Court File and Parties

COURT FILE NO.: CV-18-00610617-0000 DATE: 20240624

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIE-JEANNE KARAKE Plaintiff – and – 741935 ONTARIO INC. o/a PARTY SUPPLY DEPOT LTD. and BAYVIEW SUMMIT DEVELOPMENT LIMITED Defendants

COUNSEL: Darryl Singer, Jillian Carrington, and Regeena Alapat, for the Plaintiff Chad M. Leddy, for the Defendants

HEARD: December 12, 2023

Justice J.S. Shin Doi

[1] The Plaintiff seeks damages for a slip and fall incident which occurred on the steps of a store on a snowy winter day. It is the Plaintiff's position that the Defendant Bayview Summit Development Limited failed its duty to take reasonable care to see that she was reasonably safe while on the premises. The Plaintiff concedes that the Defendant took some measures to salt the premises but argues that the measures were insufficient to discharge the Defendant’s obligations.

[2] I find that the Defendant is 75% liable and the Plaintiff is 25% contributorily negligent for the slip and fall incident. The Defendant did not meet its duty of care to see that the Plaintiff was reasonably safe on its premises. The Defendant did not have a sufficient system of inspection, monitoring, and maintenance of the steps where the Plaintiff fell. The Plaintiff did not exercise caution when climbing the steps as she did not keep a proper lookout ahead of her and did not use the handrail.

Facts

[3] The parties agreed to a Statement of Facts, an excerpt of which is set out below.

[4] The fall occurred on the evening of December 12, 2017 on or near the exterior concrete steps leading to a Party Supply Depot store, in a plaza located at 92 Doncaster Avenue in Thornhill, Ontario (the “Store”).

[5] The Plaintiff said that as it was snowy she had worn a winter jacket and winter boots that day. She finished her workday as a grade four teacher at approximately 3:00 p.m. on the day of the accident. She drove to a nearby grocery store, where she shopped for about 15 to 20 minutes. She then drove to the Store and arrived at the Store at around 3:30 p.m. or 4:00 p.m. She had been to the Store many times prior to the incident.

[6] The Store has two parking locations where customers can park – a parking lot at the front and one beside the Store (to its left as one is looking at the Store). Upon arriving at the parking lot, the Plaintiff parked her vehicle at the side of the Store as there were no spots close to the front entrance of the Store.

[7] From the side parking lot, there is a sidewalk that leads along the front of the Store. The Plaintiff found when she initially walked into the Store at between 3:30 p.m. and 4:00 p.m., the sidewalk that she took from her minivan to the front entrance of the Store was not icy.

[8] As the Plaintiff was walking on the sidewalk, an employee from the Store was salting the sidewalk near the front door and towards the Plaintiff. The Plaintiff had to wait for the employee to finish salting, and then followed the employee into the Store. The Plaintiff then spent about one-and-a-half to two hours shopping inside the Store.

[9] After paying for the items that she purchased, the Plaintiff did not immediately bring her purchases to her vehicle as it was dark outside and there was snow. The Plaintiff chose to leave her shopping cart between the two doors at the front of the Store and exited the Store by the same sidewalk path along the Store to get to her minivan in order to drive the vehicle closer to the Store. As she walked from the Store to her vehicle the Plaintiff observed that the sidewalk running along the front of the Store was salted and it was not icy. The weather was snowier when she exited the Store and the Plaintiff had to remove snow from her minivan when she returned to it.

[10] The Plaintiff then drove her vehicle from the side of the Store and parked in front of the Store close to the curb near the concrete stairs so she could more easily transport what she had purchased from the front of the Store to her vehicle. The Plaintiff stepped out of her minivan onto the parking lot, which she observed was snow covered. The Plaintiff stated she then cautiously walked along the driver’s side to the rear of her minivan to open the trunk. The Plaintiff stated that she was not running or rushing. She did not remember if she felt the crunch of salt under her feet. She was not sure if she saw salt on the parking lot surface or not.

