidence indicates that no attempt was ever made to limit Myles’ efforts to maintain the parking lot. All bills rendered by Myles were paid by Cemcor without complaint.

Contractor’s Experience

[22] Upon taking ownership of the apartment building in 2011, Cemcor contracted with Myles to provide winter parking lot maintenance from October until April in each year. Myles is owned and operated by William Snow, someone who had been in the snow removal business for approximately ten years at that time. Myles was known to Cemcor as it had provided winter maintenance to other apartment properties that had been managed by Cemcor’s owner, Jason Ceming.

[23] In the winter of 2011/2012, Myles had approximately 32 parking lot winter maintenance contracts.

[24] There were five employees, including Mr. Snow, the owner/operator of Myles.

[25] Myles was well equipped with equipment that included four trucks with V-ploughs as well as a front-end loader. Two of the trucks had sanding equipment. There was nothing in the evidence to suggest the equipment was not operational or in good repair.

[26] Mr. Snow testified at some length. He testified that either he or an employee would regularly attend at the premises to see if any work was required. He testified that if he felt that conditions in the parking lot warranted a Clear, he would have a conversation with the superintendent to address the issue. It is abundantly clear to me that Mr. Snow takes his duties very seriously and that he approaches his work in a very professional, responsible and conscientious manner.

Lane Clearing

[27] In accordance with the ploughing policy, Mr. Snow testified that the laneways adjacent to the parking spots would be cleared when there was an accumulation of snow that amounted to approximately five centimeters. He indicated that sometimes this work would be undertaken when less than five centimeters of snow had accumulated if the circumstances warranted that work being undertaken.

[28] When initial work of this nature was required, Mr. Snow indicated that particular attention would be paid to maintaining the laneway that was on a hill as this laneway provided ingress and egress to the property. At the same time, particular attention was paid to keep the entrances clear of snow banks that may have been created by municipal ploughs clearing the roadway.

[29] The trucks were equipped with V-ploughs. When initial ploughing of the laneways began, the plough would be placed in an inverted V position to allow the snow to be collected and removed rather than being ploughed to one side. This would continue until such time as the center area of the laneway had been cleared. Once this had been done, the plough blade was placed on an angle to allow the plough to proceed approximately one foot away from parked vehicles or other obstructions and to push the snow into the center of the laneway. This would minimize the creation of any snowbank in front of the parked vehicles. Once the snow had been ploughed into the center of the laneway from both sides, then once again, the plough would be placed in an inverted V position and the snow would be removed from the center of the laneway. If conditions warranted such work, the laneways would be sanded once the ploughing had been completed.

Back-Blading

[30] Although there was no specific requirement in the oral agreement in place between Cemcor and Myles, Mr. Snow testified that from the time that he assumed responsibility for the winter maintenance of the parking lot, it was his practice to back-blade when conditions permitted.

[31] Back-blading involved clearing parking spots when there was at least one foot clearance on either side of the plough blade. If there was sufficient space to permit back-blading to be done, the plough would drive into the parking spot, lower the blade and back out pulling as much snow as possible into the laneway. Mr. Snow candidly acknowledged that back-blading is not as effective as ordinary ploughing due to an inability to get weight on the blade.

[32] If sufficient parking spaces were empty that ploughing could be conducted in the usual manner, Mr. Snow testified that this work would be undertaken at the time that the laneways were ploughed.

Sanding

[33] Mr. Snow explained that a sand/salt mixture was used in order to prevent the sand from freezing. Myles had two trucks that were equipped with sanding equipment. After the snow had been ploughed, sand would be applied to the laneways if conditions were such that it was required.

[34] If there was sufficient space between the parked cars, the parking spaces themselves would be sanded if conditions warranted.

