Court File and Parties

COURT FILE NO.: 16-0617 DATE: 2023/01/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DEBBIE LEE WILSON Plaintiff – and – 356119 ONTARIO LIMITED O/A KEN MILLER EXCAVATING and STRATHALLEN PROPERTY MANAGEMENT INC. Defendants

Counsel: Casey Dorey and Kanon Clifford, for the Plaintiff Lisa Langevin, for the Defendants

HEARD: February 28, March 1, 2, 3, 4, 7 and 8, November 28, 29 and 30, 2022 (via teleconference) at Brockville, Ontario.

REASONS FOR JUDGMENT

Justice A. Doyle

Overview

[1] The plaintiff, Debbie Lee Wilson, claims damages for injuries which she sustained when she slipped and fell in the parking lot of the Brockville 1000 Island mall (“the mall”) on January 27, 2016, and fractured her right elbow. Her claim includes damages for pain and suffering, past and future loss of income, and future cost of housekeeping and lawn maintenance.

[2] The plaintiff’s action is framed in negligence against the defendant, Strathallen Property Management Inc. (“the property manager”), who managed the mall including the parking lot. She has also claimed against the snow removal contractor, the defendant 356119 Ontario Limited O/A Ken Miller Excavating (“the contractor”), who was contracted to carry out winter maintenance of the parking lot at the relevant time. The property owner is not a party to the action.

[3] The issues in this action include:

1. Whether the defendants met their positive duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (Act) to take such care as in all the circumstances was reasonable to see that persons entering the premises were reasonably safe?
2. Whether the plaintiff was contributorily negligent?
3. What are the damages, including: the amount of general and loss of income damages, future costs of care and whether the plaintiff failed to mitigate her damages?

Background

[4] The plaintiff is 58 years of age and works as a school bus driver for the Brockville Bus Lines. At the time of the incident, she worked two shifts per day during the school year: from 6:30 a.m. to 8:30 a.m. and from 1:30 p.m. to 3:30 p.m. She normally collected unemployment insurance benefits during the summer months but had worked the summer of 2015.

[5] On the morning of January 27, 2016, the plaintiff completed her daily bus routine. She woke up at 5:00 a.m. Before departing her home where she normally parks her school bus, she checked the school bus, which included examining the tires and a “walk around” the vehicle.

[6] She picked up the first child at 7:00 a.m. and after picking up all the children on her bus route and dropping them off at St. Mary’s Catholic High School, she headed to the Virgin Mobile Kiosk (“Kiosk”) at the mall arriving at 8:00 a.m.

[7] She knew the mall’s doors opened at 7:00 a.m. for coffee drinkers and to allow “mall walkers” to benefit from exercise by walking in the mall. The mall is an enclosed structure containing a number of stores and other establishments surrounded by the parking lot.

[8] On that day, the weather at midnight was 0 degrees and had dropped below zero by 6 a.m. It was -4 degrees Celsius by 8 a.m. It is undisputed that at some point that morning, it started to snow.

[9] The plaintiff testified that she parked her school bus in the middle of the parking lot and headed towards the front entrance of the mall. After walking for about a minute, she slipped and fell. She slipped and place her right arm out to brace herself and landed on her right arm.

[10] She describes there being an inch of snow on the ground and ice underneath the snow. A man came out of his vehicle, which was in the parking lot, and assisted her in getting up. She used his vehicle to get to standing position.

[11] She proceeded to the Kiosk and sat on a bench inside the mall waiting for it to open.

[12] She did not tell anyone at the mall that morning that she had been hurt after a fall.

[13] She returned to her bus after doing her business at the Kiosk. Once at home, she called her husband to tell him she had hurt her arm. She also called her mother and father and then her daughter around 10 a.m. or 12 p.m. She rubbed A535 medication ointment on her arm as she thought it was a sprain.

[14] At 1:30 p.m., she left home to complete her afternoon run to pick up the children at the school.

[15] That evening, with her husband’s encouragement, she attended the Brockville health clinic and was examined by a doctor who referred her to the Brockville General Hospital for X-rays. The X-rays showed she had suffered from a displaced fracture of her right elbow.

[16] The next day, she called the mall to report the fall and left a voicemail message with Leo Doucet, the mall’s general manager. When they spoke a couple of days later, the plaintiff expressed that she wished compensation as she had fallen and she threatened to seek counsel. Mr. Doucet inquired with the personnel at Shoppers Drug Mart and no one had reported a fall. He later learned that the plaintiff had also contacted Ken Miller, owner of the contractor, asking for compensation.

[17] Over the course of the next several months, the plaintiff visited several doctors and took pain relief medication, including Tylenol. She also attended physiotherapy for 8 weeks, which she terminated in June 2016.

[18] She did not require surgery for her injury.

[19] Due to the fall, she was off work from her employment from the time of the fall to August/September 2016 when she returned to work briefly. She was off again until November 2016.

[20] The plaintiff currently receives regular cortisone treatments and has some limited range of motion in her right arm. She continues to work as a bus driver.

Liability

Legal Framework

[21] Firstly, management and contractors are both ‘occupiers’ under s. 1 of the Act. The definition is:

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

[22] Secondly the duty of care is statutorily prescribed in s. 3 of the Act:

3 (1) 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 on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3.

[23] A review of the case law which deals with slip and falls in snowy/icy conditions is instructive.

[24] The leading case is the Supreme Court of Canada’s decision in Waldick v. Malcolm, [1991] 2 S.C.R. 456, where the Malcolms (the occupiers of the premises) were found liable for the duty of care as they could have anticipated the dangerous condition of the parking area due to the weather conditions (icy storm), but did nothing to make it safer at they could have cleared the ice, salted or sanded a pathway. The Malcolms were found liable for negligence by doing nothing to render the parking area entrance to their house less slippery.

[25] The Supreme Court confirmed that the slip and fall cases are highly fact-driven. Relevant factors include the weather, the time of year, the size of the parking area, the cost of preventive measures, the quality of the footwear worn by the visitor, the length of the pathway, and the nature of the property.

[26] In Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030, a case factually similar to the present case, the court found negligence on the part of the defendant contractor for his omission to apply road salt in an appropriate and timely manner. This resulted in a dangerous icy surface to form on the pathway that had been plowed for use by the residents thereby creating an unreasonable risk of injury by slipping and falling.

