SUDBURY COURT FILE NO.: C-3224-14 DATE: 2024-05-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Ranger Plaintiff – and – Triovest Realty Advisors, New Sudbury Holdings Inc., Lasalle Boulevard Investments Inc., CPP Investment Real Estate Holdings Inc. and Pioneer Construction Defendants

A. Bourdon, Counsel for the Plaintiff S. Croteau, Counsel for the Defendants

HEARD: March 18-22, 2024

the honourable justice J. R. HENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] This is an action brought by the plaintiff, Carmen Ranger (“Ranger”), pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”), for damages that occurred when she slipped and fell on January 29, 2013, during a winter weather event, in a marked pedestrian crosswalk, near the entrance to the Walmart store at the New Sudbury Centre (“the Mall”).

[2] The defendants collectively defended this action. The defendant CPP Investment Real Estate Holdings Inc. (“CPP”) was the owner of the Mall property. The defendant Triovest Realty Advisors (“Triovest”) was the property management company that was responsible for the maintenance of the Mall property, including all of the exterior areas. The defendant Pioneer Construction (“Pioneer”) entered into a contract with Triovest (“the Services Agreement”) to provide snow removal and winter maintenance for the exterior asphalt areas at the Mall, including the parking lots, roadways, and crosswalks.

[3] The defendants acknowledge that they were “occupiers” as defined in the OLA, and accordingly that they owed a duty pursuant to s.3(1) of the OLA.

[4] The quantum of the plaintiff’s damages has been settled between the parties. This action proceeded to trial on the liability issues only.

THE POSITIONS OF THE PARTIES

[5] The plaintiff submits that the defendants breached the duty that is set out in the OLA, as the defendants failed to provide a winter maintenance system for the property that, in all the circumstances, was reasonable to see that persons entering on the property were reasonably safe.

[6] Although Triovest, as the property manager, arranged for a winter maintenance system, the plaintiff submits that the Triovest winter maintenance system did not provide for reasonable inspection and monitoring of the crosswalk for adverse conditions caused by ice or snow. Further, if there was any understanding between the defendants as to which defendant would monitor the property, and how frequently, the plaintiff submits that the terms of that understanding were unclear and ambiguous.

[7] Also, the plaintiff submits that the Triovest winter maintenance system contained no provision to make the property reasonably safe in the event of freezing rain. Moreover, the plaintiff submits that the system should have included a provision that required pedestrian crosswalks to be given additional maintenance beyond the maintenance that was provided to the general parking lot areas.

[8] In the alternative, if the court finds that the defendants provided a reasonable winter maintenance system, the plaintiff submits that both Triovest and Pioneer failed to fulfill their obligations under the system as both failed to reasonably inspect and monitor the condition of the crosswalk, and Triovest failed to properly monitor Pioneer’s winter maintenance services.

[9] The defendants’ position is that Triovest designed and implemented a reasonable winter maintenance system that included the Services Agreement with Pioneer and reasonable monitoring of the property by both Pioneer and Triovest. The defendants deny that the obligations of Pioneer and Triovest to monitor the property were unclear or ambiguous. The defendants also deny that there was no provision to deal with freezing rain in the winter maintenance system.

[10] The defendants also submit that Pioneer and Triovest both fulfilled their obligations under the system. This, the defendants say, is exemplified by the evidence that they spent many hours removing snow from the property, sanding the exterior areas, and monitoring the property in the time leading up to the plaintiff’s fall.

[11] Further, the defendants submit that because of the weather conditions on January 29, 2013, there was nothing further the defendants could reasonably have done to make the property safer. Any further salting or sanding would have been ineffective considering the freezing rain conditions.

[12] Therefore, the defendants submit that there has been no breach of the duty set out in the OLA, as the defendants took reasonable care to see that persons entering on the property were reasonably safe.

THE LAW

[13] Sections 1 and 3(1) of the OLA read as follows:

1 In this Act,

“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,

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.

[14] In the case of Waldick v. Malcolm, [1991] 2 S.C.R. 456, the Supreme Court of Canada provided guidance as to the manner in which to interpret the OLA. In Waldick, the plaintiff slipped and fell in an icy parking area at the defendant’s farmhouse. The parking area had not been salted or sanded as was the custom in that rural region.

[15] In upholding the lower court’s judgment against the defendants, the Supreme Court confirmed at pp. 463-474 that the OLA imposes an affirmative duty upon occupiers to take reasonable care for the safety of people who enter on the premises.

[16] The Supreme Court also confirmed at p. 472 that the statutory duty is framed “quite generally” and that the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation.

[17] I accept the defendants’ position that in the present case I must take into account the fact that snow, ice, and slippery conditions are expected to regularly occur in the winter in Sudbury, and that it is not reasonably possible for any system to result in ideal roadway and walkway conditions at all times during the winter months. That is, I must consider the “realities and conditions that are experienced in Northern Ontario in the winter” as discussed in Cannon v. Cemcor Apartments Inc., 2016 ONSC 2828, at para. 49, and in Gardiner v. Thunder Bay Regional Hospital, [1999] O. J. No. 833 (Gen. Div.), at para. 26.