[11] The Plaintiff subsequently walked from the rear of her minivan back towards the steps, walking on the pavement along the left side of her car. The Plaintiff stated she was not rushing. The Plaintiff could not recall if she looked down at the first step before she stepped up onto it, although she stated she knew the step was there. There was a reflection from the light on the stairs. The Plaintiff was aware there was yellow paint on the edge of the steps.

[12] The Plaintiff said she did not inspect the stairs for ice before stepping onto the first step. The Plaintiff stated that at the time she was not on the lookout for hazards or slippery things on stairs in the wintertime because when she went into the Store, she trusted that everybody was doing what they were supposed to do.

[13] At the time of the fall, there was no snow on the steps of the stairs as the Plaintiff was able to see the yellow paint marking the steps. The Plaintiff stated that she intended to grab onto the handrail before she stepped onto the first step, but she did not do so before stepping up as the handrail was on the far side of the staircase, a few steps away from her.

[14] The Plaintiff said she stepped up onto the first stair with her right foot first. She said that the minute she put her right foot down on the step, she “flew”, and then her body landed in the snow to the left of the stairs. She did not land on concrete. She could not recall which direction her right foot went because it all happened quickly. She said she assumes she must have put out her left arm and hand to break her fall as a reflex.

[15] After the Plaintiff fell onto the snow-covered grass hill adjacent to the stairs, and was injured, she tried to stand up but she could not as the hill was slippery. She subsequently crawled up the hill, and then made her way back onto the stairs, and went into the Store to seek help.

[16] The Plaintiff was assisted by a customer around the front doors of the Store and eventually went inside the Store. The Plaintiff then called her husband. The Store owner Melvyn Grevler called the ambulance at 5:32pm to seek assistance for the Plaintiff. The Plaintiff said she recalled that one of the paramedics commented to the other that the staircase was slippery. The Plaintiff’s son and husband came to the scene and the Plaintiff’s son took photos of the area of the accident. The Plaintiff said her son told her the stairs were slippery.

[17] The Plaintiff’s son also took brief video footage showing the stairs. Between the time of the Plaintiff’s fall and the time the photos were taken by the Plaintiff’s son, no salting or cleaning was done to the area captured in the photos. The Store owner Mr. Grevler notified the landlord’s supervisor Warren Murray about the loss of December 13, 2017.

[18] As recorded by Environment Canada, the temperature at Pearson Airport on December 12, 2017 ranged from -2.6 degrees Celsius to -11.7 degrees Celsius. There was about 5.6 cm of snow recorded at that location that day, with wind gusting to 57 km per hour. The temperature there was -8.9 degrees Celsius at 5 p.m. that day. Snow or blowing snow was recorded throughout the day up until 4 p.m., and the exact conditions at 5 and 6 p.m. were not available. As recorded by Environment Canada, the temperature at Buttonville Airport on December 12, 2017 ranged from -3.0 degrees Celsius to -13.2 degrees Celsius. There was about 7.8 cm of snow recorded at that location that day, with wind gusting to 48 km per hour. The temperature there was -8.6 degrees Celsius at 5 p.m. that day. The location of the Store is roughly on a straight line between Pearson Airport and Buttonville Airport, about three-quarters of the way towards Buttonville, so weather conditions at the location of loss were likely similar to those recorded at the two airports that day.

[19] The Defendant Bayview Summit Development Ltd. was responsible for exterior winter maintenance on the sidewalk abutting the Store and the exterior concrete staircase leading to the Store from the parking lot. The landlord had contracted with a third-party contractor to maintain the parking lot but used its own forces to do winter maintenance on sidewalks and exterior stairs.

[20] Tony Palhinha, an employee of Bayview Summit Development Ltd., carried out winter maintenance on sidewalks and exterior stairs throughout the plaza containing the Store. He has been working as a caretaker for the landlord since 1988 and was very familiar with the property.

[21] He said during the winter he will shovel snow from, and apply salt to, the concrete walkways and stairs near the store. He is normally assisted by another caretaker, Carlos Melo. Mr. Palhinha recalled that on December 12, 2017 it was cold and windy and had been snowing a lot on the morning or the date of loss. He and Mr. Melo did maintenance work at the plaza including the store on the date of loss and on the days leading up to that date. They cleared snow using shovels and did salting by spreading salt by hand from a bucket they would refill.