Lot Clear

[35] The ploughing policy required that when the snow had accumulated to a depth of 10 to 15 centimeters, arrangements would be made to have a lot Clear. Mr. Ceming testified that he had discussed this policy with Mr. Snow. In his evidence, the superintendent, Mr. Hawrelluk was unaware of this policy. Mr. Hawrelluk testified that it was his responsibility to “eyeball” the parking lot and arrange for a Clear when conditions warranted. Mr. Snow testified that he would talk to Mr. Hawrelluk to discuss whether a Clear was required.

[36] The evidence provided by both Mr. Hawrelluk and Mr. Snow indicated that the 10 to 15 centimeter accumulation policy was not absolute. It would depend upon the “variables”. These variables included the condition of the parking lot and the depth of snow. It also depended upon the forecast weather. Was it going to be warmer or colder? Was there more snow in the forecast? All of these variables would be taken into consideration in determining whether it was appropriate to conduct a lot Clear.

[37] If it was determined that a lot Clear was required, a notice would be posted in various places in the apartment building providing the tenants with 24 hours’ notice that they would be required to remove their vehicle by the following morning. Mr. Hawrelluk testified that the compliant rate was excellent.

[38] Once the parking lot was clear of vehicles, the ploughs and front-end loader would come in to clear the entire area. As the front-end loader was heavier, it was used in areas where humps of snow had accumulated in order to remove as much of the snow as possible. Once all of the snow had been removed, the entire parking lot was sanded.

Assessment of the Policy

[39] The plaintiff takes the position that the policy was unreasonable for a number of reasons.

[40] First, the plaintiff points out that Mr. Hawrelluk did not actually measure the snow from time to time, he simply “eyeballed” conditions to determine what maintenance might be required. Second, the plaintiff points out that Mr. Hawrelluk did not keep any records of his observations or the work that was undertaken by Myles. Third, the plaintiff points out that Mr. Hawrelluk was not aware of the policy that required that there be a Clear when there was a snow accumulation in an amount of 10 to 15 centimeters.

[41] The difficulty with this position is that it focuses on form rather than substance.

[42] As I have previously pointed out, Cemcor hired an experienced and conscientious snow removal contractor. Laneways were cleared when snow had accumulated to a depth of approximately five centimeters. Sanding was undertaken as required.

[43] There was an experienced superintendent who lived on site who constantly monitored the condition of the parking lot. The superintendent and contractor spoke to one another when necessary to discuss any parking lot maintenance that might be required.

[44] In the five years that Mr. Hawrelluk has been superintendent, he testified that he has received one complaint about winter conditions in the parking lot. On the other hand, he testified that he had received a number of compliments on how the parking lot was being maintained after Myles took over this responsibility.

[45] In the five years that he has been superintendent, Mr. Hawrelluk testified that he is only aware of two people who had slipped and fallen in the parking lot, including the plaintiff.

[46] The introduction of the Occupier’s Liability Act, R.S.O. 1990, c. O.2, significantly changed the law in this area. In McErlean v. Sarel it states a p. 6, para. 39, the “rigid and formalistic common law classifications of trespassers, licensees and invitees…” was replaced with the requirement that general negligence principles be applied including the test of reasonableness.

[47] To paraphrase s. 3(1) of the Occupier’s Liability Act, I pose the question “Did the occupier landlord take reasonable care to see that persons using the parking lot were reasonably safe while doing so?” This is simply a restatement of the principle established in Waldick v. Malcolm at para. 32 where the court indicated that the examination must involve whether the occupier has “… a reasonable system in place to ensure users will be reasonably safe from slipping and falling due to weather conditions”.