[18] I also accept the defendants’ position that the standard expected of an occupier is reasonableness, not perfection. As stated by Kozak J. in Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (Gen. Div.) at para. 31,

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.

[19] The size of the property is also a factor in this case. At paras. 72-73 of Lopez v. Toronto (City), 2013 ONSC 848, Spence J. remarked that the overall size of the premises was a relevant consideration for determining the extent to which the occupier was reasonably expected to inspect and maintain the premises. Spence J. approved of the remark made by Quinn J. in Przelski v. Ontario Casino Corp., [2001] O.J. No. 3012 (S.C.), that a few slippery spots on a two-acre lot was reasonably expected. However, I agree with the additional statement made by Spence J. at para. 73 that, “the size of the premises does not diminish the occupier’s duty to maintain the areas which endure heavy pedestrian traffic.”

[20] A concise summary of an occupier’s duty as it relates to snow and ice in parking lots, which I accept, is set out by Blishen J. in Flentje v. Nichols, at para. 30 as follows,

In Waldick, supra, the court emphasized that what constitutes reasonable care will depend on the specific circumstances of each case. Subsequent cases have expanded on this principal in situations where there is a known danger such as ice and snow conditions in parking lots. Although owners and occupiers are not insurers and must not meet a standard of perfection, they must have a reasonable system in place to ensure users will be reasonably safe from slipping and falling due to weather conditions.

FINDINGS OF FACT

The Fall

[21] On January 29, 2013, Ranger drove to her dentist appointment at 2:00 p.m. On her way home from her dentist, Ranger decided to visit the Walmart store at the Mall to purchase some candles.

[22] Ranger arrived and parked at the Mall just after 3:00 p.m. that day. She has lived in Sudbury most of her life. She knew that the roadway and the parking lot could be slippery, as freezing rain was occurring on January 29 and there had been a snowstorm the previous day.

[23] The Mall is a large property with an extensive exterior asphalt parking lot. Ranger parked in the north parking lot near the Walmart front entrance. As she exited her vehicle and walked toward the Walmart store, she noticed that the parking lot was a little slippery. She walked carefully and took her time. She was wearing her winter boots.

[24] The front entrance of the Walmart store faces north toward the Mall’s north parking lot. There is a wide exterior concrete pad immediately north of the Walmart front entrance doors that includes a concrete sidewalk. I will refer to this area as the Walmart concrete entrance. That concrete entrance is bounded by vertical bollards that separate the Walmart concrete entrance from the black asphalt.

[25] In between the Walmart concrete entrance and the asphalt parking lot is an asphalt roadway that is used by vehicles to travel east/west past the Walmart front entrance. Yellow hatched lines painted on the asphalt roadway mark a pedestrian crosswalk. The crosswalk funnels pedestrians from the parking lot across the roadway and onto the Walmart concrete entrance, so that they may enter the front door of the Walmart store.

[26] As Ranger approached the Walmart entrance, she used the pedestrian crosswalk to cross the asphalt roadway, and then she stepped onto the Walmart concrete entrance. When she walked through the crosswalk, she walked on the right side of the crosswalk as the “Enter” door for Walmart was to the right side of the front entrance. She entered Walmart through the front door.

[27] After completing her purchase, Ranger exited Walmart by using the “Exit” door which was on the other side of the entrance area. Therefore, as she left the store, she walked toward the side of the crosswalk that she had not used when she entered the store.

[28] Intending to use the crosswalk to return to her vehicle, Ranger walked to the edge of the Walmart concrete entrance. At that point, she observed a vehicle on the roadway approaching from her right. The driver motioned for Ranger to cross, and Ranger stepped into the crosswalk.

[29] While Ranger was walking through the crosswalk toward the parking lot, her right foot suddenly slipped out from under her, and she fell heavily to the ground, injuring her ankle. Several people came to assist Ranger, including the driver of the vehicle who had motioned to her, and Yvonne Marcotte (“Marcotte”) who was employed by Walmart to collect carts from the parking lot.

The Weather

[30] There is no dispute about the weather. The Government of Canada weather records confirm that there was a significant snowstorm in the Sudbury area on January 28, 2013, the day prior to the plaintiff’s fall. On January 28, snow fell continuously from midnight until 7:00 p.m.

[31] From 7:00 p.m. on January 28 to 11:00 a.m. on January 29, there was no precipitation shown in the weather records. The weather, as recorded hourly, was either clear, foggy, or cloudy. The next snowfall did not occur until January 30, 2013.

[32] At 11:00 a.m. on January 29, the weather was described as “freezing fog”. Thereafter, I find that the Sudbury weather was a combination of freezing rain, freezing drizzle, and freezing fog from 11:00 a.m. until 9:00 p.m. At the time of the plaintiff’s fall, I find that freezing rain was occurring in the area of the Mall, and that freezing rain and/or freezing drizzle had been occurring in the area since approximately 11:00 a.m. that day, except for a brief break of just fog at approximately 12:00 p.m.

[33] Temperatures rose through the day of January 29 from -10 degrees Celsius at 8:00 a.m. to 0 degrees Celsius at 10:00 p.m. The temperature at the time of the plaintiff’s fall was between -4 degrees Celsius and -3 degrees Celsius.

