Court File and Parties
COURT FILE NO.: 09-9232
DATE: 20 August 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julia Maria Shweihat, a minor, by her litigation guardian Ausamah Shweihat, Sam Gabriel Shweihat, a minor by his litigation guardian Ausamah Shweihat, Christina Shweihat and Ausamah Shweihat, Plaintiffs
AND:
Greti Development Co. Limited and Stephan Et Al Inc., Defendants
BEFORE: The Honourable Mr. Justice R.J. Nightingale
COUNSEL: Taylor Casement, Counsel, for the Plaintiffs Sin Ying Olivia Cheng, Counsel, for the Defendant Stephan Et Al Inc.
HEARD: July 31, 2015
ENDORSEMENT
[1] The Defendant Stephan et al Inc. (“Stephan”), a snow removal contractor in this slip and fall personal injury action, brings this motion for summary judgment to dismiss the Plaintiffs’ action against it.
[2] On March 7, 2008 at approximately 10:00 AM, the Plaintiff Christina Shweihat alleges she slipped and fell at or near the apartment building parking lot at 75 Wendover Drive Hamilton causing injuries to her leg. The Plaintiffs commenced action against the owner of the apartment building and parking lot, the Defendant Greti Development Co. Ltd. (“Greti”) and against the Defendant Stephan, the winter maintenance company hired by Greti to maintain the premises’ parking lot at the material time. Stephan denies any liability for the Plaintiffs’ damages and cross-claims against the Defendant owner Greti, which did not cross-claim against Stephan.
[3] The parties have conducted examinations for discovery. The Defendant provided affidavit evidence of the owner Stephan Tazzeo, its snowplow operator James Hoye, and Mercedes Marin, an articling student at the Defendant’s law firm all of whom were cross examined on their affidavits in March 2015 with transcripts provided to the Court. They also relied on the Plaintiffs’ and Greti’s (David Horwood) examination for discovery transcripts and attempted to rely on an affidavit of another articling student containing additional information sworn on June 19, 2015, some three months after the cross examinations were held.
[4] In response, the Plaintiff Christina provided her own affidavit and affidavits of her husband Ausamah Shweihat and her mother Lorraine Puglia, all of whom were also cross examined in March 2015 thereon with transcripts provided to the Court.
[5] The Defendant owner Greti apparently does not oppose the Stephan motion and did not appear on the hearing.
Defendant’s Evidence
[6] The affidavit of Stephan Tazzeo and transcript of the examination for discovery of David Horwood, a representative of Effort Trust, Greti’s property manager for the apartment building at 75 Wendover Drive Hamilton, confirm that during the 2007 to 2008 winter season, Greti initially hired Peninsula Paving to perform winter maintenance services removing snow and ice from the parking lot.
[7] Due to Greti’s dissatisfaction with the work performed by Peninsula, Greti through its agent Horwood contacted Stephan Tazzeo, the owner of the Defendant Stephan on February 16, 2008 and retained it to perform snow and ice removal services for the remainder of the 2008 winter term. Stephan had previously attended those premises to perform summer maintenance services only.
[8] Although no written agreement or contract was then signed between Greti and Stephan specifically defining Stephan’s duties and obligations, it was clear that Tazzeo was requested to clean up the premises including what he knew to be, having seen it already himself, between 4 to 6 inches of pure ice on the whole parking lot area because of the poor job by the previous contractor Peninsula.
[9] He was also told to charge per hour “for anything done” for removing the 6 inches of ice on the road services and any snow removal services performed on the parking lot premises by his company and that the superintendent of Greti would facilitate removal of all cars in the premises to aid in the snow and ice removal process.
[10] His evidence on cross-examination was that his company was not given instructions, written or oral, as to the scope, time or method of snow removal services that Stephan was to provide. Greti did not specify how much salt to use, or how to apply it, or under what circumstances Stephan should plow or apply salt or both, or how to remove the snow and ice as this was all left up to Stephan for which it was paid on an hourly basis. It was Tazzeo who then provided his instructions to his employee James Hoye.
[11] Stephan Tazzeo admitted on his examination for discovery that the expectation of the owner Greti and his company was that Stephan would attend the premises as often as needed to bring the parking lot into a satisfactory condition and clear the parking lot of ice and snow down to the tarmac.
[12] It is not insignificant that after the Defendant Greti learned of the Plaintiffs’ fall in May 2010, Greti’s property manager had the Defendant Stephan sign a “backdated” contract in June 2010 for this job. Paragraph 2 of that agreement makes it clear, as understood from the outset, that the Defendant Stephan had total control of the work required by Greti and had to provide all the labour, equipment and services necessary for its performance in accordance with the agreement and in a good and workmanlike manner.
