You win some, you lose some: Expert reports and winter maintenance obligations
Musa v Carleton Condominium Corporation No. 255, 2022 ONSC 1030
Earlier this year, the Court found in favour of a plaintiff advancing a personal injury claim against the winter maintenance contractor responsible for snow removal at the building where he lived. In December 2016, the plaintiff was walking to his parked car, on his way to work, when he slipped and fell on a slippery area of a roadway outside his building, breaking his ankle. The sole issue at trial was whether the contractor had met its obligations under the Occupiers’ Liability Act.
Under the Occupiers’ Liability Act, an occupier of a property (and this often includes any party responsible for the maintenance at the property) must take reasonable steps to ensure that people entering onto the property are reasonably safe. An occupier may discharge this duty by having in place a reasonable or appropriate system of maintenance and adhering to that system.
In Musa, the winter maintenance contractor was onsite when the plaintiff fell. The snow plough operator was in the process of clearing a laneway in front of some of the units and actually witnessed the plaintiff’s fall. He was on the property for a total of 2.5 hours that morning, from 7:30 a.m. to 10:00 a.m., but did not apply any salt or grit to the area he was ploughing because, he explained, that was not part of his job duties, and his vehicle was not equipped with a salt spreader. Instead, the contractor’s owner would typically attend later, when able, to apply salt to the ploughed area from the back of his truck.
At trial, the plaintiff relied on expert evidence from Dewan Karim, P.Eng., a civil engineer whose professional work included a particular focus on winter maintenance and pedestrian safety. Importantly, in his expert report, Mr. Karim gave the opinion that not applying salt/grit immediately after the initial snow removal exacerbated the slippery conditions at the property. According to Mr. Karim, the contractor should have either pre-salted (applying salt before the storm, to make it more difficult for ice to bond with the pavement) or salted concurrently or immediately after snow removal. The Court accepted Mr. Karim’s conclusion that the plough operator likely compacted the remaining snow on the laneway, which very quickly froze and was therefore very slippery to pedestrians such as the plaintiff. The Court concluded that the delay in applying salt to the laneway was due to an inherent problem in the contractor’s system, which fell short of the contractor’s duty under the Occupiers’ Liability Act.
The decision in this case is being appealed.
Fernandez v Toronto (City of), 2021 ONSC 5106
This is not to say that a good expert report will make a plaintiff’s case a slam-dunk. Only six months earlier, the Court dismissed a plaintiff’s claim in Fernandez v Toronto. In that case, the plaintiff had slipped on a temporary walking running alongside a construction site. She sued the City of Toronto, the Toronto Transit Commission, and the winter maintenance contractor responsible for the area. The defendants brought a motion for summary judgment.
On the morning of the plaintiff’s fall in December 2014, by around 6:00 a.m., around 12 cm of snow had accumulated on the walkway. The contractor arrived onsite at around that time, and labourers began clearing snow and ice at around 7:00 a.m., arriving at the walkway at around 9:30 or 9:45 a.m. The plaintiff gave evidence that she arrived at the walkway between 9:45 a.m. and 10:00 a.m., and that she watched snow being removed with a small tractor, after which the remaining snow was removed by labourers with shovels. She then proceeded along the walkway until around midpoint, where she slipped and fell on what she believed to be a snow-covered patch of ice.
As in Musa, the plaintiff in Fernandez relied on an expert report by Mr. Karim. In his report, Mr. Karim gave the opinion that there was no clear understanding of who was responsible for maintaining the walkway, that the contractor had started too late in the morning to address the heavy snowfall, and that it was not known what ice prevention treatment, if any, was performed on the walkway at any time leading up to the plaintiff’s fall.
In this case, however, the Court did not find Mr. Karim’s report compelling. Although it found that he was qualified to give the expert evidence that he gave, and that much of his evidence was of assistance to the Court, it was also found to be counterfactual and without the benefit of additional evidence presented as part of the summary judgment motion. For example, when Mr. Karim prepared his opinion, he understood that there had been no snow removal before the plaintiff arrived at the walkway and that the area was completely covered in snow when she fell. However, as outlined above, the Court’s findings of fact were to the contrary.
In dismissing the plaintiff’s claim, the Court found that the defendants’ conduct was reasonable in the circumstances. Their snow removal work had been underway for 2-3 hours by the time the plaintiff arrived at the walkway, and the Court did not find any basis on which to conclude that the defendants had been careless in carrying out their duties.
Both decisions, coming to opposite conclusions on liability, include important reminders. Musa should remind plaintiffs that speculation and theories can take a plaintiff only so far, and it is often expert evidence that sways a judge or jury or perhaps convinces a defendant (or its insurer) to settle in advance of trial. On the flip side of the coin, Fernandez is a reminder for both plaintiffs and defendants that an expert report is only as good as its applicability to the facts of any case, and judges are not required to accept an expert’s conclusions at face value, even where they are uncontradicted in the absence of a responding expert report, particularly where further evidence contradicts the assumptions underpinning that report.
More than anything, both decisions should encourage winter maintenance contractors to keep thorough, precise logs, preferably in digital form, to track times of attendance, tasks performed, and observations made at the property. Winter maintenance contractors should also be wary of relying too heavily on experience-based training, as judges may be more convinced by more rigorous scientific evidence, as was the case in Musa. Those who insure winter maintenance contractors should similarly encourage such thorough record-keeping and informed policy-making by their insureds.