The Winter Maintenance System

[34] The winter maintenance system for the Mall is based on the Services Agreement between Triovest and Pioneer dated September 24, 2012. Pursuant to that agreement, Pioneer was the contractor responsible for winter maintenance for most of the exterior areas of the Mall. I accept the evidence of John Scanlon (“Scanlon”) who testified for Pioneer that, pursuant to the Services Agreement, Pioneer was responsible for maintaining all of the black asphalt exterior areas of the Mall, including the parking lots, roadways, and the crosswalk in question. Scanlon testified, and I accept, that Pioneer was not responsible for any of the sidewalks and stairs, including the concrete sidewalks and the Walmart concrete entrance.

[35] On this point, I reject the evidence of Thomas Falls (“Falls”), a representative of Triovest, who testified that Pioneer was also responsible for winter maintenance of the Walmart concrete entrance and the sidewalk in front of Walmart. In my opinion, Falls had very little knowledge of Triovest’s winter maintenance system as Falls’ position at the time was vice-president of portfolio management; he was not involved with the management of the property at the time. Further, Falls’ evidence on this point made little sense as the evidence shows that Pioneer’s snow removal trucks and sanders could not have gained access to the Walmart concrete entrance as these machines were too big to get past the vertical bollards that formed a boundary between the concrete entrance and the black asphalt.

[36] Schedule “C” of the Services Agreement, which is entitled “Snow Plowing Specifications,” provides the specifications for the services that were to be provided by Pioneer. Most of those specifications deal with snow removal.

[37] In summary, section 1 of Schedule “C” provides that all property entrances, receiving dock areas, courtyards, roadways, driveways, parking lot stalls, fire routes, and loading docks must be cleared of snow accumulations in excess of 3.5 centimetres by 7:00 a.m. each morning.

[38] Section 2 of Schedule “C” allows Pioneer to temporarily pile snow, after heavy accumulations, in the parking lot on the north side of the Mall away from Walmart, provided that the temporary snow piles are moved to the actual snow storage areas at the back of the property within 24 hours after the snowfall.

[39] Section 5 of Schedule “C” provides that in the event of a “major snowfall during the day” Pioneer is required to dispatch an employee to operate the skid steer vehicle within one hour of being contacted to clear roadways and vehicle entrances and exits and apply salt as required or directed.

[40] The word “crosswalk” does not appear in the Services Agreement, but the parties agree that the references to “roadways” and to “fire routes” in Schedule “C” would include the crosswalk in question.

[41] Also, there is no specific provision in the Services Agreement with respect to freezing rain. The plaintiff’s position is that the Services Agreement is silent as to any maintenance that relates to freezing rain, but the defendants’ position is that the issue of freezing rain is covered by section 3(b) of Schedule “C” which reads, “All vehicle entrances and exits, roadways, driveways, parking stalls and loading docks to or on the Property are to be kept ‘ice free’ throughout the Term.”

[42] It is common knowledge that freezing rain can cause ice to accumulate on road surfaces. Although section 3(b) is not specific with respect to freezing rain, I accept that an icy condition caused by freezing rain would engage this section of the Services Agreement.

[43] In addition, I find that there is nothing in the Services Agreement that deals specifically with the obligation of Pioneer or Triovest to monitor or inspect the exterior areas of the Mall. In particular, there is nothing in the agreement that states that Pioneer is required to monitor for conditions such as a major snowfall or icy conditions, or in the alternative, that Triovest will monitor for those conditions and bring them to Pioneer’s attention when services are needed.

[44] Further, I find that there is no other agreement or understanding between Pioneer and Triovest that specifies or clarifies the responsibilities of Pioneer and Triovest for inspecting or monitoring the condition of the property for the purpose of winter maintenance.

[45] Despite that finding, I accept that Pioneer and Triovest both conducted some modest inspection and monitoring of the Mall exterior areas. I find that a Pioneer supervisor would on occasion “patrol” various properties, including the Mall, for which Pioneer had winter maintenance agreements. I also find that Triovest employees were required to complete inspection logs during their shifts with respect to certain parts of the Mall.

[46] In both cases, I find that Triovest and Pioneer took an informal, casual approach to inspecting and monitoring the exterior areas of the Mall. Further, I find that what was inspected, when it was inspected, and by whom, is unclear, as I will discuss later in this decision.

The Records of Pioneer and Triovest

[47] Pursuant to section 7 of Schedule “C”, Pioneer had a contractual duty to keep records of its work, including a description of the work done, the date and time the work was done, the amount of salt used, and where the salt was spread. I find that Pioneer breached this section of the Services Agreement by failing to keep the required records. That breach was acknowledged at trial by Scanlon.

[48] Pioneer has some written records that relate to this event in the form of employees’ timesheets and supervisors’ diaries for the relevant days. Pioneer’s records provide basic information from which I can make some findings of fact as to the work done by Pioneer employees, but the records are generally sparse, cryptic, and difficult to read. Because Pioneer was required to keep detailed records and did not do so, I find that any ambiguity in Pioneer’s records must be interpreted against Pioneer’s interests.