[13] When Tazzeo and Hoye attended the premises on February 17, 2008, Tazzeo described the parking lot as a huge mess, “really ridiculous”, with an accumulation of 6 inches of built up ice on the surface of the parking lot. Hoye described the lot as among the worst 10% of lots he ever worked on and Tazzeo described it is among the worst 1% of parking lots he had seen.
[14] Both Hoye and Tazzeo confirmed that ice up to 4 inches thick had built up around some of the tires of the cars in the parking lot that had been there for a long time.
[15] The evidence of Hoye is that he on the instructions of Tazzeo attended on the site on nine occasions from February 17, 2008 to March 7, 2008. His notes indicated the following work he performed on the site :
February 17, 2008: spread 2 yards of salt
February 18 and 19th bobcat work, resalting, salting
February 22: salting
February 26: plowing and salting
February 29: plowing and salting
March 4: plowing and salting
March 5: plowing and salting
March 7: salting
[16] During that 20 day period, Hoye did not attend on the other 11 days.
[17] Hoye asked the on-site building superintendent on several occasions to get the cars moved which interfered with his ability to remove the ice and snow but they were not moved.
[18] As indicated above, Tazzeo and Hoye admitted that the entire parking lot had upwards of 6 inches of built up ice covering it when they agreed to take on the job and when they attended the next day. The reasonable inference from that is that they obviously knew that there was ice build-up between and underneath all of the cars parked on that lot, whether they were temporarily parked there overnight or for longer periods of time.
[19] Hoye admitted he was aware that the built up ice in the parking lot was a concern for safety reasons for seniors living in the building who could fall down including those visitors to the building. Stephan obviously had knowledge of the significant ice buildup on the entire parking lot and hazards it posed to the residents and visitors and had specific instructions from Greti to essentially do whatever it took to clear the parking lot of ice and snow down to the tarmac for which they were paid an hourly rate. Despite that, Hoye’s evidence, confirmed in his notes, was that ice was not completely removed from the parking lot until March 10, three days after the Plaintiff’s slip and fall causing her injuries.
[20] In addition, Hoye’s evidence is that he only used a machine to spread 2 yards of salt over the parking lot premises on February 17 but stated “I was not able to salt underneath and around the parked vehicles” even though he noted there was still a lot of ice on the premises. It appears clear that what he meant was that he was not able to use the machine to apply salt between or underneath the cars. There was no evidence from Hoye or Tazzeo that Stephan did anything to apply salt or sand by hand between the parked cars or underneath the parked cars and the reasonable inference is that he did not at any time.
[21] Hoye’s evidence is that his usual practice when removing ice with the bobcat was to continue working until the ice was removed from the area for however long that takes. He therefore believes, based on his usual practice, that after February 19, 2008, the ice in the parking lot was gone, except in the areas the bobcat could not reach. He admitted the bobcat would not have been able to remove ice directly next to or underneath the parked vehicles in the lot.
[22] What is also clear is that the Defendant Stephan, which did not learn of the Plaintiff’s fall until 2010, two years later, provided no evidence that Hoye or his co-worker did anything to try and chip away by hand to remove the ice between the cars parked in that lot on a temporary or long-term basis, including those cars parked in the front row closest to the building where the Plaintiff alleges she fell.
[23] Tazzeo’s evidence is simply that he “believed” his company was unable to plow or salt the areas surrounding the parked vehicles until the cars were removed out of a fear of damaging the parked cars. Again, the reasonable inference from all that evidence is that Hoye and Stephan did nothing to try and do so by hand or other means even though it was their choice as to how to remove all the ice and snow for which they were paid an hourly rate. No doubt the physical work would have been harder than using the bobcat but it is difficult to accept the explanation of damage caused to the cars simply by Hoye applying salt by hand between and underneath them and using the appropriate hand tools to chip out and remove the ice. There can be no doubt that the presence of 4 to 6 inches of ice between and underneath the parked cars, including those temporarily parked, posed no less a hazard to the building’s tenants and visitors using cars as the thick ice located on the balance of the parking lot.
