Chouhan v. Canada Safeway Limited, 2012 ABQB 7

Court of Queen ’ s Bench of Alberta Citation: Chouhan v. Canada Safeway Limited, 2012 ABQB 7 Date: 20120109 Docket: 0701 03061 Registry: Calgary Between: Balwant Chouhan and Bhajan Singh Chouhan and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Canada Safeway Limited; McNeice Landscaping & Maintenance Ltd. And John Doe Defendants Corrected judgment: A corrigendum was issued on January 10, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.

Strekaf _______________________________________________________ I. Introduction [ 1 ] On the morning of March 22, 2005 Balwant Chouhan slipped on ice on the sidewalk at the Whitehorn Safeway store in Calgary causing her to fall and injure her ankle. Mrs Chouhan and her husband have sued Canada Safeway Limited (Canada Safeway) in negligence and under the Occupiers’ Liability Act , RSA 2000, c. 0- 4. They have also sued McNeice Landscaping & Maintenance Ltd., (McNeice) who Canada Safeway had contracted to provide snow maintenance services at the site, in negligence.

Canada Safeway and McNeice have issued Notices to Co-defendant to each other.

[ 2 ] The trial before me was limited to the issues of liability pursuant to an order of this Court granted on February 24, 2010. [ 3 ] The Plaintiffs both testified at trial and read in excerpts from the examination for discovery of Mr. McNeice of McNeice and of Mr. Grovue of Canada Safeway. By agreement of counsel, excerpts from the examination for discovery of Mr. Kurtz, a former employee of McNeice, were to be treated as if that evidence was given by Mr.

Kurtz at trial. [ 4 ] Safeway called two witnesses, Michael Grovue, who was the Manager of the Whitehorn Safeway at the time, and Al Caithness, who was Safeway's premises manager at the time. McNeice called three witnesses, John Allen and Shane Paramchuk, who were on the crew at the Whitehorn Safeway on the morning in question, and Vern McNeice, the owner and president of McNeice. II. Findings of Fact [ 5 ] Mr. and Mrs. Chouhan have resided on Whitehorn Drive NE in Calgary since 1984, shortly after they moved to Canada. In March 2005, Mrs. Chouhan was 65 years of age.

She was responsible for the grocery shopping for the family and often shopped several times per week. She did most of her grocery shopping at the Whitehorn Safeway, which was a four to five minute drive from their home. Mrs. Chouhan did not drive and was usually driven to the store by her husband. [ 6 ] Canada Safeway is the owner and operator of the Whitehorn Safeway grocery store which is located on the north west corner of 36 St. and 32 Ave. NE in Calgary.

It is one of 14 store locations owned and operated by Canada Safeway in Calgary. [ 7 ] McNeice operates a landscaping business during the summer and a snow removal business in winter, concentrating on snow removal for large retail sites. In 2005, McNeice provided winter snow removal services for 11 - 12 Canada Safeway locations, including at the Whitehorn Safeway store.

McNeice had been providing snow removal services to Canada Safeway since 1996. [ 8 ] The contract that was in place in March 2005 between McNeice and Canada Safeway, as outlined in a quotation letter dated September 2, 2004, provided in part: All storefronts, walks and city sidewalks would be cleared once a day prior to 08:00a.m. when a skiff or more of snow is present. My crews will clear all snow from these areas and apply environmentally friendly ice melt to all areas that are iced.

Should a snowfall initiate accumulations during the late hours of the morning, my crews will be dispatched immediately to clear the above said areas as soon as possible. Should a site receive further accumulations of snow after our visit and an additional clearing is required, please notify me immediately and I will have the resources required sent to your site immediately.

Should we not receive notification of such a need we will initiate a clearing the next night. [ 9 ] Both Canada Safeway's premises manager and the Whitehorn Safeway Store Manager were satisfied with the winter maintenance work provided by McNeice and did not recall receiving any complaints from customers. [ 10 ] In addition to having snow removed by McNeice daily pursuant to the contract, Canada Safeway expected its store managers to check the snow conditions on the site periodically during the day and to contact McNeice directly if there was a weather event that needed attention. This was Mr.

Grovue's practice. [ 11 ] On March 22, 2005, the McNeice crew that attended at the Whitehorn Safeway was comprised of John, Shane, Greg, Alix and Kelly. They began work at 12:30 a.m. Commencing at 1:30 a.m. the crew attended at various other Safeway stores before arriving at the Whitehorn Safeway at 7:45 a.m. It was a cold (approximately -7 degrees) foggy morning and it had snowed lightly the previous evening. John used a snow blower to blow the snow from the sidewalk. Greg followed behind John with the salter and then returned to the truck

where he recorded that they finished at 7:53 a.m. This was before Greg finished salting and shortly before Mrs Chouhan fell. [12] On March 22, 2005, Mr. Chouhan drove his wife to the Whitehorn Safeway after their usual morning routine. The Chouhan’sarrived shortly before 8:00 a.m., prior to the store opening. Mr. Chouhan dropped his wife close to the east entrance, about three yardsbehind the door, and went to drop of some recycling in the parking lot. Mrs. Chouhan was wearing running shoes that had grips andlaces.