[27] In Musa, Justice Hackland found that, at the time of the plaintiff’s slip and fall injury, the defendant contractor had failed in its duty under the Act to take reasonable care to see that residents walking on the condominium’s roadway were reasonably safe. This failure arose from the defendant’s breach of his common law duty to carry out his snow and ice control responsibilities to the best practices guidelines and standards required of a commercial winter maintenance contractor in the circumstances of this case as outlined by the expert called in the case,

[28] In that case, the court found that the defendant was required to see that road salt was applied concurrently with or very promptly after plowing the snow in order to avoid the skiff of snow remaining on the pavement from bonding onto the pavement in the form of ice. The defendant’s employee cleared the early morning path for residents to reach their cars but in doing so, created an “impacted snow surface” on the pavement which turned into a slippery iced surface. This resulted in a slip and fall hazard for pedestrians. The contractor was on the premises for at least two hours before the plaintiff fell, without any salt being applied. Salt was not applied to the area until 7 hours after the storm began.

[29] In Chambers v. Remnant Tabernacle, 2022 ONSC 1482, the court when determining whether the church had maintained a reasonable standard of care said this at para. 38:

[38] While it is not always necessary to have expert evidence on the issue of standards, Chambers has produced expert evidence that, if ultimately accepted, shows that the system in place: namely relying on a custodian and others to salt the property on an as needed basis, did not meet the standard of rendering the parking lot and walkways reasonably safe on the morning of the slip and fall. Nolet opines that other cost-effective measures were available to the Church in these circumstances where there was an admitted shortage of salt supplies in the city, such as applying sand, breaking the ice, and carving grooves into the ice to assist with traction.

[30] The court found that the church did not maintain their salt supply, only purchased it once a year, and that the church had run out of salt before the ice/snowstorm.

[31] In Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (Ont. Gen. Div.), court noted at para. 31 that:

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. The defendant meets its duty to take reasonable care if it takes measures that are reasonable in the circumstances.

[32] In Garofalo, the plaintiff slipped and fell on a piece of plum on the floor. At para. 32, the court found that the defendant had met its duty of care noting that the defendant had:

… in place a maintenance plan which called for cleaning and sweeping when needed, as well as a supervised and controlled cleaning and sweeping schedule which called for a minimum sweeping of the produce area every hour to hour and a half. This included the preparation of log sheets by the person doing the cleaning as to date and time.

[33] The court found at para. 34 “that the defendant had a regular plan for the control and supervision of the produce area and that its maintenance of the said area was reasonable in all the circumstances”, noting further that the sweep log showed the area had been swept 20 minutes before the accident occurred.

[34] In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, at paras. 8, 9 and 10, Perell J. helpfully summarized the law in this area as follows:

[8] If a plaintiff is injured on premises, in order to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury: St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 (S.C.J.), at para. 27; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232; Miltenberg v. Metro Inc., 2012 ONSC 1063; Gohm v. York, 2013 ONSC 7118, at paras 20-21

[9] The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises: Gemelus v. Ecole Secondaire Catholique Renaissance, supra, at para. 21; (Canada) Attorney General v. Ranger, 2011 ONSC 3196, at para. 31; Gohm v. York, 2013 ONSC 7118.

[10] The duty of care imposed on the occupier does not extend to the removal of every possible danger; the standard of care is one of reasonableness and not perfection; George v. Covent Garden Market Corp., at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (S.C.J.); Gohm v. York, 2013 ONSC 7118.

[35] He commented further at para. 29 as follows:

[29] It is important for a court to use common sense when applying the statute: (Canada)Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.

[36] In Winters v. Loblaws Supermarkets Ltd., [2005] O.J. No. 3406 (Ont. S.C.), the court noted that the defendant had a reasonable system in place to protect its customers and that on the day of the incident, the system was operating properly. Justice McCartney discussed that there was an appropriate system in place to reduce the moisture in the store thus reducing the slips and falls. The system in place included the use of a wet vac and regular mopping up of excess moisture that accumulated on the tile floors.

[37] In Dhalla v. North York (City) (2001), M.P.L.R. (3d) 84 (Ont. S.C.), the court held that a reasonable system had to be carried out in a timely fashion taking into account the business hours of operation. The court found that the arena parking lot should have been inspected prior to cars arriving at the arena early for a 7:10 a.m. game.

[38] In Cannon v. Cemcor Apartments Inc., 2016 ONSC 2828, aff’d 2017 ONCA 378, the plaintiff slipped on ice. The court noted the realities of northern Ontario winters and found that the occupier had a reasonable policy to provide winter maintenance for the parking lot and that it had been followed on the day of the fall. The lot was adequately cleared except for the “isolated slippery spot” where the plaintiff fell. Although there was evidence of partial clearing, this was not enough to establish liability on the part of the defendant snow removal company.

[39] At para. 49 of that decision, the trial judge found that:

[G]iven 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.

[40] In (Canada) Attorney General v. Ranger, 2011 ONSC 3196, Power J. stated at para. 31, that the Act does not impose a strict liability regime. The defendants are not expected to achieve a standard of perfection rather the standard is reasonableness in the circumstances.

[41] In Ranger, the court found that the measures taken by the defendants were sufficient to discharge their obligations under the Act. The defendants regularly removed the snow on the walkway in the mornings and evenings and the sprinkling of salt on icy patches or along the entire walkway when they saw ice forming.

Was there a reasonable system in place to ensure safety?

Introduction

[42] The defendants are asking the court to draw a negative inference on the part of the plaintiff for failure to call an expert to opine on the best practices concerning salt application as was done in the Musa case. The defendants rely on Parkinson v. The Corporation of The City of Brampton et al., 2015 ONSC 7241, where the court found that if the weather on the day of a slip and fall was contentious and therefore an expert report may be needed as to the standard of care.

[43] I would observe here that it was open to either party to call expert evidence and neither chose to do so. Expert evidence could have been helpful, but, it in my view, it is not mandatory. In this case, I am satisfied the court can take a “common sense” approach as suggested by Perell J in Nandlal approach based on the available evidence.

[44] I first consider whether the winter maintenance system was adequate by reviewing the provisions in the winter maintenance contract between the property manager and the contractor. Lastly, I will consider whether the system was properly functioning on the day of the fall.

[45] The court is guided by Cannon, at para. 48, where the court listed the factors for the court’s consideration when determining whether a reasonable system for snow removal and maintenance was in place:

a. “. . . neither perfection nor unrealistic precautions against known risks” are required; see Kerr v. Loblaws Inc., 2007 ONCA 371 at para. 19

b. “. . . 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

c. “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

d. “Occupiers are not insurers.” see Salman v. Desai, [2015] ONSC 878 at para. 39

e. 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.)