[24] The photographs of the scene taken by the Plaintiff’s husband a day or two after her fall confirm that the Defendant after this incident simply plowed the snow in the driveway portion of the lot behind the cars and in the larger areas where there were no cars parked. However, although they only depict part of the parking lot facing the building where Plaintiff states she fell, these photographs appear to confirm Stephan and Hoye’s snow removal efforts of doing nothing to attempt to remove snow and ice between the cars and that they in fact plowed more snow beside some cars with its plow without then attempting to remove it.
[25] Again, the Defendant Stephan’s clear instructions were to remove the ice from the entire parking lot by whatever methods it took for which they were paid an hourly rate. They were not told how to do that and it does not appear that a limit was placed on the cost to do it based on their original instructions received.
[26] Lastly, there is no evidence from the Defendant Stephan or Hoye that they had successfully removed all the ice down to the tarmac specifically in the front row before the Plaintiff fell in that area on March 7, 2008.
[27] Hoye’s evidence from his log notes confirm he attended on the premises just before 8 a.m. on March 7, 2008, the day the Plaintiff fell. His notes indicated that he did not plow the premises that morning suggesting there was 3 cm of snow covering the parking lot when he arrived and not enough to plow. Tazzeo stated it was his standard to plow whenever there was 5 cm of snow or more. Hoye said he applied salt to the parking lot only that day using the machine, but again by inference, not between or underneath the cars although both he and Tazzeo admitted that this fresh layer of snow would have covered any accumulated ice still left in the parking lot. Specifically, Hoye admitted the snow-covered ice would have been a concealed hazard for the seniors in the building and for visitors to the building.
[28] The Defendant attempted to introduce a printout from the Environment Canada website referring to the weather conditions at Hamilton Station included in an affidavit of Ms. Marin, the Defendant law firm’s articling student. No notice under the Evidence Act to rely on that as a business record was provided by the Defendant or an affidavit confirming that the record was a record made in the usual course of business of Environment Canada. Ms. Marin admits having no knowledge of where Hamilton Station is in relation to the premises or training in meteorology and cannot testify about local weather conditions. That evidence is not admissible on this hearing to establish the weather conditions that day.
[29] The evidence of Tazzeo is that although this employee Hoye made daily log notes of his work, he did not keep any logs of his own alleged inspections of and involvement regarding the parking lot. He provided a typed sheet in his affidavit which he said incorporated any additional observations he noted when he observed the premises after his inspections.
[30] However, in cross-examination, he admitted he created that typed sheet only after he was notified of the Plaintiffs’ claim in May 2010 which he prepared for an insurance adjuster. He produced no original log notes of any alleged personal inspections by him whatsoever and obviously the typed sheet reflects his review of the notes of Mr. Hoye and incorporating that information into his own typed sheet version as well as then adding additional weather information from some sources he obtained at that time after the fact. Accordingly, I place little weight on that part of his evidence from that sheet.
[31] I also place little weight on the evidence from the examination for discovery of the representative David Horwood relied on by the Defendant Stephan. Despite having no direct personal knowledge about and not having observed Stephan’s work performed, he said he thought Stephan was doing a good job in his services provided. However, it must also be remembered that it was Horwood’s company Effort Trust that was retained as a property manager by Greti, the property owner for this apartment building, which allowed that parking lot to become covered with 6 inches of ice over a significant period of time in the first place before doing anything about it and then apparently did little if anything to assist Stephan to remove the ice on the entire lot by having the owners move their cars for it.
[32] The Defendant also purports to rely on the affidavit of another articling student sworn in June 2015 and filed three months after the cross examinations were completed to assert that the City of Toronto website considers a snowfall of less than 5 cm to be minor. No motion for leave to file that affidavit was brought by Stephan under Rule 39.02. No affidavit evidence was served from a witness from the City to confirm that evidence at any time, let alone before cross examinations were completed in March 2015 on the original affidavits tendered by the parties. The evidence in any event is hearsay and there is nothing to suggest that the standards of a municipality regarding how and when it snowplows are relevant regarding the standards of a private contractor to remove ice and snow from a parking lot of an apartment building in the City of Hamilton. That evidence is not admissible.
Plaintiffs’ Evidence
[33] The Plaintiff Christina stated she drove by car to her grandmother’s apartment along with her mother and two infant children at about 10:00 a.m. on March 7, 2008. She parked in the first row of cars facing the entrance likely in one of the spots indicated in a photograph obtained by her husband a day or two later. Her evidence from her examination for discovery, which was tendered by the Defendant as part of its case on this motion and admitted in its factum, was that the parking lot at that time was snow-covered with 4 to 6 inches of snow.