[49] Although Triovest did not have a contractual duty to maintain records, I find that Triovest’s attempt at record keeping was below the standard expected of a responsible property manager. If an occupier wishes to rely on its inspection logs to establish that it conducted reasonable inspections, it is incumbent upon that occupier to maintain inspection records that are legible and understandable.

[50] The Triovest records were produced through Falls’ testimony. I find that Falls was a very poor, unreliable witness, primarily because Falls’ duties at Triovest did not include property management, and he knew very little about how Triovest managed the property in question. This is evidenced, as discussed earlier, by the fact that Falls clearly testified in error when he said that Pioneer was obliged to do winter maintenance on the Walmart concrete entrance.

[51] Falls’ lack of knowledge is further evidenced by the fact that he testified in error on his examination for discovery in February 2020 when he said that once the Services Agreement was signed, all responsibility for winter maintenance belonged to Pioneer, and Triovest was no longer involved. To be fair, Falls corrected that answer a few days after his examination for discovery when, through counsel, he said that one of the duties of the Triovest maintenance team was to do “regular inspections” of high traffic areas and document the status of the exterior areas.

[52] It was not until Falls provided the above-mentioned correction, after his examination for discovery, that Triovest produced the inspection logs that were completed by Triovest employees between January 28 and 30. Each Triovest log sheet contains a preprinted list of areas of the Mall and columns with headings such as “snow”, “cleaned”, and “salted”. The boxes on the sheets can presumably be filled in by any Triovest employee who does an inspection.

[53] There are two problems with the Triovest log sheets. First, the areas of the Mall are not well defined, and therefore it is difficult to determine which, if any, of those areas includes the crosswalk. Second, the limited notations in the logs by Triovest employees are difficult to comprehend, except for a few instances in which times have been recorded.

[54] As to whether any of the listed areas include the crosswalk, there are two areas that could be relevant to this case. Under the title of “Entrance” each log sheet has a list that includes “Walmart Building”. Also, under the title of “Sidewalks” each log sheet has a list that includes “Front of Walmart”.

[55] In his affidavit, Falls swore that these two areas included the crosswalk in question. However, in cross examination, Falls agreed that “Sidewalks-Front of Walmart” referred to the Walmart concrete entrance. He believed that “Entrance-Walmart Building” included the crosswalk.

[56] I find that Falls has no knowledge of how Triovest defined the areas listed in these log sheets. Falls acknowledged that he only discovered these log sheets after his examination for discovery. In my view, Falls was merely reading these log sheets to the court. Moreover, I felt that Falls tried to interpret the log sheets in a manner that he felt would be most beneficial to Triovest. His testimony on this point has little true value.

[57] However, I find that the Triovest log sheets record some type of inspection. I agree that “Entrance-Walmart Building” must be a different space than “Sidewalks-Front of Walmart”. Accordingly, I accept on a balance of probabilities that “Entrance-Walmart Building” is an ill-defined exterior area of the Mall, but that it likely includes the crosswalk.

[58] As to the difficulty interpreting what is recorded in the Triovest inspection logs, it is important to note that Triovest employees were only required to check high traffic areas to see if Pioneer had done its job; Triovest employees did not clean, sand, or salt any area. Therefore, any notation in a Triovest log sheet by a Triovest employee would, at best, record something that had been done by Pioneer at some unknown time prior to the notation being made.

[59] I find that the first log sheet for January 29, for the 4:00 a.m. to 2:00 p.m. shift, contains some relevant information. In that log, a Triovest employee has written the time of 6:00 a.m. under the columns “cleaned” and “salted” for the “Entrance-Walmart Building”. That entry does not clearly explain what part of the area was cleaned and salted, or when it was cleaned and salted. However, I accept that this log sheet establishes that a Triovest employee observed the existence of this condition at 6:00 a.m.

[60] I find that the second log sheet for January 29, for the 2:00 p.m. to 10:00 p.m. shift, is almost entirely useless as it contains one single line that is drawn through the heading “salted” for all the areas on the sheet with a note at the top that reads “2 - 6 pm salted”. If this means that the single line was drawn in that time period, it is more probable than not that the notation was made after the plaintiff fell. Moreover, the one single line through the entire log covering a four-hour window indicates a very cursory inspection. There is very little else on that sheet.

What Winter Maintenance Work Was Done?

[61] From the Pioneer timesheets, the Pioneer supervisors’ diaries, and the weather records, I have no hesitation in finding that there was a major snowfall in Sudbury that lasted for most of the day on January 28, ending at 7:00 p.m. that day.

[62] I find that Pioneer, as required, sent several employees to the Mall to do snow removal and sanding during the day shift on January 28 and during the 12-hour night shift that started at 6:00 p.m. on January 28. During this period, Pioneer employees spent 44 hours on snow removal and 14 hours on sanding at the Mall. That work ended at 6:00 a.m. on January 29.

[63] I find that when snow removal was done by the Pioneer employees on January 28 and overnight into January 29, the snow removal was done by using the temporary measures authorized by section 2 of Schedule “C”. That is, the snow was quickly piled in the parking lot on the north side of the Mall on a temporary basis.

[64] Between the start of the Pioneer day shift at 6:00 a.m. on January 29 and the time at which the plaintiff fell between 3:00 p.m. and 4:00 p.m., I find that there were only three Pioneer employees who did any work at the Mall, namely employees Lawson, Labelle, and Papineau, who worked four hours, one hour, and three hours respectively at the Mall.

