Court File and Parties

Court File No.: CV-19-79729

Date: 2025-07-25

Ontario Superior Court of Justice

Between:

Avery Merkley, Plaintiff

– and –

St. Lawrence College of Applied Arts and Technology and David Brown Construction Ltd., Defendants

Counsel:

Michael Van Dusen and Matthew Glass, counsel for the plaintiff

Mitchell Kitagawa and Zenah Hassan, counsel for the defendants St. Lawrence College of Applied Arts and Technology and David Brown Construction Ltd.

Heard: February 10, 11, 12, 14 and April 3 and 4, 2025 (Ottawa)

Reasons for Judgment

Hackland J.

Introduction

[1] This is a personal injury claim, pursued under Rule 76, arising from a slip and fall suffered by the plaintiff on January 3, 2019 on the premises of the defendant St. Lawrence College of Applied Arts and Technology ("the College"), located in Cornwall, Ontario. The defendant David Brown Construction Ltd. ("the contractor"), was the College's winter snow and ice removal contractor. The plaintiff suffered a significant fracture injury when he fell. Damages have been agreed. This trial relates to the issue of liability only.

[2] The parties agree that the Occupier's Liability Act R.S.O., 1990, C.O.2 (the "OLA") applies to the College and the contractor in this case. These defendants owed a duty to take such care in all the circumstances as was reasonable to see that the plaintiff was reasonably safe while on the premises. Section 3 of the OLA provides:

Occupier's Duty

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, … are reasonably safe while on the premises.

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

The Facts

[3] The evidence of the Plaintiff Avery Merkley was that on the date of the fall, he was a 19 year old university student living in Ottawa, who was being driven to Cornwall by his mother to attend an appointment at a medical office on the Cornwall campus of the College. He was in the back seat of his mother's SUV on the trip and his mother's partner Dr. Lebel was in the front passenger seat. He said there had been snowfall over the previous two days and the road conditions were "quite bad" on the drive to Cornwall. They arrived at Aultsville Hall, a 3 story office building on the College campus which housed the medical office, at about 11:10 am. The roadway approaching the office building ran along the edge of a parking area and led to a sidewalk leading to the door of the building. He got out of his mother's car and walked behind it as his mother drove away, intending to return to pick him up when he had completed his medical visit. The plaintiff took several steps on the roadway, which had a slight snow covering and then stepped onto the sidewalk leading to the building entrance.

The Slip and Fall

[4] The plaintiff stated "I did not have any difficulty walking on the snow covered asphalt of the parking lot area. As I approached the sidewalk there was a distinguishable difference in the surface of the concrete sidewalk compared to the asphalt of the parking area. The sidewalk looked wet. I could see scattered bits of salt on the sidewalk. I believed it was safe to proceed." He went on to explain, "as soon I stepped on the concrete sidewalk, however, my right foot slipped out from underneath me and I fell hard on the ground, with my torso landing to the right side of the sidewalk. My right leg was underneath me and I felt immediate pain and heard the bones break". He was able to call his mother on his cell phone. She had not yet left the campus property and returned to the scene within minutes. His mother parked her vehicle in a handicapped parking spot beside the walkway and she and Dr. Lebel helped the plaintiff get up and, with their assistance, hobble over and get into the passenger seat of their SUV.

[5] The plaintiff did not recognize he was stepping on ice at the point he lost his footing. He described the sidewalk as having a wet appearance and being very slippery and he noticed pieces of salt on the surface. Observations about the condition of the sidewalk were made by his mother, Mrs. Galarneau and Dr. Lebel and subsequently by several employees of the College who arrived shortly after the fall, as related below.

[6] When Mrs. Galarneau and Dr. Lebel arrived back at the scene and parked their SUV, they observed the plaintiff sitting on the sidewalk, in distress. Dr. Lebel got out of the vehicle and testified that "I was being very careful and shuffling across the sidewalk but, nonetheless, nearly lost my balance as I stepped on to a layer of black ice that covered the walkway. There were bits and pieces of rock salt scattered on the walkway but they had not melted the ice that was covered with a thin dusting of snow. He called out to Mrs. Galarneau to not follow him across the sidewalk because as "it was too slippery". He stated there was a thin layer of black ice covering the sidewalk where Avery had fallen. In his words this was "patchy black ice which made it incredibly slippery."

