Now is the Winter of Our Discontent:[1] ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties
By: Michael A. Valdez, Stieber Berlach LLP
Introduction
In the recent decision of Musa v. Carleton Condominium Corporation No. 255,[2] the Ontario Court of Appeal offers clear guidance as to how long a winter maintenance contractor can wait before it must apply salt to an area, a problem which has long plagued both plaintiff and defence lawyers alike.
The Slip and Fall[3]
In the early hours of the morning, on a chilly December 5th just around 4:00 a.m., Ottawa was hit by its first snowstorm of 2016. At about 9:30 a.m. Mr. Wael Musa stepped out from his condo residence onto a plowed lane on the roadway and started walking to his car in the condo parking lot. There were no sidewalks between his condo residence and the parking lot. On his way, he lost his footing, slipped and fell. After landing on his back, Mr. Musa managed to get up and make it to his car. Despite some pain, he was able to drive to work, where his employer pointed out the gravity of his injuries when he attempted to remove his boot.[4] As result of the fall, Mr. Musa sustained a fractured ankle.
At the time of the accident, the roadway had been plowed, but not salted. The owner of the condo, Carleton Condominium Corporation No. 255 (“Carleton”) had contracted out its winter maintenance for the last four years to Exact Post Ottawa Inc., (“Exact Post”), a snow removal contractor. On the day of the fall, Exact Post did not salt the roadway until approximately one and a half hours after Mr. Musa’s fall. Mr. Newman, the Carleton snow plow operator who cleared the snow, was still on site when the fall occurred, and actually witnessed it from inside the cab of his vehicle, from a distance of about 30 feet.[5] After witnessing the fall, Mr. Newman warned another resident of the slippery conditions. Although there was a large box of salt close to where the plaintiff parked his car that could have been applied with a shovel, Mr. Newman did not do so as he believed that this fell outside of his job responsibilities.[6] Mr. Musa sued both Carleton and Exact Post. Prior to trial, the parties all agreed on damages, so the only thing at issue was Exact Post’s liability.
Duty of Care
The parties agreed that Exact Post was an occupier of the condominium property under the Occupiers’ Liability Act,[7] (the “OLA”), which means that Exact Post owed a duty to those walking on the condo grounds to ensure that they were safe. This requires them to have a reasonable system of clearing snow and salting the area, but does not require perfection. This duty also exists, and applies to Exact Post, under the common law.[8]
Exact Post’s Winter Maintenance System
Exact Post’s maintenance system consisted of snow clearing by a snow plow operator, after which Mr. Mitchell, the owner of Exact Post, would personally salt all 14 of his client properties throughout Ottawa, using his pickup truck. Mr. Mitchell lived 30 minutes from Ottawa and accordingly, would have had to travel to get there. He had no established system or method to determine the order in which he would attend at his client’s properties for salt application, but stated that he tried to avoid “zig-zagging” across the city. The plow operators were generally not equipped to carry and apply salt. However sometimes Mr. Mitchell asked them to apply salt with a shovel in particularly icy spots.[9]
Approximate Chronology of Events on Date of Fall[10]
- 4:00 a.m.: Snowstorm begins.
- 7:30 a.m.: Mr. Newman, Exact Post snow plow operator, arrives on site at condo.
- 8:34 a.m.: Mr. Newman phoned Mr. Ross Mitchell, owner of Exact Post, to notify him that he had almost finished plowing.
- 9:30 a.m. Mr. Musa steps out of condo residence onto plowed laneway, then slips and falls. Mr. Newman witnessed the fall and afterwards warned another resident of the “very slippery” conditions.
- 10:00 a.m.: Mr. Mitchell instructs Mr. Newman to leave. Mr. Newman does not apply salt to the road although a box of salt was available that could have been applied with a shovel, because he believed that was not part of his job responsibilities.
- 10:05 a.m. Mr. Mitchell arrives on site at the condo with a load of salt and a salt spreader on the back of his vehicle. He does additional plowing for a little under an hour.
- 10:50 a.m.: Mr. Mitchell applies road salt to the condo property, which took about 10 minutes.