Discussion

[46] Kenneth Miller [^1], has been a co-owner of the defendant contractor since 1970. He has 35 employees, and his work includes road work, storm sewers, maintenance of parking lots, and residential work such as landscaping and excavation of basements. Off season, he completes snow plowing, salting, and sanding for commercial clients.

[47] He testified that the contract signed on September 16, 2014 (“contract”) was in place at the time of the plaintiff’s fall. The contract set out the guidelines and expectations of the parties.

[48] In Schedule B, titled “Snow Management Service Specifications”, clause 1 to 4 reads:

1. The Contractor shall clear snow from the access roads, sidewalks, parking areas, walkways, and loading areas of the complex which also includes the Kelseys, Galaxy, the current Money Mart/Box Office entertainment, the new building that will house Money Mart, Gabriels and Easy Home areas in the manner hereinafter provided.
2. The Contractor shall commence its snow clearing operations at the complex immediately after the commencement of snowfall or as soon thereafter as required by Owner.
3. The Contractor will provide the complex with priority snow clearing and salting services.
4. On a best effort basis, snow clearing will be completed prior to 7:00 a.m.

[49] Clause 7 in Schedule B states that the priority for snow clearing was the completion of main access roads to allow for fire routes and evacuation, the clearing of sidewalks and then, winter maintenance of parking areas.

[50] Clause 11 in Schedule B states that “The Contractor shall spread salt on a best efforts basis prior to 7:00 a.m. or as required during operating hours of the centre in the following Priority order:” The clause sets out various areas that must be salted starting with main access roads and ending with “balance of parking areas”.

[51] Kenneth Miller testified that the 7:00 a.m. timeline was discussed with Leo Doucet, the mall manager, at the time of the execution of the contract.

[52] They both testified that there was flexibility with respect to the time lines set out in the contract. They testified that the parties to the contract acknowledge that “mother nature” affects snow removal and maintenance and since winter maintenance is weather dependent, the contractor’s aim was to complete the snow clearing/salting by 8 a.m.

[53] Various witnesses confirmed that the mall stores opened at 9:30 a.m. However, the court finds that the defendants were aware that people would arrive earlier as the mall doors opened at 7 a.m. People arriving earlier would include employees, those who attend for breakfast, maintenance workers and mall walkers.

[54] I will consider the tasks and responsibilities of the defendants’ employees.

[55] Mr. Doucet was the senior property manager at the mall from 2012 to 2018.His tasks were to oversee the operations, tenant relations and the day-to-day running of the mall. He also supervises the employees.

[56] Mr. Doucet’s routine included arriving at the mall around 8:30 a.m. and driving through the property to ensure the mall and parking lot were in order. He also walks inside the mall. If there were any issues, he would raise it with management. He does not maintain written inspection notes or reports.

[57] Mr. Doucet said that in his experience with working with Kenneth Miller, one of the owners of the contractor, was very favourable as his company provided exceptional snow removal and reacted appropriately to snow management requirements.

[58] Ricky Miller, an employee of the property manager, normally arrived on the premises between 8:45 a.m. to 9 a.m. and he would drive through the lot in order to look out for hazards. He would also walk around inside the mall to ensure cleanliness and walk outside the mall to ensure trash bins were not filled with exterior garbage. He also understood that the guidelines in the contract were only guidelines, and that the contractor was required to make best efforts to complete the snow/salt maintenance on a timely basis.

[59] Blair Miller has been one of the co-owners of the contractor for 20 years and he is the general manager taking care of pricing jobs, overseeing contracts and training and supervising the employees. They may have 30 full time employees in the summer months and 20 or so employees during the winter.

[60] He was also in charge of monitoring weather reports during the night and he was in the habit of going outside to check on the weather conditions.

[61] He testified that weather varies significantly. It is his practice to be on the ground in order to inspect properties personally and to check conditions on the lot during and after salting. As a general practice, Blair Miller said he would attend at the mall to make sure the contractor maintenance activities had been carried out properly.

[62] He also confirmed that the main purpose of salting is that it acts as an anti-slip agent. It also melts the snow/ice by lowering the freezing point of water. The snow and ice also melt due the heat from the building and sun and traffic. The timing of the activation of the salt once applied to the asphalt ranges from 15 to 45 minutes, depending on the weather conditions and other circumstances.

[63] The contract calls for a pure salt but the application can vary if the conditions are too cold in which case, salt/sand mixture is applied. The contractor uses granular rock salt that is crushed into the size of a thumb nail which permits melting and provides traction. He explained typically, the mall requires 2 to 2.5 cubic yards of rock salt.

[64] David Bradley testified that he has worked for the contractor for 20 years. He drives a rear discharge spreader which includes a one-ton truck with an electric motor and three cubic yards salt spreader located at the back of the truck which spreads 10 to 12 feet of sand or salt on each side of the truck.

[65] Employees were expected to complete logs and indicate the spots they ploughed, salted, or sanded. These logs would be handed into the office and used to complete a monthly statement.

[66] The court finds that the above system in place for snow removal and maintenance at the mall had reasonable checks and balances. There were a number of experienced employees involved in the winter maintenance system for the mall and the system provides for transparency, accountability and oversight. There was an expectation and adherence to the recording of events as the employees were expected to log tasks.

[67] Therefore, based on the above, I conclude that the defendants had in place a reasonable system to provide proper winter maintenance for the parking lot.

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

Was the system functioning properly on the day in question?

Introduction

[69] The parties agree on the following:

a. there was snow on parts of the parking lot at the time of the fall;

b. there were icy conditions that morning that required the application of salt; and

c. to the knowledge of the defendants, the mall doors opened at 7 a.m. to allow customers into the mall.

The weather

[70] On the day in question, Kenneth Miller described the morning maintenance as a “salting event”, meaning there was not enough snow to plough. It was not a snowstorm resulting in an accumulation of considerable snow.

[71] Therefore, he explained the contractor’s main task that morning was to salt the parking lot and sidewalks in accordance to the priorities as set out in Schedule B of the contract.

[72] It was not a surprise weather event as after midnight, the temperatures were steadily dropping as follows:

• 0 degrees Celsius at Midnight;
• 1.7 degrees Celsius at 6 a.m.;
• -3.3 degrees Celsius at 7 a.m.; and
• -4.5 degrees Celsius at 8 a.m.