[65] The diary of the day shift supervisor for January 29 reads in part, “hauled all snow from front of mall to back of mall”. Therefore, I find that one of the jobs performed by the Pioneer employees on the day shift was moving the snow that had temporarily been placed in piles on the north side of the parking lot to the storage area at the back of the Mall.

[66] To move the snow from the front of the Mall to the back of the Mall required the use of a loader. The records show, and I accept, that employee Lawson operated a loader for four hours that day. Therefore, I find that the four hours worked by Lawson were all spent using the loader to move the snow from the temporary piles to the back of the property. I find that no other snow removal or plowing was done during the day shift prior to the plaintiff’s fall. Specifically, there was no snow removal or plowing of the crosswalk after 6:00 a.m. on January 29 prior to the plaintiff’s fall.

[67] I find that employee Papineau worked at the Mall for three hours during which he used a sander for 2.5 hours to spread a sand-salt mixture over the entire parking area, including the crosswalk. I am unable to determine what job was done by Labelle for the one hour that he worked at the Mall that day.

[68] There is a contentious issue as to when these three employees conducted their work at the Mall on January 29. The timesheets only show that the hours worked by these employees were worked during the day shift. I note that these three employees would also have spent some time that day at other Pioneer maintained properties.

[69] I find that the only logical conclusion as to timing is the one reached by Russell Brownlee (“Brownlee”), the plaintiff’s expert engineer, who assumed that these three employees started work at the Mall at the start of their day shift at 6:00 a.m. for the purpose of completing the work that had been commenced by other Pioneer employees overnight.

[70] Therefore, I find that Lawson, Labelle, and Papineau all started work at the Mall at 6:00 a.m. on January 29, 2013. Lawson used a loader to move snow piles to the back of the Mall for four hours. Papineau used a sander on the entire exterior Mall area for 2.5 hours. By 10:00 a.m. on January 29, I find that all three of these employees had completed their jobs at the Mall and had moved on to another location.

[71] One of the records produced by Pioneer is a page from a supervisor’s diary in which the supervisor wrote that he was “patrolling.” This does not assist the court. Scanlon’s evidence is that the supervisor would patrol many properties during his shift. In this diary note, there is no indication as to when, or if, the supervisor inspected the Mall.

[72] The last recorded inspection of the crosswalk by Triovest, prior to the plaintiff’s fall, was the notation in the log sheet that the “Entrance-Walmart Building” was observed to be cleaned and salted at 6:00 a.m. In my view, this fits with my finding that Pioneer employees had worked overnight to clean the area. By the start of the day shift, the Mall had been almost completely cleaned. The three Pioneer employees on the day shift attended the Mall at 6:00 a.m. to finish the job.

[73] In summary, I find that from 10:00 a.m. on January 29 until the time that the plaintiff fell between 3:00 p.m. and 4:00 p.m. there was no snow removal and no sand or salt treatment at the exterior areas of the Mall, including the crosswalk. In addition, I find that there was no inspection or monitoring of the condition of the exterior areas of the Mall, including the crosswalk, by any of the defendants, after 10:00 a.m. on January 29.

The Condition of the Crosswalk

[74] I find that the removal of the snow from the January 28 snowstorm had been done, pursuant to the Services Agreement, by Pioneer overnight. I also find that the entire exterior area had been sanded overnight and it was sanded again by employee Papineau over the course of 2.5 hours between 6:00 a.m. and 10:00 a.m. on January 29.

[75] For reasons set out below, I reject Brownlee’s opinion that at 3:00 p.m. on January 29 the snow removal was incomplete or that leftover snow remained in the crosswalk from the previous day. I find that the crosswalk was in an acceptable condition as of 10:00 a.m. on January 29.

[76] I find that freezing rain and freezing drizzle started to fall at 11:00 a.m. and continued, with only a brief break around 12:00 p.m., until the plaintiff slipped and fell between 3:00 p.m. and 4:00 p.m. All relevant witnesses, including both expert engineers, agreed that the crosswalk was slippery at the time of the plaintiff’s fall.

[77] Ranger testified that she felt that the parking lot in general was slippery when she walked into Walmart. I felt that Ranger was direct and sincere in her evidence. She knew there had been freezing rain; she did not recall if it was raining at the time she fell. Ranger testified, and I accept, that her clothes became very wet from the wetness in the crosswalk after she fell to the ground.

[78] Marcotte was a cart collector for Walmart. She did not see the actual fall, but she attended to Ranger after she fell. Marcotte has no current memory of the condition of the crosswalk at the time, but her evidence was preserved by her examination in 2018, which she accepted as true. I accept Marcotte’s evidence that the crosswalk was “snow covered, wet, and I know it was slick…slippery slick”.

[79] In light of the weather records, the work records, and the testimony of Ranger and Marcotte, I accept the opinion of Dewan Karim (“Karim”), the defendants’ expert, that freezing rain/drizzle caused an accumulation of a mix of wet slush on the exterior asphalt surfaces, including the crosswalk, and that the crosswalk was slippery.