[48] The standard expected of an occupier has been considered and clarified in a number of cases. I agree with the law as stated in the defendant’s factum:

• “. . . neither perfection nor unrealistic precautions against known risks” are required; see Kerr v. Loblaws Inc., 2007 ONCA 371 at para. 19
• “. . . does not extend so far as to require the defendants to remove every possibility of danger. The test is one of reasonableness and not perfection.” see Garofalo v. Canada Safeway Ltd., 1998 CarswellOnt 339 (Ont. Gen. Div.) at para. 28
• “The positive or affirmative duty that is imposed upon the defendant does not extend to the removal of every possible danger. It does not require the defendant to maintain a constant surveillance or lookout for potential danger.” see Garofalo, at para. 31
• “Occupiers are not insurers.” see Salman v. Desai, [2015] ONSC 878 at para. 39
• A winter maintenance system and its implementation does not need to be “foolproof”. see Gardiner v. Thunder Bay Regional Hospital, 1999 CarswellOnt802 (Ont. Gen. Div.) at paras. 34, at p. 8 ; upheld on appeal at 2000 CarswellOnt124 (Ont. C.A.)

[49] I conclude that given the realities and conditions that are experienced in Northern Ontario in the winter, the landlord did have in place a reasonable policy to provide proper winter maintenance for the parking lot.

[50] I now turn to a consideration of the second issue.

Was there reasonable compliance with the winter maintenance policy?

Plaintiff’s Position

[51] It is the plaintiff’s position that the policy, flawed as it was, was not followed.

[52] In support of this position, the plaintiff produced the Environment Canada Records for December 2011 and January 2012. These records were augmented by the testimony of Chantale Cerny, a Climatologist who works at the Ontario Climate Centre. The records that were produced were compiled at a station known as Sudbury A that is located at the Sudbury airport which is approximately 20 to 25 kilometers away from the premises.

[53] These records include total snow recorded on each day as well as the snow on ground for each day. The plaintiff added up various daily snowfalls in an effort to prove that additional maintenance for a Clear was warranted. The plaintiff pointed to the records of December 2011 by way of example:

December 2011 Total Snow (cm) Snow on Ground (cm) Day - 24 16.6 Trace Day - 25 3.2 16 Day - 26 0.0 16 Day - 27 11.6 13 Total 31.4

[54] The plaintiff asserts that an accumulation of 31.4 centimeters of snow over that period of time would require a Clear in accordance with the maintenance policy, yet, no Clear was undertaken.

[55] The plaintiff then pointed to the records for January of 2012 that provided the following information:

January 2012 Total Snow (cm) Snow on Ground (cm) Day - 1 8.2 12 Day - 2 2.8 19 Day - 3 Trace 17 Day - 4 2.6 15 Day - 5 4.4 13 Day - 6 3.4 17 Day -7 1.6 14 Day - 8 3.0 16 Day - 9 2.4 19 Total 28.4

[56] Once again, the plaintiff added up the total snow that had fallen during this period of time in an amount of 28.4 centimeters. The plaintiff asserted that as the snowfalls exceeded the 10 to 15 centimeter amount specified in the policy, a Clear was warranted, yet, was not done.

[57] The plaintiff also pointed to the Hourly Data Report for January 16, 2012, that indicates that between 7:00 p.m. and 9:00 p.m. on that day there was freezing drizzle. In her evidence, Ms. Cerny testified that the difference between freezing rain and freezing drizzle is that the droplets are smaller for freezing drizzle.

The Defendant’s Position

[58] The defendant takes issue with the position put forward by the plaintiff for a number of reasons.

[59] First, the approach undertaken by the plaintiff fails to take into account the so-called variables. These include compaction due to vehicular and human traffic, wind, weather and site exposure.

[60] Second, the defendant points out the fact that the observations taken at the Sudbury airport do not necessarily reflect the conditions at the premises given the fact that the two sites are approximately 20 to 25 kilometers distant from each other.

[61] Third, the defendant points out that the observations taken at the Sudbury airport are taken in a secure, controlled area that consists of a flat, grassy surface that was not subject to compaction by vehicles or human traffic. The parking lot in question is located upon a hill that is oriented south/southeast and is subject to significant compaction due to vehicular and human traffic. The parking lot is subject to periodic ploughing when the snow reaches an accumulation of approximately five centimeters. Mr. Hawrelluk testified that the parking lot is a vast, open area that is frequently scoured by the wind with the result that snow is compacted or removed.