[73] By describing the event as a “salting event”, there is an implied admission by the defendants that the weather conditions did require an application of salt to prevent ice from adhering to the road surface, provide traction and melt the snow/ice and further, that the contractor was fully aware of this.

[74] Therefore, the court must consider whether the salt application was completed in a proper and timely way on the day of the fall. That is, did management and contractor meet their obligation under the Act to ensure that the premises were reasonably safe for persons using it?

What happened that day?

[75] Kenneth Miller testified that there was rain on the morning of January 27th and there was a forecast of a drop in temperature.

[76] Blair Miller, in his usual course, was monitoring the weather by using his various weather phone applications and checking the weather outside. He could see that it was raining and snowing, that the temperature was dropping and that there would be freezing rain by 7 a.m., the point when mall users started to arrive at the mall. He called David Bradley and Joshua Howe at approximately 5:30 a.m. to tell them to attend to the winter maintenance at their customers’ premises.

[77] On January 27, 2016, David Bradley loaded 3 cubic metres of salt into his truck and was at Loblaws, located at another location, from 6:45 a.m. to 7:35 a.m. The salt was dispersed from his salt spreader with an electrical motor spreader at 180 degrees for a range of 20 yards. As his usual practice, he rolled down the window to ensure the salt was being spread. He arrived at the mall parking lot at 7:30 a.m.

[78] He ran out of salt at 8:15 a.m. and returned to the main office for more salt and was back at the mall at 8:45 a.m., and then completed another area of the parking lot. He also confirms that the salt adds grip and melts the snow. His logs support his evidence.

[79] David Bradley confirmed that it takes 15 to 45 minutes for salt to start working to melt the snow. The main access roads are salted first.

[80] David Bradley reviewed the map of the parking lot (entered in as exhibit 34) and outlined the route that his salt truck operator had completed on that day. The orange lines on exhibit 34 indicate the path that his truck first took that day. The pink lines indicated the second path that the salt truck took. After reloading his truck with salt, which took about 20 to 30 minutes, he applied salt on the route marked as yellow lines on Exhibit 34.

[81] Mr. Doucet confirmed that the main parking lot was the priority, however he did not have any documentation regarding his inspections.

[82] Ricky Miller, who works for management, would do the morning inspections from his truck. The temperature began to drop after midnight and at 6 a.m. it was below zero and there was snow and rain. At midnight it was 0 and at 6 a.m. it was below zero.

[83] Larry Miller, an employee of management, does not recall any issues on the morning of January 27. If there had been an issue, he would have called Ken Miller’s employees.

[84] Joshua Howe, an employee with the contractor, was responsible for salting the sidewalk and he confirmed that employees are expected to attend within 1 hour of being called. His priority is the front entrance near the location of Shoppers Drug Mart as this store is located at the mall’s front doors which open at 7 a.m. On the day of the fall, his logs indicated that there were poor conditions in the exterior of the mall. He saw David Bradley in his truck applying salt in the parking lot.

[85] At 8:22 a.m. on the day of the fall, Joshua Howe took a photo of the parking lot on his phone and sent it to Ken Miller to confirm that he had completed the sidewalks. He does this regularly so that Ken Miller would not have to worry as to whether the work had been completed.

[86] The photo shows the mall sidewalk, main access roads and non-access roads of the parking lot which according to management and contractors had been salted that morning.

[87] Upon reviewing the photo, Mr. Doucet believed that the contractor had met its obligation under the contract and confirmed that the salt had melted the snow/ice on the most of the lot.

[88] The plaintiff’s testimony was that there was an inch of snow and there was ice hidden underneath where she fell.

Conclusion

[89] The court finds that, on the day of the fall, the parking lot was not completely clear. There were parts of the parking lot that were covered with snow.

[90] The court heard evidence from the contractor employees that salt is required to add grip and traction to make the ground less slippery and it also melts snow and ice.

[91] The plaintiff testified that before she fell she observed that the parking lot was white and that the ground was ‘slippery and shaky” and that she did not see salt on the ground.

[92] The photo confirms that, at approximately the time of the fall, the salt had not yet activated on the part of the parking lot shown on right side of the photo where the plaintiff fell.

[93] The salting commenced at 7:35 a.m. and in her view, the salt would not have activated to melt the snow/ice until 7:50 a.m. to 8:20 a.m.

[94] The parking lot photo is the only independent evidence of the state of the parking lot on the morning in question.

[95] The photo shows that the right of the parking lot, which is in the vicinity where the plaintiff fell, was still covered with snow. The salt may be working but the salt is not visible. By the contractors’ own employees’ evidence, the salt had not been fully spread on the parking lot at the time of the plaintiff’s arrival just after 8:00 a.m.

[96] Upon viewing the photo, the court notes parts of the parking lot were still covered with snow. From the view of the photo, the court cannot determine whether those snowy areas were salted.

[97] Either this area had not been salted when the plaintiff fell, or the salt had not activated the melting process of the snow/ice.

[98] On that day, salting had not been completed until 8:22 a.m., 1 hour and 22 minutes after the front doors open and approximately 22 minutes after the plaintiff fell.

[99] It is important to note that although the provisions in the contract are relevant, they do not bind the plaintiff.

[100] The provisions are helpful as the parties agreed on a timeline of 7:00 a.m. for the completion of snow removal and/or sanding of the parking lot.

[101] The contractor did not meet the provisions of the contract and the agreement of a time line of 7:00 a.m.

[102] Leo Doucet acknowledged that the mall doors opened at 7:00 a.m. and mall users would start to arrive at that time. The court finds that it was foreseeable that there could be risk of harm if the snow removal and salting did not occur in a timely fashion.

[103] I am persuaded on a balance of probabilities that on this occasion the defendants failed to ensure that the parking lot was safe for its customers.

[104] I acknowledge that the defendants have led evidence to show that they had a regular regime of inspection, maintenance, and monitoring. They submit that it was a adequate regime given the constant change of weather conditions. This conduct is not to be determined by the fact that the plaintiff fell. The burden of proof of a breach of the Act always rests with the plaintiff, and she has met that burden.

[105] The mall is a commercial premise frequented by clientele, employees and workers on a regular basis. The defendants were aware that the mall doors opened at 7 a.m. and that mall users would be in attendance. The contract guidelines stipulated a timeline of 7 a.m. to complete the snow maintenance and people do commence arriving at the mall after that time.

