In a recent decision dealing with a slip and fall, the Court provides some guidance for condo corporations and their winter maintenance contractors.
Under section 26 of the Condominium Act, condominium corporations are considered the “occupier” pursuant to the Occupiers Liability Act. This means that the corporation has a duty to take reasonable care to ensure that persons on the property are reasonably safe.
Under the applicable municipal by-law, the Corporation was required to keep the property “free of accumulations of snow or ice that might create an accident hazard”.
The Case
The plaintiff slipped and fell on a slippery portion of the roadway after it had been plowed, injuring himself. The snow plow operator who plowed the roadway acknowledged that his duties did not include salting the roadway (he did not have a salt spreader on his truck); this was always a task performed by his boss sometime after it was plowed. The contractor did not have a set schedule, it was done whenever the contractor was able to get to the property.
On this particular incident, the relevant timeline was as follows: salt was applied about 7 hours after the snowstorm began, 3.5 hours after the contractor first arrived on site, one hour after the property had been plowed, and 1.5 hours after the fall.
The question for the court was whether this timeframe and the salting practices utilized on this particular occasion were consistent with a reasonable standard of care for commercial snow removal contractors.
In his testimony, the owner of the snow removal company confirmed he has never taken any formal training and was dismissive that any real science or useful guidelines were available regarding application of salt as part of winter road and parking lot maintenance. He thought experience, hard work, and “on the ground decision making” are what should guide his practices. The judge (and the plaintiff’s expert) didn’t agree.
Sure, these are important – but it’s no substitute for science and industry best practices.
The plaintiff called an expert witness, who provided opinions supported by best practices guidelines well established in the industry. The contractor was not aware of these guidelines.
The contractor had two options during this particular snowstorm to meet the required standard:
- pre-salt the roadway; or
- salt concurrently with, or immediately after, plowing.
Having not done either of these, the contractor was negligent, causing a dangerous icy surface and an unreasonable risk of injury that the court found should have been obvious to a competent commercial winter snow removal contractor. The weather conditions during the storm resulted in it being readily foreseeable that there was a need for timely application of salt.
Fortunately for the corporation, it had a maintenance contract in place which imposed various obligations on the contractor to ensure the property was properly plowed and salted. According to the case, the corporation’s obligations under the Occupiers Liability Act were delegated to the contractor – rendering the contractor liable for the damages. However, even if the contractor is responsible for ensuring the property is safe, taking proactive steps can prevent injuries and litigation headaches.
Though most of us hope Ontario’s Wiarton Willie was right and we’re in for an early spring, it’s never too late to have another look at those winter maintenance contracts and ensure your contractors are aware of (and implementing) industry best practices.