[7] Mrs. Galarneau's evidence was to the same effect. She disregarded Dr. Lebel's advice to not follow him onto the sidewalk where Avery was laying or sitting, doing what she described as "a slow shuffle" as she crossed the sidewalk. She said "the parking area where I first stepped out of the vehicle was snow covered and was still slippery but not as slippery as the sidewalk. I was wearing winter boots with a soft rubber soul but found it very difficult to avoid slipping as I got to where Avery was sitting on the ground". She went on to testify, "there was no sand or grit on the walkway" and "in the area where Avery had fallen, there was patchy black ice which made it incredibly slippery".

[8] I accept the evidence of the plaintiff (Avery) and of his mother and Dr. Lebel as to the condition of the sidewalk where Avery fell. The reference to patches of "black ice" connotes that patches of ice on the sidewalk were not easily identifiable, rather the appearance was wet and shiny, with visible pieces of rock salt. This is supported by the photographs in evidence, taken soon after the fall by campus security. While the court has given due consideration to an issue raised in cross-examination, that the evidence in chief in the affidavits of Avery's mother and Dr. Lebel concerning the conditions of the sidewalk, is remarkably similar, I do not draw the conclusion that they were colluding or falsely presenting their recollections of the sidewalk conditions.

Defence Witnesses

[9] The court also heard the evidence of 3 defence witnesses who had an involvement with winter sidewalk safety on this campus; Ron Drugge, Peter Sullivan and Jeremy Ruutel.

[10] Mr. Drugge was the site security officer on campus and his duties included attending at the location of any reported accidents. In this incident a person from the medical office in the building which the plaintiff was approaching called him to advise someone had fallen on the walkway. Mr Drugge attended the scene right away. He put this revealing observation in his written report prepared shortly after the incident:

A visitor to the on site medical office, Avery Merkley, apparently slipped and fell where the east parking lot meets the walkway into E 38. Overnight snow had accumulated a few centimeters over some icy patches from previous freezing rain. Contractor D. Brown's crew had been on site clearing snow, sanding and salting the parking lots and walkways and all areas were in fairly good condition however it was still necessary to walk cautiously.

[11] Mr. Drugge sought, in his trial evidence, to resile from the observation in his report that "it was still necessary to walk cautiously", saying this was an observation about general conditions around the campus, not about the sidewalk where the plaintiff fell. I consider this qualification to be self serving and not credible. Mr. Drugge's report, prepared at the time, speaks for itself. Caution was needed, and some icy patches existed. Moreover, the suggestion that the contractor had sanded walkways is not accurate as the evidence was clear, and the defendants admit, that the contractor's practice at that time was to use only salt on campus sidewalks and walkways.

[12] Mr. Sullivan was a snow clearer employed by the contractor. He operated a small Kubota tractor which had a snowblower at the front and a salt dropper at the back. The tractor spread salt from a gravity feed hopper. He said his responsibility was to clear the sidewalks and walkways located across the campus of any ice and snow using the tractor and salt spreading mechanism. He does not remember this incident specifically but knows this particular sidewalk was among those on which he would have spread salt within approximately four hours before the plaintiff's fall occurred. On January 3, 2019 he would have used 25 bags of salt in total over the course of the day, across the various walkways on campus. When asked to explain why he spread only salt on campus sidewalks and walkways, he explained that their former practice was to use a salt and sand mixture but he believes at the contractor's request, at some point they switched to using salt exclusively. He believes the reason for the switch in approach was to avoid tracking sand and grit into the buildings. Mr. Sullivan kept no records that would record what time he spread salt on the sidewalk on this date or how often or in what quantity.

[13] Jeremy Ruutel was with the College's Facility Management Service and his job was to see that the contractor carried out its duties under the winter maintenance contract. He acknowledged this contract required that "snow melt" and not salt be used on walkways, but that the College had agreed to allow the contractor to salt the walkways. He felt that process rendered a satisfactory result, to his observation. He said, "it was my experience that this was effective on walkways in the winter". This witness had no training in the science surrounding salt application as an ice management technique and was not clear why the ice melt requirement for walkways and sidewalks had been abandoned in favour of a salt only practice. Notably, on an ongoing basis a salt and sand mixture continued to be applied to parking areas on the campus, but not to sidewalks or walkways.