[62] Fourth, the plaintiff points to the freezing drizzle recorded in the weather records on January 16, 2012, as evidence that icy conditions were present in the parking lot at that time. The defendant responds by saying that there was absolutely no evidence whatsoever to suggest the presence of freezing drizzle at the parking lot as, for example, no evidence was tendered by the plaintiff or anyone else to suggest that it was necessary to remove ice from vehicle windshields.

[63] Finally, the weather records themselves demonstrate that even given the controlled factors that exist at the weather station, daily snowfalls do not aggregate to provide an accurate record of the snow on the ground. The daily snowfall totals from December 24th to the 27th total 31.4 centimeters, yet on December 27th the total snow on the ground at the Sudbury airport totalled 13 centimeters. The total snowfall from January 1st to the 9th was 28.4 centimeters, yet the records indicate that the snow on the ground was 19 centimeters. The flaw in the plaintiff’s approach to the subject is self-evident using the weather records alone. When all of the factors are also taken into consideration, it is abundantly clear that the plaintiff’s approach to the subject of how much snow there was on the parking lot is seriously flawed and of no assistance to the court.

The Snow Storm

[64] The weather records filed indicate the following:

January 2012 Total Snow (cm) Snow on Ground (cm) Day - 17 20.0 15 Day - 18 2.5 20 Day - 19 15.8 22 Total 38.3

[65] Everyone agreed that a significant snow event took place on January 17, 2012.

Actual Maintenance

[66] In accordance with the winter maintenance policy, Myles ploughed the laneways on the evening of January 17th in the manner that has been previously described. Ploughing continued on January 18th. In keeping with the practice of Myles, back-blading was undertaken to clear parking spots if there was at least one foot of room on either side of the plough. After the ploughing and back-blading of certain empty parking spots had been undertaken, the laneways were sanded as were parking spots if there was sufficient room to apply sand without damaging parked vehicles.

[67] Notices were posted on January 19, 2012, requiring tenants to remove their vehicles. A complete Clear was undertaken and completed on January 20, 2012, in accordance with the procedure that has been previously described.

Site Conditions

[68] There was a great deal of conflicting evidence that was provided as to the actual conditions that existed in the parking lot on January 18, 2012, the day that this incident occurred.

[69] The plaintiff testified that around 10:00 a.m. he proceeded to the parking lot with his snow-“float” to clear the snow around his car as well as his mother’s car. The snow-float is used to gather the snow in the float and slide the loaded float along the ground to relocate the snow.

[70] Over the course of approximately one hour, the plaintiff moved 8 to 12 snow-float loads of snow from in front of and around both vehicles. At some point in time, he was assisted in this task by his niece, Katherine Cannon.

[71] The plaintiff testified that he was engaged in the snow removal for approximately one hour. He described the snow as being heavy and wet. He acknowledged that the laneway had been previously ploughed. Although Mr. Cannon testified that in the early morning of January 18, 2012, there was no snow bank in front of his vehicle at that time, he testified that by 10:00 a.m. there was a two foot snowbank in front of his vehicle as a result of the laneway being ploughed.

[72] During the one hour or so that he was engaged in snow removal, Mr. Cannon testified that he had no difficulty walking about the parking lot and he did not notice any hazardous conditions because there was “a good pack of snow”.

[73] At no point in time, either prior to or subsequent to the incident, has Mr. Cannon ever filed a complaint about the parking lot maintenance.

[74] During the course of cross-examination, Mr. Cannon acknowledged that “slippery spots are not unusual in Northern Ontario in the winter”.

[75] To the best of his recollection, the Clear that was undertaken on January 20, 2012, was the first Clear of that winter season.

[76] Mr. Cannon testified that there were other tenants out in the parking lot who were also engaged in snow removal at or about the time of the incident. He testified that neither his niece nor any of the other tenants fell during the time that he was engaged in snow removal.

[77] At the end of his cross-examination, Mr. Cannon acknowledged that the rest of the parking lot was “o.k., except for the isolated area where I fell”.