[106] It is also important for a court to use common sense when applying the statute. Canadian winters are such that people fall all the time without someone being responsible in negligence. Falls on private property are not always a result of the conduct of the owner of the property on which the fall occurs. In Stevenson v. City of Winnipeg Housing Co. (1988), 55 Man. R. (2d) 137 (Q.B.), Krindle J., of the Manitoba Court of Queen’s Bench, at para. 15 where the court observed that there is a requirement that sidewalks be cleared of all snow because “…it would be an unreasonably expensive and impractical response to Winnipeg winters”.

[107] An example of the application of common sense can be found in the Supreme Court of Canada’s decision in Swift v. MacDougall, [1976] 1 S.C.R. 240 at page 241 which approved of comments made in the lower court, the Quebec Court of Appeal by Lajoie J., as follows:

… In my opinion it is setting too high a standard to ask a householder who has taken reasonable care of his stairway to check at all times and ensure that there is not the slightest trace of ice, during the Quebec City winter.

[108] For the above reasons, the court finds that the defendants failed to take such care as in all the circumstances of this case was required to ensure that the parking lot premises were reasonably safe while the plaintiff was in the parking lot

[109] I find there was negligence on the part of the defendants in their omission to apply the salt in a timely manner which caused a dangerous icy surface to form in the parking lot. This created an unreasonable risk of injury by slipping and falling.

[110] I find on the balance of probabilities that this dangerous parking lot condition maintained by a commercial contractor was the proximate cause of the plaintiff’s slip and fall and resultant injury.

[111] But for the salting deficiencies and build-up of salt, I find that on the balance of probabilities, the plaintiff would not have fallen. I am satisfied that on a balance of probabilities that had the salting operation been conducted in a more timely and careful manner in the circumstances in this case, the fall and resultant injuries would not have occurred.

Was the plaintiff contributorily negligent?

[112] In Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711, at para. 81, the court stated that contributory negligence may be imposed on a plaintiff who fails to take precautionary measures in the face of foreseeable dangers.

[113] I find that the plaintiff’s evidence shows that she was wearing new proper winter wear, was not moving in a hurry nor was she carrying many objects.

[114] Nevertheless, I find that the plaintiff was contributorily negligent. She was well aware of the conditions outside. In particular, as a bus driver, she was aware of the winter conditions that morning as not only did she have to inspect her vehicle before she departed from her morning that day but had picked up and driven children to school before she arrived at the mall.

[115] The court finds that the plaintiff did not take any special precautions despite her experience with the winter conditions that morning and her own evidence of the observations of the parking lot that morning, i.e. parts covered with snow. The court finds that there was lack of due care on the part of the plaintiff.

[116] As a person living in Canada familiar with Canadian winters, the plaintiff is aware of the presence of snow and ice on ground. Care is needed when walking outside in the winter especially after or during a storm. In fact, she already had fallen in 2012 on ice and injured her shoulder. She is certainly aware of the perils of walking in the winter time.

[117] The court finds that the plaintiff is contributorily negligent for the fall. I find her liability is 25% and the defendants’ liability to be 75%.

General Damages

Introduction

[118] The contentious issues are: the likelihood that the plaintiff will develop arthritis at the site of the fracture and whether she failed to take any reasonable steps to mitigate her loss of income and whether she has any significant future care needs.

Medical Evidence

[119] On the evening of the plaintiff’s fall, her husband brought her to the local walk-in clinic. The clinic referred her to Brockville General Hospital for an X-ray.

[120] Dr. William Audet examined her that day and noted tenderness in the right elbow and that the X-ray revealed a fractured radial head. He placed her right arm in a back slab splint and sling for four weeks and discharged her home with pain medication.

[121] On February 3, 2016, she followed up at the fracture clinic with Dr. Steven Musset. Surgery was not recommended. Further X-rays performed on that date notes that “the mildly impacted fracture involving the articular surface of the radial head appears grossly unchanged.”

[122] On April 4, 2016, the plaintiff attended the physiotherapy clinic for assistance with pain relief and movement. The physiotherapist, Priyanka Bhatt, noted that the plaintiff’s pain was in the posterior right elbow and that work was needed on the extension. The plaintiff attended 9 sessions and was given a home-based exercise program. Her last session was on June 2, 2016, and the plaintiff testified that she could no longer afford to attend.

[123] In note of May 19, 2016, Dr. Mansworth observed that the plaintiff still had issues and recommended that she continue with physiotherapy and indicated that she was “medically unfit for work” (page 6);

[124] On August 10, 2016, Dr. Mansworth noted that she had “reasonably good range of motion with slight limitation and good strength” (page 6). He indicated that she was fit to drive.

[125] In his interpretation of the X-rays, Dr. Gill noted “mildly impacted fracture of right radial head”. On October 18, 2017, he noted, there was no significant change from previous imaging.

[126] The X-rays of November 9, 2017, show healed fracture and secondary osteoarthritis. She was prescribed increased Tylenol for pain.

[127] Dr. Mark Duford, a general practitioner in Brockville, saw her for the first time on July 18, 2018, and noted that there was pain over the lateral aspect of her forearm and sent her for X-rays. The X-rays showed “irregularity” in the region of the facture. He saw her recently when she said she was experiencing tingling in her right elbow. Therefore, he referred her to Dr. Campbell for cortisone shots which she currently still receives.

[128] In March 2019, the plaintiff was still experiencing generalized stiffness of the elbow. The March 2019 X-ray report stated that “there is no significant interval change in the inter-articular mildly impacted fracture involving the radial aspect of the radial head. There remains a small joint effusion. A small ossicle noted at the ulnar aspect of the joint space between the ulna and trochlea is unchanged. This could be congenital or post-traumatic in nature”.

Past medical history

[129] The plaintiff’s past medical history is significant:

a. She suffers from hypertension, hypercholesterolemia, diabetes and sleep apnea;

b. 1981-1982: she underwent surgery due to a fracture of her right ankle;

c. May 1, 2011, she suffered an injury to her neck and jaw as a result of a basketball hoop falling on her neck;

d. In January 2012, she fell on ice on her driveway and injured her right shoulder. X-rays from March 29, 2012, indicated moderate osteoarthritis of the right acromioclavicular joint and calcific rotator cuff tendinitis;

e. In May 2019, she fell down some stairs and fractured her left ankle for which she wore a boot but required no surgery and she was off work for 9 months; and

f. On December 24, 2020, she was involved in a motor vehicle accident and experienced some soft tissue injuries.

[130] She takes Tylenol for her elbow pain and continues to receive cortisone shots.

Independent medical doctors

Dr. Yardley’s evidence

[131] Dr. Nicholas Yardley, called by the plaintiff, performed an independent medical assessment of the plaintiff and was qualified as an expert in orthopaedic surgery.