[34] She was wearing winter boots when she got out of her car. She can’t recall if there were vehicles parked on either side of her vehicle. She then went to the right rear passenger side noting the ground was snow-covered and slippery and used caution walking around the vehicle to open the door to remove her infant son placing him in a car seat.
[35] She then closed the door carrying her son in one hand and started to walk carefully considering the parking lot conditions to the back of her car taking only two steps. Her right foot went up sliding away from her and she fell backwards. She said she fell as the ground was definitely snow-covered but it was slippery. She did not see any ice as the ground was covered with snow. In cross-examination on her affidavit, she stated she did not see any signs warning tenants or visitors of the slippery conditions in the parking lot or signs or barricades or pylons indicating the parking lot was closed off to tenants or visitors.
[36] She could not say that the parking lot that day was in any better or worse condition than it had been in previous weeks.
[37] The evidence of her mother Lorraine Puglia was that on their arrival that morning, the parking lot was snow-covered with a significant amount of snow that covered the parking lot. There were areas that had more built-up snow around parked cars and she described the lot as being a real mess and in really bad shape. She described it as having lots of snow and it was slippery and she had to walk really carefully as she was retrieving the children after her daughter fell so that she did not fall too. It did not look to her that anyone had plowed the lot that day or previous days.
[38] The evidence of Ausamah Shweihat is that he took the photographs of the parking lot described above a day or two after his wife’s fall. He said when he arrived at the parking lot to take them, there was a lot of snow that had not been cleared with the majority of the parking lot snow-covered and that some cars had a lot of snow built up around them. There were also empty parking spaces with more built-up snow there than others as depicted in the photographs.
[39] The evidence of all three Plaintiffs witnesses are not just self-serving bald assertions without supporting evidence. Rather, the Defendant itself provides the plausible explanation for the hazardous condition of snow-covered ice on the lot because of its failure to take all reasonable steps to salt and remove that snow and ice between the cars before the Plaintiff fell that day.
Analysis
[40] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. Hyrniak v. Mauldin 2014 SCC 7, [2014] 1 SCR 87.
[41] The party who seeks summary judgment must provide the required supporting affidavit material or other evidence to support its motion. Each side must put its best foot forward. The Court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial although in some circumstances, the interests of justice may require that a material issue should be determined at trial upon a full evidentiary record.
[42] In my view, based on the record before me, the Defendant has not met its onus to demonstrate that there is no genuine issue requiring a trial. There is still indeed an issue as to whether the Defendant Stephan breached the applicable standard of care of a reasonable snow removal contractor in Hamilton based on the evidence before me on this motion.
[43] Firstly, what is clear from the evidence is that Stephan was hired by the property owner Greti on February 16, 2008 to remove the upwards of 6 inches of pure ice that covered the entire parking lot of the apartment building which was clearly dangerous to the safety of the residents there and their visitors. Stephan’s instructions were to attend as often as needed to bring the parking lot into a satisfactory condition and clear the parking lot of ice and snow down to the tarmac. Stephan was to supply all the labour and equipment to do so and was paid by the hour for its services including any extra work required.
[44] In particular, the evidence is that they were not told just to remove the ice behind the cars and not between them but rather to remove the ice from the entire parking lot. Stephan’s representative Tazzeo, not the property owner Greti, made the decisions regarding the removal of the ice and snow and application of salt and sand regarding that lot.
[45] It was no surprise to the Defendant that there were cars parked on that lot at the time they started their work on February 17 and its evidence was that they did nothing by way of applying salt between or underneath the cars or using hand tools to remove that ice between the cars. Again, they were being paid by the hour for their work and were obligated to supply the required manpower and tools to do the entire job required of it promptly.
[46] Despite that, the only evidence led by Stephan through Hoye was that the ice had not been removed from the entire parking lot until three days after the Plaintiff fell on March 7, 2008. Furthermore, there was no evidence that the Defendant had in fact removed the built-up ice from that front row parking where the Plaintiff parked her vehicle that morning, including by hand between the parked cars there, before she fell on March 7.
[47] Secondly, although Hoye states the parking lot was covered by 3 cm of snow at 8 a.m. that morning and accordingly he didn’t plow it but only salted using his machine, the evidence of the Plaintiff tendered by the Defendant was that there was in fact 4 two 6 inches of snow that morning at 10 a.m., that the lot was completely snow-covered and that it was not snowing when she fell. Hoye’s notes suggested there were some flurries that morning but there was no evidence that 2 ½ to 4 ½ inches of snow fell between 8:00 and 10:00 a.m.