[80] In summary, I find that the crosswalk at the time of the plaintiff’s fall was wet, slushy, and slippery. The slipperiness was caused by a buildup of slushy ice that had accumulated over the course of several hours as a result of freezing rain and freezing drizzle.

LIABILITY OF THE DEFENDANTS

The Expert Opinions

[81] Brownlee was the plaintiff’s expert engineer. In his opinion, the surface of the crosswalk at the time of the fall was snow-covered, icy, and slippery because snow that had accumulated from the previous day had not been removed from the crosswalk. He was also of the opinion that there had been no inspection of the crosswalk by Pioneer or Triovest on the day in question. Brownlee testified that if the defendants had inspected the crosswalk, they would have noticed that it was slippery and would have addressed the condition.

[82] I do not accept Brownlee’s opinion that there was snow in the crosswalk because snow from the previous day’s snowfall had not been removed. The timesheets show that Pioneer had done a significant amount of snow removal on January 28 and overnight into the morning of January 29. There had been no new snow since 7:00 p.m. on January 28. I find that the snow had been cleared by the start of the day shift on January 29.

[83] As to Brownlee’s opinion regarding inspections, I have found that neither Pioneer nor Triovest inspected the crosswalk after 10:00 a.m. on January 29. I accept Brownlee’s view that had Pioneer or Triovest reasonably inspected or monitored the crosswalk, they would have observed the icy conditions caused by the freezing rain and would have been aware that treatment was required.

[84] The defendant’s expert, Karim, was of the view that Pioneer had removed all the snow and had sanded all areas of the parking area on January 28 and 29, and that Pioneer had done its work properly. He also opined that nothing more could have been done by Pioneer or Triovest that would have made the crosswalk more safe.

[85] Karim’s overall opinion was not helpful. I find that Karim’s testimony, including his expert report, was filled with errors that taint his opinions. Some of these errors were reviewed in my ruling on the voir dire to determine whether Karim was qualified to give expert opinion evidence.

[86] In particular, Karim testified that snow removal was performed by Pioneer on the day shift on January 29. This is a misleading statement. The records clearly show that on January 29, Pioneer employees were not removing snow from the general parking lot, the roadways, or the crosswalk. The snow removal referenced by Karim was the moving of snow from the temporary piles in the north side of the parking lot to the back of the parking lot. This activity did not in any way constitute maintenance of the crosswalk.

[87] In addition, Karim stated in his report that there was a “continuous snowfall” before and after the plaintiff’s fall. This is incorrect. In fact, there was no snowfall from 7:00 p.m. January 28 until midday on January 30. Karim also stated that it was “raining” at 5:30 a.m. on January 29. This is incorrect. There was no precipitation until 11:00 a.m. when the weather records show freezing fog. Karim further stated that there was “snow” on the morning of January 29. Again, this is incorrect.

[88] With respect to the use of salt as a treatment for the crosswalk, I find that Karim was inconsistent throughout his report. At page 12 of his report, he said that conditions were favourable for salt application. At page 14, he said that it was “too cold to apply salt”. At page 15, he said it was “too wet for salt”.

[89] Karim also gave evidence that was inconsistent with the Government of Ontario Guidelines for Highways. In particular, in his report he indicated that winter maintenance requirements and contract agreements required that snow be removed and walkways be treated after the weather event, not during the event. In fact, the Government of Ontario Guidelines for Highways states that highways should be treated before, during, and after the event. Karim could not adequately explain this inconsistency.

[90] In summary, I felt that Karim’s evidence was filled with errors. These errors were either careless errors, or they were deliberate attempts to slant the evidence in favour of the defendants. For these reasons, Karim’s evidence has limited value to this court.

[91] One aspect of Karim’s evidence that I accept is his testimony that salt can only be effectively used during a very narrow temperature window. I also accept that salt is not very effective during a freezing rain event as the salt tends to wash away.

[92] Based on Karim’s evidence, I find that the best treatment for a freezing rain event is a sand-salt mixture. The salt will melt the ice, and the sand will add traction to the ground.

The Liability of Triovest

[93] Triovest was responsible for designing and implementing a reasonable winter maintenance system for the Mall. I accept that Triovest arranged for a winter maintenance system based on the Services Agreement. However, I find that there are unreasonable deficiencies in the system that are highlighted by the circumstances of this case.

[94] An occupier is not required to provide a perfect winter maintenance system. Ice and snow are common occurrences in Canadian winters, particularly in Northern Ontario. Occupiers of shopping malls with exterior parking lots and walkways are not expected to continuously inspect and monitor exterior areas and keep them snow and ice free at all times.

[95] Accordingly, occupiers of shopping malls are expected to provide a reasonable winter maintenance system for the property. The system should clearly provide for monitoring and inspection of the property at reasonable intervals, identify the conditions that are being monitored, define what parts of the property are being monitored or inspected, and set out a reasonable plan to respond to any adverse conditions.

[96] The most significant deficiency in the system in this case is that it does not include any specific provision for inspecting and monitoring the property. There is no reference in the Services Agreement, or in any other agreement, as to who is responsible for inspecting and monitoring to determine whether there was, for example, a major snowfall or icy conditions. Further, the winter maintenance system does not include any consideration of the nature or frequency of any possible monitoring or inspection.