[14] In any event, Mr. Ruutel described the walkway where the fall occurred, in his words "the walkway is a high traffic area as there are doctors' offices in the building which are served by the walkway". He took several photos of the area of the fall which were entered into evidence and were referred to by both experts in their reports and in their testimony.

[15] Cameron McPherson testified he was a supervisor employed by the contractor David Brown Construction and managed its Winter Maintenance Agreement (the "Service Contract") with the College which applied to all 3 campuses, including the Cornwall campus. He had some basic training on salt use to control ice conditions and several years' experience. He was not familiar with recommended best practices, or publications on that subject and had no training on salt properties at different temperatures. He was not familiar with the TAC guidelines or the Canadian Parking Association guidelines for the use of salt for ice control on sidewalks.

[16] Mr. McPherson testified the contractor was required to clear snow and manage winter ice conditions for parking lots, driving areas and walkways when more than 5 cm. of snow fell. The Cornwall campus has three large buildings and five parking lots. To facilitate the carrying out of this work, the contractor "monitored weather conditions" and then dispatched appropriate personnel and equipment to perform these functions. These areas of campus were to be cleared by 7 am. He acknowledged the contractor never used Ice Melt, never kept records as required by the contract and never tested the concrete temperature on the sidewalks.

[17] Mr. McPherson also made the following observations in his testimony:

• The contract required us to use ice melter instead of salt however, the College allowed us to use salt. This was discussed at a meeting in 2015 when we took over the contract and all parties agreed that we could use salt instead of ice melter.

• On January 3, 2019 I received a text from Mr. Ruutel who was under the impression that there were no staff of the contractor on site to clear snow. He said Mr. Ruutel was under a mistaken assumption as Mr. Sullivan was already there clearing snow and salting walkways.

• We monitor the weather in the winter constantly using environment Canada and other network data. On January 2, 2019, the day before the incident, it had snowed about 7 cm starting in the evening and it continued to snow overnight into January 3, 2019. It had stopped snowing sometime before the incident, which occurred around 11 am.

• The contract indicated that the college would provide a checklist for snow removal and sanding, but it was never provided to the contractor. However, the contractor would maintain records of services performed, including the time sheets and records of materials used and both parties "seemed to be satisfied with that arrangement."

Expert Witnesses

[18] The court was assisted by the evidence of two expert engineers, Mr. Karim for the plaintiff and Mr. Leggett, for the defendants. They both have studied and written about winter safety issues including commercial snow clearance and ice management. From their evidence, I conclude the key standard of care issue in this case is whether the surface of the sidewalk where the plaintiff fell had been properly treated by the contractor for ice build up in view of existing and forecast weather conditions. Both experts agree that a commercial snow and ice clearance contractor should adhere to certain standards or accepted practices. Both agree that the proper practices are significantly dependent on anticipated weather conditions, which should be carefully monitored. If rock salt is used to prevent or mitigate ice formation, it must be applied properly and only when temperatures are appropriate because salt is only effective within a certain temperature range. Ice treatments should also adhere to the requirements of relevant contracts such as the Service Contract in this case. Also, the experts were aware of the guidelines published by the Transportation Association of Canada (TAC guidelines) and those of the Canadian Parking Association and considered them to be useful and relevant statements of best practices for the use of salt in winter ice management.