[78] Katherine Cannon testified that the winter maintenance in 2012 was poor. At the time that she was assisting her uncle, there was snow around the vehicle and “little sand”. She later said that there was no salt or sand in either her uncle’s parking spot or her grandmother’s parking spot.

[79] After receiving the call from her uncle, she went down to see what she could do. She got a cushion from one of the vehicles and placed it under him to try to make him more comfortable. When she did this, she saw that there was ice under and around him.

[80] In the 45 minutes that she was assisting her uncle removing snow, she said that she had no trouble with her footing and that she did not slip anywhere that day. Despite this, she went on to say that there were “slippery sections everywhere”.

[81] During the course of cross-examination, she acknowledged that the ambulance attendants indicated that there was only one slippery spot of concern, that being the area where her uncle had slipped.

[82] Geraldine Puiras also testified for the plaintiff. She has lived at the apartment for approximately 13 years. She slipped and fell in the parking lot on January 26, 2012.

[83] She testified that the winter maintenance could have been better if there had been more ploughing and sanding. Despite this, she indicated that she had never filed a complaint about the winter maintenance in the parking lot.

[84] She testified that tenants were required to clean their own parking spots. She testified that it was only when there was a Clear that the parking spots were sanded.

[85] She testified that since 2012, the winter maintenance has improved in that there is more ploughing and sanding.

[86] She testified that parking spots were never ploughed or sanded until there was a complete Clear.

[87] Tyler Pilon is employed by Cemcor to provide maintenance. His first task in the morning is to collect and remove the garbage. As usual, he did this on the morning of January 18, 2012, and had no difficulty while walking across the parking lot. At that time, he was wearing what he described as “skateboard shoes”. He said that type of footwear has less traction than ordinary shoes.

[88] He attended upon Mr. Cannon at or about the time that Mr. Hawrelluk arrived. Mr. Pilon testified that while still wearing the skateboard shoes, he had no difficulty in walking across the parking lot at any point in time.

[89] Mr. Hawrelluk provide much the same evidence. He testified that he had no difficulty walking in the parking lot at or about the time in question.

The Incident

[90] In describing the incident itself, Mr. Cannon stated that during the course of using the snow-float to move some snow, his left leg slipped on some ice and his right leg crumpled beneath him. He testified that he could not see the ice before he slipped and fell due to the presence of a snow cover.

[91] After falling, he used his cell phone to call his niece who had gone to the apartment to get some water. Katherine Cannon was told to call 911 and request an ambulance. A short time after Mr. Cannon fell, Mr. Hawrelluk and Tyler Pilon came out to see if they could assist. When they arrived, Mr. Cannon testified that he stated that he slipped on some ice and thought that he had broken his right ankle.

[92] After the ambulance arrived, Mr. Cannon testified that concerns were raised about the use of the gurney in the area where he was lying due to the presence of ice. Eventually these concerns were overcome, the gurney was lowered to approximately six inches off the ground and Mr. Cannon was placed on it. He was taken to the hospital where he received medical attention and a cast was applied.

Credibility

[93] I reject the testimony of Katherine Cannon.

[94] Her testimony was both internally and externally inconsistent. On the one hand, she said that she had no difficulty walking around the parking lot for approximately 45 minutes. On the other hand, she said that there was “ice everywhere” in the parking lot. This evidence is contradicted by the evidence tendered by other witnesses, including Mr. Cannon himself who testified that he walked about the parking lot for approximately an hour and had no difficulty with the footing until the time that he slipped.

[95] I reject the evidence of Geraldine Puiras.

[96] She testified that the tenants must clean their own parking spot. This was untrue. Myles would back-blade parking spots when space permitted and would clean the entire parking lot when there was a Clear.

[97] Ms. Puiras testified that the only time that parking spots were sanded occurred during a Clear. The evidence indicates that when space permitted, parking spots were sanded after they had been ploughed or back-bladed.