[132] He reviewed the medical reports and documents from counsel, had a meeting with the plaintiff and completed a physical examination of the plaintiff.

[133] On page 9 of his report dated September 11, 2019, he stated:

Ms. Wilson’s current level of pain as chronic and I believe at this stage, treatment likely warrants a multi-modal approach. This could include evaluation in a chronic pain facility and may involve the addition of prescription pain medications, also the potential use of injections such as corticosteroid, hyaluronic acid or platelet rich plasma. Ultimately, if these strategies fail and her symptoms become increasingly more severe, she may warrant further surgical evaluation with regard to her elbow, particularly if her osteoarthritis was to advance further. She may require radial head replacement or total elbow arthroplasty. The timing of this is extremely difficult to predict, however.

[134] When discussing the possibility of her underlying symptoms changing over time, he said:

Given the severity of the injuries and the persistence and duration of the symptoms despite treatment, it is reasonable to assume that Ms. Wilson’s symptoms will unfortunately, continue into the foreseeable future. Furthermore, there is the possibility that Ms. Wilson’s condition will deteriorate over time.

[135] In summary, Dr. Yardley confirmed the fractured radial head and compared it to a fractured tile damaged by a heavy weight being dropped on it.

[136] He opined that she is likely to develop arthritis and that her described throbbing pain will continue to impact her range of motion, extension, and flexion in her arm.

[137] In his view of her X-ray, he noted that the “articular surface was not smooth, ragged, less congruent, loss of cartilage on the radius – as step deformity, loss of congruity, further deterioration of cartilage over time, how post traumatic arthritis can form”. He indicated that it showed the early thinning of cartilage, loss of joint space, and more advanced arthritis.

[138] He described issues with her motion flexion and extension of arm that could affect lifting, repetitive work, such as washing floors, and pushing and pulling activities and experiences a sense of weakness when pushing and pulling.

[139] At his reassessment in December 2021, Dr. Yardley completed the same tasks from his initial assessment in 2019, including reviewing the history and reports from counsel. He also interviewed and physically examined the plaintiff.

[140] In his report dated December 22, 2021, page 8, Dr. Yardley indicates that:

Evaluation of her right elbow demonstrated residual loss of range of motion which I measured to be 15 – 18 degrees loss compared to the contralateral side where she did have some subtle hyperextension.

[141] His opinion is that she continues to suffer from residual near constant pain in her right elbow. On page 8 he says: “The nature of her symptoms in particular, the achy character of her pain, as well as her night pain, as well as weather change-related pain, all would be consistent with pain more likely than not a result of early post-traumatic osteoarthritis … she shows obvious clinical stigma of worsening post-traumatic osteoarthritis”.

[142] He also confirms that his physical examination indicated an onset of lateral epicondylitis (“tennis elbow”) which he suspects has been exacerbated because of her elbow dysfunction associated with early arthritis.

[143] He believes that her symptoms are permanent and have “likely reached maximal medical improvement” (page 9).

[144] He concludes that she is suffering from worsening post-traumatic osteoarthritis of her right elbow.

[145] He makes a connection with the pre-existing issues of her right upper extremity on page 9 and says that it is hard to know if she injured her right shoulder and wrist at the fall. He states:

It does appear that her loss of function of her right elbow has resulted in concurrent symptoms in her right shoulder and wrist and in particular in her shoulder she demonstrates signs of impingement, subchondral bursitis and rotator cuff tendinopathy today, which I suspect is the result of her overall dysfunction of her right upper limb. Her right wrist pain appears to be prominently associated with supination and pronation and is likely soft tissue in nature.

Dr. Karabatsos

[146] Dr. Charlabos Karabatsos completed a defence medical examination. He was also qualified as an expert in orthopaedic surgery.

[147] He reviewed the medical reports forwarded to him by defendants’ counsel and physically examined the plaintiff on March 9, 2020.

[148] Dr. Karabatsos testified that the plaintiff’s injury is a common injury and that people recover with no long-lasting impairment. His opinion is also based on his own research.

[149] At the time of the defence medical examination, the plaintiff complained of relatively constant pain in her right elbow. “She describes it as dull on occasion and sharp at other times.” (page 3).

[150] He reviewed the X-rays from Brockville General Hospital on January 27, 2016, the day of the fall, February 3. 2016, February 17, 2016, March 9, 2016, and October 18, 2017. The last X-ray report indicated that impaction and cortical irregularity of the radial aspect of the radial head remains. There was “no significant change from previous and in keeping with a healed fracture.” (page 5). It was also noted that there was a secondary osteoarthritis at the articular surface.

[151] Dr. Karabatsos’s opined that:

a. The plaintiff reached maximum medical recovery from the fall (page 12);

b. She suffered a mildly impacted fracture of the radial aspect of the right radial head;

c. She had a mild degree of pre-existing osteoarthritis in the elbow but was not re-injured in the fall;

d. She was treated conservatively in a fiberglass cast, with a satisfactory realignment on follow up radiographs and completed some physio;

e. She has a loss of extension of 10 degrees in her right elbow;

f. She made a favourable recovery from the right radial head fracture (page 13);

g. At the time of the assessment, she is mainly restricted from performing heavy lifting with the right arm, but housekeeping assistance is not recommended or required;

h. She will be able to work full time as a bus driver until retirement;

i. No therapeutic intervention is required, and it is recommended that she continue with a home-based exercise program;

j. Long term prognosis is very favourable (page 14) and the risk of post-traumatic arthritis is low with this type of fracture, the risk would be less than 50%;

k. Page 14: If she develops some localized arthritis, it can be treated with radial head incision or replacement; and

l. In conclusion, there is a “very mild subject incident-related physical impairment and associated functional limitation persist at this point of time.”

Conclusion

[152] Firstly, the plaintiff argues that Dr. Karabatsos’s comments on Dr. Yardley’s report should be ignored by the court because, as an expert, pursuant to rule 53.03(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, he is precluded from giving evidence on matters not covered by his report, unless leave is granted by the court.

[153] The court notes the Ontario Court of Appeal’s comments in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 38, where it stated that an expert can explain, and amplify on topics and matters touched upon in their report but otherwise must stay within the four corners of their report unless the court grants leave.

[154] In this case, the court will not consider Dr. Karabatsos’ comments so far as they pertain to Dr. Yardley’s report.