[97] In the absence of a specific provision, it is still possible to infer that one or both of Triovest or Pioneer accepted some responsibility for basic monitoring and inspecting. However, neither Falls on behalf of Triovest, nor Scanlon on behalf of Pioneer, could explain their respective obligations to monitor or inspect. In my view, there was discernible confusion as to the defendants’ respective responsibilities.

[98] I acknowledge that both Triovest and Pioneer engaged in some ad hoc monitoring of the property, but I find that in both cases it was casual, inconsistent, and not well defined. The Triovest inspection logs only show that an employee of Triovest made observations of areas of the Mall at some point during the employee’s shift. The Pioneer records show that a supervisor performed a “patrol” of the properties for which Pioneer was responsible, including the Mall, during some shifts. The frequency and nature of the patrol was never explained.

[99] For these reasons, I accept the plaintiff’s submission that the defendants did not provide a reasonable winter maintenance system as there was no specific provision for inspection and monitoring, and to the extent that there was any understanding between the parties for inspection and monitoring, the terms were unclear and ambiguous.

[100] I find that this deficiency in the system meant that there was no obvious trigger for the provision of Pioneer’s services. This created the potential for a delayed response to any adverse conditions that developed on the roadways and walkways at the Mall. If the defendants happened by chance to observe poor conditions shortly after they arose, then Pioneer could clear and treat the property in a timely manner. However, if the casual approach to monitoring and inspection did not catch the poor conditions quickly, then those poor conditions would remain for an unreasonable length of time before they were properly treated.

[101] I also find there is a deficiency in the winter maintenance system with respect to freezing rain. The Services Agreement deals primarily with snow removal. There are triggers in the Services Agreement for snow removal by Pioneer, and what Pioneer is required to do regarding a snowfall is well defined. However, there are no similar details with respect to freezing rain.

[102] The requirement in Schedule “C” that Pioneer keep the roadway “ice free” is an attempt at dealing with freezing rain. However, I accept Scanlon’s evidence that it is impossible for Pioneer to continuously keep any road surface ice free. That is, there must be a grace period during which Pioneer has the opportunity to become aware of the icy condition and treat it. Generally, I accept Scanlon’s evidence that Pioneer was required to keep the surfaces “as close as reasonably possible” to ice free.

[103] Even on the assumption that the standard is “as close as reasonably possible”, I find that the winter maintenance system does not contain reasonable provisions for dealing with the effect of freezing rain on the property. I find that the deficiencies in dealing with freezing rain overlap with the general deficiencies in the system with respect to monitoring and inspection but extend further. There should have been specific provisions that included who would inspect and monitor for freezing rain, how the inspection and monitoring would be done, what events would trigger a response to freezing rain, what treatment or services would be provided, and how quickly the treatment would occur.

[104] None of these provisions were in the Services Agreement, nor were they stated in any other document. This, in my view, is an unreasonable gap in the winter maintenance system that again creates the potential for delayed treatment of adverse conditions on the property.

[105] A further deficiency in the winter maintenance system relates to the crosswalk. I accept that the crosswalk in question was a heavily used pedestrian traffic area. The purpose of the crosswalk was to funnel customers from the parking lot to the Walmart front entrance. I agree that the crosswalk should be given more attention than the outlying areas of the parking lot. There was no provision in the winter maintenance system to provide extra sanding, salting, clearing, or inspecting of the crosswalk. It was simply plowed and sanded in the same manner as the rest of the large black asphalt area. In my view, the fact that the crosswalk was not prioritized in the winter maintenance system is also unreasonable.

[106] In summary, for the above-mentioned reasons, I find that Triovest failed to provide a reasonable system for winter maintenance.

[107] Compounding the problem, I find that Triovest knew, or should have known, that the system lacked specific monitoring and inspection provisions, and, given that knowledge, Triovest should have regularly and frequently inspected the property in a systematic manner. At the very least, Triovest had an obligation to regularly monitor the property to ensure that Pioneer had properly done its work.

[108] From the Triovest records, I find that Triovest’s last inspection of an area that included the crosswalk was at 6:00 a.m. on January 29, more than nine hours before the plaintiff fell. Further, other than the heading of “cleaned” and “salted”, there are no details as to what the Triovest employee observed in the crosswalk at that time. I find that this “inspection” falls short of Triovest’s responsibility to regularly inspect and monitor the property and monitor Pioneer’s work.

[109] For all of these reasons, I find that Triovest did not take reasonable steps to make the premises reasonably safe for persons who enter onto the property, contrary to s.3(1) of the OLA.

The Liability of Pioneer

[110] Strictly speaking, Pioneer is in breach of Schedule “C” of the Services Agreement at section 3(b) because Pioneer failed to keep the premises “ice free”. If Pioneer is held to the strict reading of the contract, Pioneer failed to provide services as agreed. However, as I discussed earlier, I accept that the parties never intended that Pioneer continuously keep the property ice free. Rather, I find that Pioneer was required to keep the property as close as reasonably possible to ice free.