[22] On the date of loss, Mr. Palhinha and Mr. Melo first attended the plaza in the morning carrying out winter maintenance on the subject stairs and the walkway outside the Store. Maintenance records show that work was done in the plaza containing the location of loss from 9:56 a.m. to 10:15 a.m.

[23] Although not shown on the maintenance log, Mr. Palhinha said that they returned at around 2 p.m. that same day and did further maintenance, including re-salting the sidewalk and the concrete stairs outside the Store. Mr. Palhinha said that he checked the area outside the Store when he finished work for the day at around 3:30 p.m. and believes the stairs and walkway outside the Store were well salted. The Store owner Melvyn Grevler said that the caretaker or the caretaker’s assistants definitely came back and salted the area in the afternoon at around 2 or 2:30 p.m. He said that was the only return visit in the afternoon that he was aware of, that being one he caught.

[24] Mr. Palhinha could not recall how much salt they used on the date of loss, but said they will often use about seven or eight 20 kg bags of salt per day to salt surfaces in the plaza including the store and thinks they likely used around that amount that date. Mr. Murray stated that he had been notified about the fall by the owner of the store, Mr. Grevler. Mr. Murray states that he had spoken to Mr. Palhinha after being contacted, and asked him what services he did on the date of the accident. He said that Mr. Palhinha informed him that they had shovelled snow and salted the steps on the morning of the date of loss, and returned at approximately 2 p.m. that day and re-salted the stairs.

[25] Mr. Grevler, the owner of the Store, said he keeps a bucket of salt handy and the Store’s staff will salt the stairs and walkway outside the store when they deem it advisable or necessary to do so. Mr. Grevler said that during a storm, he or his employees would check the condition of the walkway and stairs in front of the Store at least hourly. Mr. Grevler said that on the date of loss, Michelle Stewart, an employee of the Store, salted the steps hourly. Mr. Grevler said Ms. Stewart applied salt at least four times and he applied salt at least once. Ms. Stewart states that she agrees with that.

[26] The Plaintiff recalled that upon arriving at the Store around 3:30 p.m. or 4:00 p.m., she saw it was snowing and she observed that an employee of the Store was putting some salt on the sidewalk running from the side parking lot to the Store door. The Plaintiff did not observe the female employee salt anyplace else. Mr. Grevler said that Ms. Stewart last salted the stairs prior to the Plaintiff’s fall between 4:30 pm and 5:00 p.m. on the date of loss. Mr. Grevler did not watch her do it. Ms. Stewart states that she agrees with that timing.

Occupier’s Liability and Standard of Care

[27] The Defendant is an occupier and had a duty of care to the Plaintiff. Pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”), the Defendant has responsibility for and control over the condition of the premises. Section 3 of the Act stipulates, 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 the premises are reasonably safe while on the premises. Subsection 4 of the Act provides that the duty of care provided for does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

[28] In Waldick v. Malcolm, the Supreme Court of Canada held that factors which could be part of an assessment of what constitutes reasonable include the local custom, 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 plaintiff, the length of the pathway, and rural and residential premises. In Kerr v. Loblaws Inc. 2007 ONCA 371, the Ontario Court of Appeal held that the standard of care on an occupier is a standard of reasonableness, not perfection.

[29] In Lutz v. City of Toronto (1975), 8 O.R. (2d) 16, the court apportioned negligence in a slip and fall case involving snow and ice, 75% for the defendant and 25% for the plaintiff. The court found on a balance of probabilities that the sidewalk was icy and that the defendant did not have a proper system of inspection which could have detected the dangerous condition. The court further found that the plaintiff was negligent in failing to keep a proper look-out ahead of him as he walked along the street, or the plaintiff was negligent in failing to perceive that it was icy and slippery, failing to exercise more caution in walking over it while wearing leather soles, and failing to walk along that portion of the pavement which was bare.