[155] In this case, Dr. Yardley would not have had a chance to respond, and this would be prejudicial to the plaintiff and not in the interests of justice.

[156] Both Dr. Yardley and Dr. Karabatsos had similar views of the plaintiff’s injury. They differ on the degree of seriousness and whether arthritis is a serious risk in the future.

[157] Dr. Yardley differs from Dr. Karabatsos, the defence expert, with respect to the risk of development of post traumatic arthritis. They agreed on the diagnosis of a radial head fracture and loss of range, but Dr. Yardley had the benefit of seeing her a year later and saw her deteriorating. In conclusion, Dr. Yardley opines that there is a risk of arthritis developing in the right elbow.

[158] I find that Dr. Yardley was a very careful physician who reviewed the medical reports and documentation provided to him but relied, in my view, also heavily on the plaintiff’s portrayal of her symptoms and lifestyle.

[159] Dr. Yardley had a more guarded view of her condition. The court notes that in 2019, he forecasted that surgery might be needed in the future. He stated this again in 2021. Surgery has not taken place.

[160] I find that Dr. Karabatsos’ evidence was more objectively grounded in the physical observations of the plaintiff and/or a complete review of the X-rays and medical reports provided to him.

[161] The court prefers Dr. Karabatsos’ evidence with respect to the nature of the plaintiff’s elbow injury, that is, it was not as serious as other types of elbow fractures.

[162] Dr. Karabatsos was candid in admitting that he believed her that her elbow injury did affect her ability to do her everyday activities.

[163] The real difference is the likelihood that the plaintiff will suffer from arthritis of her elbow in the future. Dr. Yardley believed it is likely whereas Dr. Karabatsos agreed that arthritis is never out of the question but only an assessment in 10 years by a review of X-rays can determine if arthritis is a real possibility.

[164] I accept that given Dr. Yardley saw the plaintiff more recently (December 2021) and his opinion as to the plaintiff’s medical condition is more current and more reliable.

[165] The court notes that the plaintiff admitted to suffering from arthritis in her right shoulder.

[166] The evidence of Dr. Yardley persuades me that the plaintiff does some risk of suffering from arthritis of her right elbow.

[167] I also make the following findings:

a. The plaintiff returned to work 9 months after the slip and fall;

b. She is able to drive and maneuver a school bus;

c. She has been working steadily at her employment since the slip and fall except for an absence caused by another unrelated injury (ankle fracture in 2019);

d. Dr. Yardley saw the plaintiff more recently and hence his information is more up to date;

e. However, Dr. Yardley admits to relying on subjective self-reporting of the plaintiff;

f. The court acknowledges Dr. Karabatsos’s ’s opinion that the fracture of her right elbow is a common injury and there is a low risk of arthritis;

g. That Dr. Karabatsos observed that she had no difference in her muscle tones between both arms. In other words, her left arm had no muscle atrophy and had a normal grip strength;

h. According to Dr. Yardley, there are still lingering problems with her right shoulder which are affecting her daily living which is not attributed to her slip and fall injury;

i. She wears an elbow brace;

j. She is still gardening but not as much; and

k. She is receiving cortisone treatments.

[168] I have some concerns regarding the credibility of the plaintiff as it relates to her loss of income and future care claim:

a. She put forward that she has significant future loss of income due to not being able to work at the Dewar Inn in the summers, yet her husband testified that she did not want to work summers as she wanted to spend time with her granddaughter. She admitted in cross-examination that she preferred to stay home in the summers;

b. In support of her need to obtain assistance with her housework, she indicated that her granddaughter came to live with her, but this was quickly denied by the plaintiff’s own mother in her testimony. The plaintiff’s mother response to the inquiry was matter of fact and she was genuinely surprised at this suggestion that the plaintiff’s grandmother came to live with the plaintiff. I accept the plaintiff’s mother evidence on this point; and

c. She was not forthright to Revenue Canada in not declaring her income that she earned working at the souvenir shop.

[169] I do accept that the plaintiff has some decreased capacity for cleaning and chopping food and that she has to pace herself and cannot do heavy lifting and if she does “she pays for it later”. I accept that there is some restriction and residual pain if she completes some repetitive and heavy work.

[170] However, she has the use of equipment that has allowed her work to be less onerous, e.g. sitting lawn mower and Irobot. She can also pace herself when completing tasks.

[171] I have also considered that the plaintiff has not mitigated her damages. She did not pursue physiotherapy despite medical recommendations. The physiotherapist, Priyanka Bhatt, in charge of the clinic had recommended that she continue. She had shown improvement and it was recommended that she return. The plaintiff stated that she terminated the sessions due to financial reasons but her husband had an extended health plan that would cover $500 per year of the sessions. Also, the clinic has accommodated individuals who require financial assistance but the plaintiff did not seek this financial assistance.

[172] There was no evidence of whether she regularly completed her in home physiotherapy sessions recommended by the physiotherapist.

[173] The plaintiffs have presented the following cases which turn on their own facts:

a. Thorp v. Gerow, 2008 BCSC 622, where the court awarded the plaintiff $50,000 ($67,000 in today’s dollars) for fractured and dislocated elbow which caused considerable pain to the plaintiff. She underwent physiotherapy but was left with ongoing pain and restricted range of motion. He could no longer perform manual labour type occupations. In that case, the plaintiff suffered a dislocated elbow and was diagnosed with a partial permanent disability that reduced his ability to enjoy his prior active lifestyle.

b. Kean v. South Crosby (Township), 1999 CarswellOnt 616 (Ont. Gen. Div.) In a slip and fall, the plaintiff fractured elbow with weakness in left arm. Four years after the fall he continued to experience weakness in the left arm and soreness in her left shoulder and was unable to fully extend her right arm. On review of the case, there is little analysis with respect to the award of the damages but noted that all of the plaintiff’s physical activities were restricted. He was awarded $50,000 ($82,000 in today’s dollars)

c. In Dempsey v. Dempsey (1999), 224 N.B.R. (2d) 224, the plaintiff was awarded $60,000 ($98,000 in today’s dollar) when after a slip and fall, the plaintiff dislocated his left elbow with a severely comminuted fracture of the radial head. The plaintiff had stiffness and decreased strength in the elbow and the possibility of arthritis in the future. The impact of this injury on the plaintiff was significant as he was a young roofer and had a very physical demanding job. He was unable to return to work for an extended period of time and at his current job, he has to have accommodations. He experiences muscle spasms and his injuries affect his ability to sleep.

[174] Based on all of the above, I assess the plaintiff’s general damages at $50,000.