- 11:00 a.m.: Mr. Mitchell leaves the condo.
Trial Decision
The trial focused on whether the Defendant Exact Post’s plowing of the snow and eventual salting of the condo property on the date of the fall, met the standard of care for a professional winter maintenance contractor. While both parties agreed that salting the area was essential to a reasonable winter maintenance system, they disagreed as to how soon the salt needed to be applied. The Plaintiff argued that the area was not salted quickly enough, which allowed the formation of dangerous and icy conditions. However, the Defendant argued that it salted the area in a “reasonably timely” manner given the storm and that regardless, the delay in salting was not the cause of the Plaintiff’s fall.[11]
The trial judge ultimately agreed with the Plaintiff and concluded that the Defendant, Exact Post, failed in both its common law duty and its duty under the Occupiers’ Liability Act. He held that the delay in applying the road salt was unreasonable in the circumstances, and that accordingly, Exact Post fell below the standard of care expected of a commercial winter maintenance contractor.[12]
To make this determination, the trial judge relied on an expert witness who incorporated the Canadian Parking Association and the Transportation Association of Canada’s winter guidelines into his opinion.[13] The expert opined that the development of dangerous, slippery conditions could have been avoided by pre-salting the area, applying salt concurrently while plowing, or applying salt immediately after plowing. Since Exact Post did not pre-salt the area, it was required to apply the salt while plowing, or immediately after.[14]
Instead, the application of salt was delayed by about:[15]
- 5 hours since the plaintiff’s fall,
- 5 hours since Mr. Newman arrived and began plowing the snow
- 5 hours since Mr. Newman concluded plowing the snow; and
- 7 hours since the snowstorm began.
The problem with Exact Post’s maintenance system is that it required Mr. Mitchell to personally salt 14 client properties across Ottawa after his snow plow operators cleared them. The failure to allow snow plow operators to salt the properties themselves meant that “timely application of road salt became a hit and miss.” The trial judge also concluded that the dangerous, slippery condition of the area was the cause of the plaintiff’s injury.[16]
The judge held that there was no contributory negligence in terms of the type of shoes Mr. Musa was wearing, as Mr. Newman’s claim that he appeared to be wearing “street shoes” was rendered invalid by the fact that he only saw the Plaintiff fall from 30 feet away, through the window of his snow plow. The judge also held that while it was unclear whether the Plaintiff truly appreciated the slippery conditions due to the contradictory nature of some of his evidence, the conditions were very obviously slippery. In any event, the judge noted that at no point during cross-examination was it suggested to the Plaintiff that the he failed to take proper precautions.[17]
Court of Appeal
Exact Post appealed the trial judge’s decision to the Ontario Court of Appeal based on three grounds:[18]
- The trial judge misapplied the reasonableness standard of care by holding it to a standard of perfection through the suggestion that it should have arrived at the property at 6:00 a.m. Exact Post noted that its contract stated that it works “between 6:00 a.m. and 11:00 p.m.” and that it would be impossible to simultaneously attend all their client’s properties at 6:00 a.m.
- The trial judge misapprehended the evidence regarding the standard of care by considering the guidelines presented by the Plaintiff’s expert witness, since guidelines do not establish a legally enforceable standard of care. Accordingly, Mr. Mitchell was correct in waiting for Mr. Newman to plow the entire property before applying salt, a standard that was also stipulated in the winter maintenance contract.
- The trial judge failed to consider the spectrum of characteristics from Waldick v. Malcolm,[19] which set out several factors to consider to when assessing reasonable care, including weather, time of year, size and nature of the property, cost of preventive measures, footwear worn by the plaintiff, and length of the allegedly hazardous pathway.