[19] As noted previously the Service Contract instructed the contractor that ice melt and not salt was to be used for ice control on campus sidewalks and walkways. The relevant provision stated: "Pure Salt: spreading of pure salt will not be permitted except with the written consent of College representative and only under exceptional circumstances." However, by the time of the plaintiff's fall on January 3, 2019 the contractor, instead of using ice melt (a chemical that prevents ice formation even at very cold temperatures) as required by the contract, had adopted the practice of using salt only, on sidewalks and walkways to prevent ice formation when precipitation and freezing temperatures were forecast. This practice was acquiesced in or permitted by the College for reasons not explained to the court by Mr. McPherson and in the absence of any documentation waiving the requirement to use snow melt on sidewalks or waiving the prohibition on using salt on sidewalks. Accordingly, by the time of this slip and fall incident, the practice being followed by the College's contractor when freezing precipitation was forecast was to spread pure salt on sidewalks or walkways. Ice Melt or Ice Melter as required by the Service Contract or a salt/sand mixture, as recommended by the TAC guidelines was not being used.

[20] I accept the evidence of Mr. Kirwin that "pure salt is ineffective at-10 C or colder" and it is not recommended for use at colder temperatures. For this proposition Mr. Kirwin relies on a publication of the Transportation Association of Canada (TAC) outlining what is described as a "Syntheses of Best Practices – Salt Use on Private Roads Parking Lots and Walkways". His opinion, based on this and similar publications is that pure salt treatment should not be used to prevent ice buildup where temperatures are expected to be -10 C or colder.

[21] In contrast, Mr. Leggett's position, as summarized in his report, is: "while it is agreed that the effectiveness of salt (ie. its melting capacity and the time it takes to go into solution) decreases as temperatures decrease, salt will still have some effect down to its eutectic temperature of -21 C". (emphasis added)

[22] The eutectic temperature of salt is the absolute lowest temperature at which salt will lower the freezing point of water (-21 C). In other words, the contractor's general practice of using only salt to prevent ice formation on sidewalks when temperatures are, for example -21 C or colder, means that the salt is of no effect in such conditions. One might readily infer that treating sidewalks in that fashion could pose a significant safety risk to persons using the sidewalks in very cold weather. Both experts recognized the practice of using only salt to control ice formation in cold conditions was not recommended due to its decreasing effectiveness as temperatures drop.

[23] Returning to the temperatures on the morning of the plaintiff's fall, the evidence is (ex. 5) that during each hour from 2:00 am until 8:00 am the air temperature was -12 C, then from about 9:00 am to 10:00 am it was -11 C and from 10 am to 11:00 am (approximate time of the fall), it was -10 C. Based on the TAC Guidelines and similar guidelines referenced in Mr. Karim's report, the use of salt to prevent ice formation is generally considered to be ineffective and, as noted, is not recommended for use at -10 C or lower. I prefer Mr. Karim's opinion on this point to that of Mr. Leggitt who opined that these temperatures would have been favourable for a salt application, because, although not optimum, it would have had "some effect".

[24] I also respectfully accept the following conclusions from Mr. Kirwin's report as to why the contractor's application of salt on this occasion was not warranted nor consistent with the standard of care for ice prevention (at page 9, reply report):

On the early morning of the incident day (between 5:00 a.m. and 8:00 a.m.), the pavement temperature remained -10°C and/or below for about 4 hours prior to the incident time. In reference to our previous report, the strong bond between the snow layer and pavement would likely have facilitated the formation of an icy surface under cold pavement conditions.

Additionally, applying sand (with a minimum amount of salt to prevent lumping) when the pavement temperatures were below -10°C during the early morning of the incident day would have improved traction on the icy sidewalk surface conditions.

[25] Mr. Leggett emphasized that certain guidelines, such as the Ontario Ministry of Transport maintenance manual, recommends salt for use on high traffic roadways at temperatures as low as -18 C under the right conditions. Mr. Kerwin's response, which I accept, was that this is irrelevant to the application of salt on sidewalks. Very high vehicular traffic on provincial highways can be expected to warm up the pavement surface temperature, something that would not likely occur on pedestrian sidewalks in a college campus. I accept that the TAC guidelines set out the proper and most relevant standards for salt usage at the location of the sidewalk where the plaintiff's fall occurred.

[26] Mr. Leggett points out the most relevant metric is surface temperature, rather than air temperance and that surface temperatures can be somewhat warmer than air temperature. Ideally the contractor could have measured the surface temperature of the concrete sidewalk using infrared thermometers. This was never done. Mr. Karim's view was that given the duration of the cold temperatures and applying certain standard calculations, the difference between air and surface temperatures would be very minimal, perhaps a degree or two. I accept this conclusion.