Cost of future housekeeping and lawn maintenance

[175] This injury will impact to some extent on the plaintiff’s quality of life, such as her ability to carry things around her home in certain tasks which require heavy lifting or repetitive work and participate in activities,

[176] Mr. Sebastien Ferland, the occupational therapist assessed the plaintiff’s requirements in future home and lawn care. The scope of his expert opinion was assessing home maintenance needs and housekeeping needs.

[177] He saw her on two occasions. He last saw her on September 9, 2021. She continued to struggle with activities involving any forceful or repetitive tasks, but she could complete light housework. He was not there to assess whether occupational therapy (OT) could assist her in modifying her work.

[178] He noted that she has a 10 degree reduction in her elbow extension and she suffers from pain and flare ups. He observed that had signs of inflammation, swelling and redness.

[179] As discussed above, arthritis is a possibility and the OT noted in his November 24, 2021, report at page 10 regarding her range of motion: loss of extension in the right elbow (approximate loss of 10 degrees in comparison with the left side).

[180] He estimates the costs at $4680 per year for housekeeping and $2200 per year for lawn care for a total of $6880 per year.

[181] She is not entitled to $100 per week for housekeeping. She currently does most of the housekeeping.

[182] Regarding the mowing of the lawn, she is now using a sitting lawn mower. She also had the use of a self-propelled vacuum cleaner called Irobot.

[183] Mr. Ferland was asked questions about whether OT could be of assistance to her, but this was objected to and not permitted by the court as it was not in the ambit of his scope of expertise.

[184] The court has some evidence that OT would be helpful. As Dr. Yardley stated in his December 21, 2021, report when speaking about her pain: “She expressed that it was affecting her in her home activities. He suggested modification of personal care/hygiene”.

[185] Based on the evidence and my credibility findings, the court finds that she is not required to decades of future housekeeping and lawn maintenance.

[186] Yet, a reasonable amount is necessary to assist her in housework and lawn care pending further physiotherapy and other treatment. The amount of $10,000 will provide some assistance in the near future.

Loss of Income

[187] The parties agree that the plaintiff is entitled to $10,345 for past loss of income from her employment as a bus driver.

[188] The parties disagree on the plaintiff’s claim for past loss of income from her work at the Dewar Inn and future loss of income.

[189] For the reasons that follow, I would dismiss both the plaintiff’s claim for loss of income from the Dewar Inn employment and future loss of income.

[190] The court heard from Wendy Chapman, a Dewar Inn employee, who confirmed that the Dewar Inn has 6 cabins and 12 rooms and the peak season is from June to October. In the summer of 2015, the plaintiff worked there and was responsible for hotel housekeeping including scrubbing bathrooms, washing floors, changing beds, replacing towels, restocking supplies, laundry folding and pushing a card containing cleaning items and supplies.

[191] J.C. Plante was the plaintiff’s expert accountant who was tendered for the purposes of opinion evidence on the past and future income loss and the present value of future housekeeping and lawn maintenance.

[192] Mr. Plante stated that, had she continued at the Dewar Inn for 18 hours per week during the summer months as she did in 2015, until the age of retirement, her future loss of income would be $48,652. He also estimated that she would need $210,272 for payment of future housekeeping and lawn care. He based the figures on hours that would be required according to Mr. Ferland’s report.

[193] Conor Paxton was qualified as an expert in forensic accounting in past and future loss of income. He agreed with the past loss of income of $10,345 from her work as a bus driver. Mr. Paxton did not estimate any future income.

[194] The court dismisses the claim for past loss of income from Dewar Inn and future loss of income because I find that she was readily able to mitigate her loss and she failed to do so.

[195] More specifically:

a. She could have searched for other work. There were types of work that did not require any heavy lifting, e.g., at the souvenir shop at the racetrack where she had worked in the past.

b. The plaintiff has capacity to work some jobs as she continues to operate a school bus which involves completing an early morning check and driving the vehicle for a few hours a day twice a day. This requires physical maneuvering and use of arms to operate the bus.

c. She could have searched for more hours with the bus lines in off season (e.g. in the summer); and

d. She did not have a desire to work in the summer as she admitted. Her husband testified that the plaintiff did not want to work in the summer as she prefers to spend time with her granddaughter.

Cost of future care

[196] The plaintiff claims future care costs for over-the-counter medication such as Tylenol at $85.00 per year.

[197] In addition, as mentioned above, Dr. Yardley stated modification of her personal care/hygiene would be of assistance to her. However, there is no evidence explaining in what respect OT would be required to assist her in her daily living nor as to what the required cost would be.

[198] There is also no evidence how many physiotherapy sessions are available through her husband’s health plan and what would be required to be paid by the plaintiff from out of pocket.

[199] The plaintiff claims the cost of over the counter medication in the amount of $17 per month which amounts to $204 per year. The court award for the cost of this medication for the next several decades.

[200] The court awards to the plaintiff the amount of $6,000 for cost of future care.

OHIP claim

[201] The parties agree that the defendants will pay to OHIP on behalf of the plaintiff $2,773.11 for its subrogated interest, inclusive of interest and applicable taxes

Conclusion

[202] Accordingly, the defendants are jointly and severally liable for negligence and the plaintiff is contributorily negligent. The defendants are liable at 75% and the plaintiff is liable at 25%.

[203] The plaintiff’s damages are as follows:

a. $2773.11 for OHIP subrogated claim;

b. General damages of $50,000;

c. Past loss of income of $10,345;

d. Future housekeeping and lawn maintenance: $10,000; and

e. Cost of future care: $6000.

[204] Therefore, the plaintiff is awarded the following after applying the reduction of contributory negligence, the amount of $59,338.58 plus pre-judgment interest in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[205] If the parties cannot agree on costs, the plaintiff is to file a three page costs submissions along with any offers to settle and bill of costs by February 10, 2023. The defendants are to file their three page costs submission along with any offers to settle and bill of costs by February 24, 2023. The plaintiff may file their one-page reply by March 3, 2023.

Justice A. Doyle Released: January 24, 2023

[^1]: For ease of reference, the court has set out the defendants’ employees involved below: Ken Miller: One of the owners of the contractor Blair Miller – Contractor employee who monitors weather reports David Bradley: Contractor employee who now plowing and salt distributor Joshua Howe: Contractor employee who shovels sidewalks Leo Doucet: Manager with property manager Ricky Miller: Employee with property manager who has a supervisory role Larry Miller – Employee with property manager who has a supervisory role