[111] Even accepting this lower standard, I find that Pioneer failed to meet its obligations. I find that Pioneer had an implied duty to inspect and monitor the property that arose out of the Services Agreement. To keep the property as close as possible to ice free, Pioneer had to make itself aware of the conditions on the property. Pioneer could only fulfil its duty if Pioneer monitored either the weather conditions or the property or both. Therefore, I find that Pioneer’s obligation to keep the property ice free included Pioneer’s responsibility to inspect and monitor the property.

[112] There is no evidence that Pioneer, in fact, inspected this particular property on this day after 10:00 a.m. As discussed, a Pioneer supervisor was “patrolling” that day, but there is no indication that the supervisor attended at the Mall at any time between 10:00 a.m. and 4:00 p.m. This is an unreasonable approach to inspection and monitoring during a freezing rain event.

[113] Accordingly, I find that Pioneer failed to meet its obligations as it did not reasonably inspect and monitor the property. In the alternative, if Pioneer did inspect and monitor the property, Pioneer failed by not responding to the obvious icy conditions on the property.

[114] Furthermore, freezing rain commenced at least four hours prior to the plaintiff’s fall. Even without any inspection of the Mall premises, every party to this action, including Pioneer, Triovest, and the plaintiff, should have known that freezing rain would cause the parking lot and the crosswalk to be slippery. Given this knowledge, Pioneer unreasonably failed to respond to the icy conditions on the property.

[115] For these reasons, I find that Pioneer failed to meet its obligation under s.3(1) of the OLA.

The Defendants’ Collective Liability

[116] As indicated above, I find that both Triovest and Pioneer failed to meet their obligations under s.3(1). Triovest failed to provide a reasonable winter maintenance system, and Triovest failed to reasonably inspect the property and/or monitor the work done by Pioneer. Pioneer failed to reasonably inspect and monitor the property, and Pioneer failed to keep the property as close as reasonably possible to ice free.

[117] I further find that these breaches of the OLA resulted in an unreasonable delay in inspecting and monitoring the property. Triovest did not inspect the crosswalk after 6:00 a.m., and Pioneer left the property by 10:00 a.m., approximately nine hours and five hours respectively prior to the plaintiff’s fall. This lack of inspection caused a delay in providing reasonable treatment of the slippery conditions that commenced at approximately 11:00 a.m. I find that the resultant delay in treatment of the property was a direct cause of the plaintiff’s slip and fall.

[118] I also reject Karim’s opinion that there was nothing that Pioneer or anyone could have done to treat the property for ice or slush during the freezing rain event. I find that if the defendants had monitored the property, and observed the icy conditions, Pioneer could have applied a sand-salt mixture that would have made the crosswalk less slippery.

[119] For these reasons I find the defendants collectively liable to the plaintiff for breach of s.3(1) of the OLA.

CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF

[120] There is no doubt that Ranger knew that the conditions in the crosswalk were slippery. The defendants’ position is that Ranger fell in the crosswalk, in part, because she was in a hurry, and she was not keeping a proper lookout.

[121] The defendants rely on Ranger’s evidence that she had been motioned to proceed across the crosswalk by the driver of a vehicle. Therefore, the defendants submit that Ranger must have been in a hurry. The defendants also rely on Ranger’s testimony that she did not look down before or after she fell, and she could not fully describe how she slipped.

[122] In my view, neither of these points raised by the defendants have merit. There is no evidence that Ranger was in a hurry or moving quickly. She testified that she was being careful while she walked. She knew that the property was slippery. Any suggestion that she moved quickly because a driver had motioned to her to cross the roadway is mere speculation.

[123] As to whether she was keeping a proper lookout, the defendants’ position is that Ranger should have been looking at the ground while she walked. I find that this is not a reasonable expectation. Ranger was crossing a travelled portion of a roadway and there was at least one vehicle in the vicinity. I find that a reasonable person, in the circumstances, would keep her eyes on vehicular traffic to ensure that it remained safe for her to enter the roadway. Moreover, Ranger knew that the crosswalk was slippery and wet; she did not need to look down to confirm that condition.

[124] Therefore, I find that Ranger walked through the crosswalk in a reasonable manner. She wore winter boots, she walked carefully, she was aware of the slippery conditions, she kept a watch on the traffic, and she used the marked crosswalk that the defendants had provided for the purpose of moving pedestrian traffic in and out of the store. There was nothing more that Ranger could have reasonably done for her own safety.

[125] Accordingly, I find that there was no contributory negligence on the part of the plaintiff.

CONCLUSION

[126] For the above-mentioned reasons, I find that the defendants collectively breached s.3(1) of the OLA, and that the defendants are collectively 100 percent responsible for the plaintiff’s damages. I find that there was no contributory negligence on the part of the plaintiff. Judgment will go accordingly.

[127] If either party wishes to make submissions as to costs, I direct that the party seeking relief shall contact the trial co-ordinator at Sudbury within 20 days of the release of this decision to arrange a date for a costs hearing by Zoom videoconference. The parties shall file their costs outlines and written costs submissions, no longer than five pages, through CaseLines at least seven days prior to the hearing. If no arrangements are made for a costs hearing within this time frame, the parties will be deemed to have settled all of the costs issues as between themselves.

J. R. Henderson J.

Released: May 2, 2024