A recent slip-and-fall case: One for the contractors


BY ROBERT KENNALEY

Justice Cornell released his decision in Cannon v Cemcor Apartments Inc., 2016 ONSC 2828 (CanLII) on April 29 of this year. The case involved a slip and fall on a large parking lot in Sudbury, Ont., where a contractor had a verbal agreement with the landlord to ‘sand when required’ with sand treated with salt. The contractor was also required to clear the lot when 10-15 cm of snow accumulated. The plaintiff, Cannon, allegedly slipped and broke his leg. He sued the landlord, who was responsible as the Occupier of the premises in question. The landlord defended the claim on his own, and did not add the contractor as a third party. 

The Court ultimately dismissed the plaintiff’s claim. Justice Cornell decided the landlord had a reasonable policy for winter maintenance in place and the contractor had, in fact, reasonably followed that policy on the day of the heavy snowfall in question.

His Honour also referred to, and followed, a number of cases which limit the obligations of the Occupier to that of ‘reasonableness.’ His findings are worth repeating, here:
“[46]    The introduction of the Occupier’s Liability Act, R.S.O. 1990, c. O.2, significantly changed the law in this area. In McErlean v. Sarel 1987 CanLII 4313 (ON CA) it states at p. 6, para. 39, the “rigid and formalistic common law classifications of trespassers, licensees and invitees…” was replaced with the requirement that general negligence principles be applied including the test 
of reasonableness.

[47]      To paraphrase s. 3(1) of the Occupier’s Liability Act, I pose the question “Did the occupier landlord take reasonable care to see that persons using the parking lot were reasonably safe while doing so?” This is simply 
a restatement of the principle established in Waldick v. Malcolm, 1991 CanLII 71 (SCC) at para. 32 where the court indicated that the examination must involve whether the occupier has “… a reasonable system in place to ensure users will be reasonably safe from slipping and falling due to weather conditions.”

[48]      The standard expected of an occupier has been considered and clarified in a number of cases. I agree with the law as stated in the defendant’s factum:
  •  “. . . neither perfection nor unrealistic precautions against known risks” are required; see Kerr v. Loblaws Inc., 2007 ONCA 371 (CanLII) at para. 19
  •  “. . . does not extend so far as to require the defendants to remove every possibility of danger. The test is one of reasonableness and not perfection.” see Garofalo v. Canada Safeway Ltd., 1998 CarswellOnt 339 (Ont. Gen. Div.) at para. 28 
  • “The positive or affirmative duty that is imposed upon the defendant does not extend to the removal of every possible danger. It does not require the defendant to maintain a constant surveillance or lookout for potential danger.” see Garofalo, at para. 31
  •  “Occupiers are not insurers.” see Salman v. Desai, [2015] ONSC 878 at para. 39
  • A winter maintenance system and its implementation does not need to be “foolproof”. see Gardiner v. Thunder Bay Regional Hospital, 1999 CarswellOnt802 (Ont. Gen. Div.) at paras. 34, at p. 8; upheld on appeal at 2000 Carswell Ont124 (Ont. C.A.) 
[49]     I conclude that given the realities and conditions that are experienced in Northern Ontario in the winter, the landlord did have in place a reasonable policy to provide proper winter maintenance for the parking lot.”

It would certainly concern us that a winter maintenance contractor was performing work on the basis of a verbal contract, for reasons which we have set out in numerous articles previously. It would also concern us that the contractor in this case might not have kept the best of records, to track the work it performed. 

Nonetheless, the decision is a good one as it reiterates the principle that, at least in Ontario, neither the occupier nor the contractor he hires is responsible to guarantee against slips-and-falls. Rather, what is required is that a reasonable system be in place to guard against such falls — and that the system be followed. The approach recognizes that slips and falls can, and will, occur and that no one will be at fault, if a reasonable policy was put in place to reasonably guard against them. (We understand that this law is generally the same across Canada, although it would have to be reviewed in each jurisdiction, in relation to each circumstance, in that regard).

Although the Court found in favour of the landlord in this case, it is worth remembering a few points: 
  • The occupier will generally be expected to have a reasonable system in place to guard against slips and falls;
  • the occupier will generally be expected to follow that system, 
  • in order to avoid liability;
  • it is, accordingly, very important that both the system itself and the details of how and when it was followed be documented, 
  • in sufficient detail to prove these points;
  • this generally means a detailed contract that clearly sets out the scope of work, along with detailed site and weather records will show the contract was followed; and
  • contractors can be hired to perform less than what someone might say (or decide) was reasonable. In this case the person hiring the contactor should be responsible for the short-fall in service, so long as the contractor did what he or she was hired to do.
This later fact, of course, makes the need for clear, detailed contracts and good site records all the more important. 

Rob Kennaley practices construction law in Toronto. He speaks and writes regularly on construction law issues and can be reached for comment at 416-368-2522 or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.
Published in the August 2016 issue of Landscape Trades