[30] Liability was also apportioned 75% for the defendants and 25% for the plaintiff in Wilson v. 356119 Ontario Ltd. et al., 2023. The court found that although the defendants led evidence to show that they had a regular regime of inspection, maintenance, and monitoring, 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. The maintenance logs supported the evidence given by the defendants, and photos were taken by the contractor to confirm sidewalks were salted. Nevertheless, the court found that the defendants failed to ensure that the parking lot was safe for its customers.

Analysis and Disposition

[31] The Defendant failed to take such care as is reasonable to see that the Plaintiff entering the Store from the steps was reasonably safe.

[32] The Defendant’s system of inspection, maintenance, and monitoring of the condition of the steps was insufficient. The incident happened on a cold, snowy day with temperatures below freezing. There is evidence that there was salting of the steps by the Defendant but it is problematic that the maintenance log does not capture the frequency of the salting of the steps. The Defendant submits that its employee salted in the afternoon around 2 or 2:30 pm. The Defendant also submits that the Store’s employee salted the steps hourly. The Defendant’s employee stated that during a storm, his employees would check the condition of the walkway and stairs in front of the store at least hourly. However, the maintenance log ends at 11:07 am and the incident occurred at approximately 5 pm. The maintenance log does not support the evidence of the Defendant. There is no contemporaneous record evidencing the salting and inspection around the time of the incident.

[33] The Defendant submits that the Store’s employee last salted the steps prior to the Plaintiff’s fall at 4:50 pm. The Plaintiff observed the Store’s employee salting the sidewalk but not the steps. Image 4: Close-up photo showing the bottom step post-accident was submitted by the parties. That image shows salt on the steps and in the expansion joint between the steps and the curb. It is not clear in Image 4 whether the salt actually landed in the area where the Plaintiff stepped and fell or whether the salt was stopped from landing in the area by the expansion joint. There is no dispute as to where the Plaintiff placed her foot and fell because the parties submitted Image 2: A marked photo showing the Plaintiff stepped before falling. Grains of salt are visible on the steps and in the expansion joint but not in Image 3: Photo showing the three stairs post-accident and Image 4 where the Plaintiff first placed her foot. The Defendant argues that the salt is not visible at the location because the photo was taken by the Plaintiff’s son later in the evening after the fall. However, I find it problematic for the Defendant that the grains of salt are clearly visible in all areas of the steps at that time of the evening but not at the location where the Plaintiff placed her foot and fell. There is also a video submitted by the Plaintiff showing her son sliding his foot on the step to indicate the slippery condition of the step.

[34] The Defendant is not entirely liable for the slip and fall incident. The Plaintiff did not exercise sufficient caution. She did not lookout for ice or perceive that the steps maybe slippery on a cold winter day with temperatures below freezing. She also did not hold the handrail when starting her climb up the steps. The Plaintiff admitted that she did not inspect the steps for ice and was not on the lookout for hazards or slippery things on stairs. She also stated that she intended to grab onto the handrail before she stepped onto the first step, but she did not do so before stepping up as the handrail was on the far side of the staircase, a few steps away from her. The Plaintiff argued that she could not grab the handrail because of the location of the handrail. The Defendant argues that it would have been more prudent than not to grab onto the handrail. I agree with the Defendant. I find that the Plaintiff was negligent in failing to keep a proper lookout ahead of her and failing to exercise more caution. She should have walked towards the handrail as she was wearing proper winter footwear, and then she should have grabbed the handrail prior to taking her first step. Her failure to do so makes her contributorily negligent for the incident.

[35] I apportion liability for the slip and fall incident 75% for the Defendant and 25% for the Plaintiff based on the facts and caselaw. I understand that the parties have agreed on damages. If the parties are unable to agree on costs, the parties may make written submissions of up to five pages in length, double-spaced, within 14 days.

JUSTICE J.S. SHIN DOI

Released: June 24, 2024

COURT FILE NO.: CV-18-00610617-0000 DATE: 20240624

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MARIE-JEANNE KARAKE Plaintiff – and – 741935 ONTARIO INC. o/a PARTY SUPPLY DEPOT LTD. and BAYVIEW SUMMIT DEVELOPMENT LIMITED Defendants

REASONS FOR JUDGMENT

JUSTICE J.S. SHIN DOI

RELEASED: June 24, 2024