[27] I do not accept the assertion by Mr. Leggett that the granular nature of salt can effectively substitute for sand as an abrasive to increase traction for pedestrian traffic on sidewalks. This is not consistent with the TAC guidelines nor was it contemplated in the Service Contract. The identified abrasive material in both these sources is sand or a sand mixture at certain prescribed levels.

[28] I agree with and respectfully adopt the following conclusion from Mr. Karim's reply report:

The use of salt during the early morning hours would be unfavorable due to the extreme cold temperatures (pavement temperatures below -10°C) which reduces its ability to form a brine at the surface and eliminate the bond of ice and compact snow with the concrete surfaces unless a higher rate of salt was applied or specialized de-icing chemicals with lower working temperatures were added to improve the effectiveness of a chemical application.

Therefore, a sand application (with the appropriate amount of salt in the mix) in the early morning of the incident day would have been the most suitable treatment; sand (with salt mix) would have provided an immediate traction benefit to mitigate the slippery ice-related condition and was the most suitable treatment to provide traction in extreme cold conditions.

Summary and Disposition

[29] The parties agree that the College and the contractor were occupiers of the premises where the plaintiff, a pedestrian walking on a sidewalk leading to the entrance to a building on campus housing a medical office, fell on a slippery surface. As such the defendants owed the duty of care to the plaintiff prescribed by s. 3 of the Occupiers Liability Act. The case law instructs that in such circumstances the occupier has an evidentiary burden to show that it had an appropriate system of winter snow and ice maintenance in place for persons coming on the property and that the system was working properly at the time of the incident, see Waldick v Malcolm, [1991] 2 SCR 456 and Musa v CCC No 255 2022 ONSC 1030 affirmed 2023 ONCA 605.

[30] The court finds that the defendants did not have a satisfactory system in place for ice prevention on its sidewalks and walkways. The defendants, for reasons of their own, departed from a thorough ice management plan in their Service Contract, in favour of a practice of applying pure road salt to their sidewalks in very cold temperatures and when precipitation at freezing temperatures was forecast in weather reports. Pure salt was used on the sidewalks irrespective of how cold it was or was forecast to be, even on very cold days when salt is chemically ineffective. The salt treatment on College sidewalks never included ice melt or a mixture of sand to promote traction, which was especially important when salt was not working effectively due to significantly cold temperatures.

[31] However, on the morning of the plaintiff's fall when the contractor was spreading salt, beginning at 7 am., temperatures were -10 C or colder for 4 hours leading to the time of the fall. I have accepted the evidence of the plaintiff's expert that the TAC guidelines apply which provide that salt is considered to be ineffective below -10 C and therefore salt alone was not the proper choice of treatment in the circumstances. Even if one were to accept the defence experts view that salt would have had "some effect" at these temperatures, there would be some melting of ice, likely followed by re-freezing, thereby posing an additional slipping risk.

[32] I appreciate the court also has an obligation to go beyond the standard of care issue and ask the causation question. That question is: "but for the compromised or reduced effectiveness in ice prevention resulting from the defendants using pure salt at the temperatures in question and with no sand mixed with the salt to promote traction, would the plaintiff have experienced this slip and fall accident?" While this question is difficult to answer definitively, in all the circumstances the court finds that this causation test has been satisfied by the plaintiff on the balance of probabilities. In other words, had the defendants used a recommended ice mitigation technique in the circumstances of this case, I find the sidewalk would have been significantly less slippery and the plaintiff would not have slipped and fallen.

[33] There will be a finding and a declaration that the defendants are liable for breaching their obligations arising under s. 3 of the Occupiers Liability Act, resulting in the plaintiff's injuries from his slip and fall in this incident. Further, the court finds no evidence of contributory negligence on the plaintiff's part.

[34] I request the parties to attempt to agree on costs of this Rule 76 proceeding, and failing that, to provide the court with a concise written submission (plaintiff) within 30 days of the release of these reasons and the defendants to provide their costs submission within 30 days of receiving the plaintiff's submission.

Justice Charles Hackland

Released: July 25, 2025