[98] She was quite emphatic that since this incident occurred in 2012, the maintenance was better because there was more ploughing and sanding. The evidence offered by Myles and Mr. Hawrelluk on this point indicated that there has been no change whatsoever in the winter maintenance parking lot program at any point in time during the last five years.

[99] I also have concerns about the plaintiff’s credibility.

[100] He testified that after Mr. Hawrelluk and Tyler Pilon arrived on the scene, he told them that he had slipped on some ice and thought that he had broken his right ankle. Mr. Hawrelluk and Mr. Pilon testified that when they arrived on the scene, Mr. Cannon told them that he had injured his leg on a previous occasion. Mr. Cannon further stated that he was favouring his leg at the time that he slipped and fell. The statements made by Mr. Pilon and Mr. Hawrelluk on this point were essentially the same despite the fact that they did not hear each other testify due to the existence of an order excluding witnesses. Despite being the instructing client, Mr. Hawrelluk was excused from the court room when Mr. Pilon testified so as to provide this safeguard.

[101] At the time that this conversation took place, neither Mr. Hawrelluk nor Mr. Pilon had ever engaged in conversation with Mr. Cannon and would therefore have had no opportunity to learn about the broken leg he had previously suffered as a result of a skiing accident.

[102] When asked about the substantial difference in the content of the conversation between himself and Mr. Hawrelluk and Mr. Pilon, Mr. Cannon categorically denied that he made any statement about favouring a leg or that he should not be out there. Mr. Cannon provided this evidence despite the fact that only 25 days prior to the accident, he admitted that he had reported to his doctor that he had been forced to previously quit his job as a result of pain in his left knee.

[103] On this point, I accept the evidence of Mr. Hawrelluk and Mr. Pilon when they say that Mr. Cannon told them that he was favouring a leg at the time that he slipped and fell.

Assessment of Compliance

[104] The evidence clearly establishes that Myles was following the reasonable winter maintenance program at the time in question. Ploughing of the laneways had taken place during the evening of January 17th and again on the morning of January 18, 2012. Where possible, parking spots were cleared by back-blading. The laneways were sanded after the ploughing had taken place. Where possible, sand was applied in parking spots that had been ploughed or back-bladed.

[105] The plaintiff’s own evidence is that for approximately one hour, he was able to walk back and forth across the parking lot while he removed 8 to 12 snow-floats of heavy, wet snow.

[106] The evidence offered by Mr. Hawrelluk and Mr. Pilon as well as the observations made of the ambulance crew indicated that there was no hazard or problem in the parking lot except in the immediate area where Mr. Cannon fell.

[107] This is consistent with the evidence of the plaintiff himself who testified that the “rest of the parking lot was o.k., except for the isolated area where I fell”.

[108] This is a very large parking lot that provides approximately 170 parking spaces. The evidence indicates that the winter maintenance that was undertaken at the time in question was reasonable as there was just one isolated slippery spot in this entire parking lot.

[109] I conclude that the maintenance policy was reasonably followed in all of the circumstances that existed at the time in question.

Contributory Negligence

[110] In view of the conclusions that I have come to, I need not address this issue.

Conclusion

[111] Mr. Cannon has failed to discharge the onus that rests upon him to establish on the balance of probabilities that Cemcor failed to meet the obligations that are imposed pursuant to the provisions of the Occupier’s Liability Act. In view of this, the plaintiff’s claim is dismissed.

Costs

[112] If the parties are unable to agree on costs, I direct that written submissions be provided. The defendant shall have until May 20, 2016, to deliver cost submissions. The plaintiff shall have until June 3, 2016, to provide written submissions. The plaintiff shall have until June 10, 2016, to provide brief reply submissions, if so advised. Submissions shall not exceed three pages together with supporting documentation.

[113] In the absence of receiving written submission within the time frame set out, it shall be conclusively determined that the parties have resolved the issue of costs between themselves.

The Honourable Mr. Justice R. Dan Cornell

Released: April 29, 2016