The Court of Appeal disagreed with the Defendant/Appellant Exact Post on all points:
- The trial judge did not hold Exact Post to a standard of perfection by requiring it to have attended the property at 6:00 a.m. In fact, he did not say this at all. The trial judge only made general reference to 6:00 a.m. as a time when Exact Post could have reasonably arrived, in light of the weather forecasts indicating that the snowstorm would start at 4:00 a.m.[20]
- The Court of Appeal further stated that the trial judge did not misapprehend any evidence. Although it is true that Fordham v. Dutton-Dunwich (Municipality),[21] holds that guidelines do not necessarily establish a legally enforceable standard of care, that case turned on its facts and the trial judge in the present case was nevertheless entitled to consider and accept the winter guidelines as used in the opinion of the Plaintiff’s expert.[22] Moreover, the fact that the maintenance contract stipulated that the roadway would not be salted until the entire condo area had been plowed is completely irrelevant to Exact Post’s duty of care. The Court of Appeal cited the legendary House of Lords decision and the progenitor of negligence law itself, Donoghue v. Stevenson, for the principle that “the duty to take reasonable care exists independently of any contractual obligation”[23] [24]
- The Court of Appeal noted that although the trial judge did not explicitly cite the Supreme Court of Canada decision of Waldick v. Malcolm,[25] the trial judge nevertheless properly considered the Waldick factors in his analysis.[26]
Conclusion and Takeaway
For the above reasons, the Ontario Court of Appeal dismissed Exact Post’s appeal, ruling in favour of the Plaintiff, Mr. Musa.
Musa v. Carleton Condominium Corporation No. 255 is a unique case in that it offers both practical direction and veiled ontological commentary on our place as lawyers.
From it, we take the all-important ruling that if areas are not pre-salted prior to plowing, then they must be salted concurrently during the plowing process itself, or immediately after. Even the application of salt 2.5 hours after plowing is too much delay, and will be found to be below the standard of care for professional winter maintenance contractors.
This ruling is buttressed by reminders that although guidelines do not necessarily establish the standard of care, they can still be considered in establishing it, and that the Waldick factors remain relevant.
Above all, we are reminded that we stand on the shoulders[27] of Donoghue v. Stevenson, which stands for the originating principals of negligence itself, such as the enduring maxim that a party’s duty of care under negligence law exists independently of any contractual obligation.
The Court of Appeal Decision in Musa v. Carleton Condominium Corporation No. 255 thus provides insight not only into the future of litigation involving winter contractors, but also stands as a sobering reminder of where we come from, and that these cases, ancient though they may be, still serve as the foundation of the negligence law that we practice today. Indeed, should we forget such fundamental truths, now shall truly be the winter of our discontent. [28]
[1] Shakespeare’s King Richard III; Act 1, Scene 1
[2] Musa v. Carleton Condominium Corporation No. 255, 2023 ONCA 605
[3] Ibid at paras 12-16.
[4] Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030 at para 7.
[5] Ibid at para 11.
[6] Ibid at para 9.
[7] Occupiers’ Liability Act, R.S.O. 1990, c. O.2
[8] Musa ONCA, supra note 2 at para 17.
[9] Ibid at paras 9-10.
[10] Ibid at pars 12-16.
[11] Ibid at para 20.
[12] Ibid at para 21.
[13] Ibid at para 38.
[14] Ibid at para 35.
[15] Ibid at para 30.
[16] Ibid at para 23, 36.
[17] Musa ONSC, supra note 4 at paras 10-12.
[18] Musa ONCA, supra note 2 at para 24.
[19] Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456
[20] Musa ONCA, supra note 2 at paras 28-29.
[21] Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, at para 53.
[22] Musa ONCA, supra note 2 at para 38.
[23] Ibid at para 41.
[24] Donoghue v. Stevenson, 1932 CanLII 536 (FOREP) at page 610.
[25] Waldick, supra note 19.
[26] Musa ONCA, supra note 2 at paras 44-45.
[27] Origin unknown. Attributed to Bernard of Chartres by John of Salisbury, 12th century. Also attributed to Priscianus Caesariensis (AD 500) by Umberto Eco in Robert K. Merton’s On the Shoulders of Giants. A Shandean Postscript. The Post-Italianate Edition (1993), but most widely known from Isaac Newton’s 1675 letter to Robert Hooke: “if I have seen further [than others], it is by standing on the shoulders of giants.”
[28] Shakespeare supra note 1.