[48] The Defendant in its factum stated that the evidence of the Plaintiffs was not disputed by it on this motion for summary judgment. In that regard, the Plaintiff Christina and her mother Lorraine Puglia both confirmed clearly that the area where the Plaintiff fell was snow-covered but slippery. The evidence of Lorraine Puglia is that the parking lot was a real mess and in really bad shape and slippery and she had to be very careful herself walking in that area where the Plaintiff fell. There was a buildup of snow as well against the side of some of the cars there.
[49] Although the Defendant Hoye said he applied salt that morning, his log and his evidence did not state how much salt he applied. In, particular, his evidence was clear that he did not apply salt or remove the snow between the cars. In any event, the Plaintiffs’ evidence that is not disputed by the Defendant was that the area where she walked beside her car when she fell was snow-covered and slippery.
[50] Stephan Tazzeo admits that the snow covering on that parking lot that day would cover any ice below and that snow-covered ice would be a concealed hazard. He admitted being concerned about that as the building was occupied by seniors who might fall down because of the ice on the lot covered by the snow. However, despite knowing that and the conditions of the parking lot, there is no evidence that anything was done by Stephan to attempt to remove ice and snow between or underneath the cars parked temporarily or long-term in that lot and in particular that that was done in the front row of the lot where the Plaintiff parked, fell and injured herself.
[51] For these reasons, I disagree with the Defendant’s position that the evidence before me establishes that Stephan reasonably fully complied with its winter maintenance obligations as a reasonable contractor without any specific contractual terms, conditions or obligations. In fact, the evidence appears to confirm it may not have or did not comply with its obligations under its original verbal hiring by the owner Greti to promptly remove the ice buildup in the entire parking lot, including between and underneath the cars, however they deemed fit before the Plaintiff fell on March 7, 2008, almost 3 weeks after they were initially hired. The facts herein are clearly distinguishable from those in Wiseman v Carleton Place Oil Inc 2014 ONSC 1987 where there was no evidence that the snow removal operator failed to live up to the terms of their contract in a reasonable way.
[52] In addition, although the log records of Hoye are good evidence of what Hoye did , that he saw 3 cm of snow that morning, didn’t plow the lot at all and certainly did not apply salt and clear any snow and ice between the cars, Stephan accepts the Plaintiffs’ evidence that there were in fact 4 to 6 inches of snow that morning on the lot at 10:00 a.m. including where she fell, that where she fell was slippery, and that the lot was a mess and looked like it hadn’t been plowed that day or before.
[53] That evidence, even without expert evidence as to the standard of care of a reasonable contractor under these circumstances, could suggest a prima facie case that the Defendant did not take all reasonable care required of them in the circumstances to remove the snow and ice where the Plaintiff exited her vehicle causing her to fall and sustain a significant injury that was certainly foreseeable by it.
[54] In all of the circumstances, the Defendant has failed to establish that there is no genuine issue requiring a trial.
[55] The Plaintiff’s requested in their factum that the Defendant’s motion for summary judgment be dismissed and the matter proceed to trial.
[56] I agree that it should. This action is on the trial list for January 2016. The evidence called at trial on the issues of liability of both Defendant Greti and Stephan may very well mostly be the same as I heard on this motion. However, because of the liability claim outstanding against the Defendant Greti and cross claim by Stephan against Greti, it would be more appropriate for the trial judge to decide all the ultimate issues of liability of the Defendants on assessing the evidence before him or her and, if necessary, apportion the percentage of liability between the Defendants and Plaintiff rather than my deciding the issue of liability only, if any, of the Defendant Stephan on this motion or by conducting a mini-trial with further oral evidence. The interest of justice requires that the liability issues be resolved at trial in this case.
[57] Furthermore, given that the matter is already proceeding to trial on the Plaintiffs’ damages and on liability against the other Defendant Greti, it is not appropriate or required that I continue to remain seized of this matter, and I decline to do so.
[58] The Defendant’s motion is accordingly dismissed.
[59] Subject to any relevant written offers to settle, the Plaintiffs would normally be entitled to their costs on a partial indemnity basis for this motion. If the parties are unable to agree on those costs, the Plaintiffs can provide their written submissions to me at my chambers in Simcoe within 15 days of the date of this decision of no more than three pages in length plus a bill of costs. The Defendant Stephan will have 10 days thereafter to similarly respond. If no written submissions are made as required, each party shall bear their own costs of this motion.
The Honourable Mr. Justice R.J. Nightingale
Date: August 20, 2015