After exiting the car, she walked two to three steps towards the door when she slipped on some black ice on the sidewalk and fellon her back. Mrs. Chouhan fell on a patch of ice that had been cleared by the McNeice crew. It was the only remaining patch to be saltedand was likely within 10 - 20 seconds of being salted, but for her fall. Prior to falling Mrs. Chouhan had observed one other lady goingtowards the store but did not notice any people working around the door or in front of the store and did not hear any sounds of a snowblower or salt spreader in the area.

After she fell, she was given assistance by some of the McNeice and Safeway employees until theambulance arrived and took her to the hospital. [13] Mrs. Chouhan fell shortly before 8:00 am, prior to the opening of the store. Mr. Grovue, the manager at the WhitehornSafeway was aware that several individuals, and in particular Mrs. Chouhan, often arrived early and that there were usually peoplewaiting to enter the store when it opened at 8:00 a.m. Canada Safeway's Premises Manager was also aware that customers were oftenwaiting at stores before opening time.

Following the incident, Canada Safeway reviewed the circumstances to determine if any changesshould be made to their winter maintenance policies and procedures and concluded that no changes would be made as they were of theview that a process was in place to ensure that the walks were ready for business at 8:00 a.m. III. The Law [14] The Chouhan’s have sued McNeice in negligence and Canada Safeway in negligence and pursuant to the provisions of theOccupiers’ Liability Act.

The Occupiers’ Liability Act imposes a statutory duty on all occupiers of premises to take reasonable care toensure that visitors will be reasonably safe when using the premises for the intended purpose.

Section 5 of the Act states: An occupier of premises owes a duty to every visitor on the occupier's premises to take such care as in all the circumstances of the caseis reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited orpermitted by the occupier to be there or is permitted by law to be there. [15] It is common ground that Canada Safeway was an "occupier" of the Whitehorn Safeway premises where the incident occurredand that the Chouhan’s were "visitors" for the purposes of the Act. [16] The occupier’s duty in

section 5 is defined as a "common duty of care" (s. 1(a)). The common duty of care applies in relationto the condition of the premises, activities on the premises, and the conduct of third parties on the premises (s. 6). Occupiers are notunder an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor (s. 7). [17] The effect of the Occupiers’ Liability Act was described by the Alberta Court of Appeal in Wood v.

Ward, 2009 ABCA 325,464 A.R. 383 at paras. 6 -7 in the following fashion: The effect of the Act is to modify the duty of care owed by the occupier to a visitor at common law. At common law the occupier onlyhad a duty to protect the visitor from unusual dangers of which he was aware or ought to have been aware, and he could discharge hisduty by warning of the unusual danger. As the Court stated in Preston v.

Canadian Legion Kingsway Branch (1981), 1981 ABCA 105, 123 D.L.R. (3d) 645, 29 A.R. 532 (C.A.) at p. 536: This change is most marked because it does away with the old common law position that an occupier was only liable for unusual dangersof which he was aware or ought to have been aware. Under the old law the occupier could escape liability by giving notice. Now, theoccupier has to make the premises reasonably safe. That does not absolve the visitor of his duty to take reasonable care but does place anaffirmative duty on each and every occupier to make the premises reasonably safe.

If a risk of injury to a visitor is reasonably foreseeable, the occupier will owe a duty of care to prevent visitors from being injured. Unders. 5 the occupier must take reasonable care, which is the ordinary common law standard in tort, meaning that the occupier must keep the

premises reasonably safe. It does not follow that the occupier is automatically liable for any injury suffered as a result of a foreseeable risk. Foreseeability of therisk creates a duty to the visitor, but it is still necessary to show negligence on the part of the occupier to impose liability. The Act doesnot intend to create no fault liability. Further, the fact that the risk is foreseeable by the occupier, or that the occupier is negligent infailing to protect the visitor from the risk, does not mean that the visitor has no duty to have regard for his own safety.

A duty ornegligence by the occupier does not foreclose contributory negligence on the part of the visitor: Preston at p. 536; Lorenz v. Ed-MonDevelopments Ltd. (1991), 1991 ABCA 82 , 118 A.R. 201, 79 Alta. L.R. (2d) 193 (C.A.) at p. 194. It follows that the duty ofthe occupier is not only to protect the reasonably diligent visitor, but also to be aware that some visitors might themselves be careless,that is, contributorily negligent. The occupier's duty ends only when either the risk on the premises or the conduct of the visitor becomesreasonably unforeseeable. [18]

Section 11 of the Act relieves an occupier from liability in certain circumstances where the damage is due to the negligence ofan independent operator, such as McNeice, engaged by an occupier. It states in part: 11(1) An occupier is not liable under this Act when the damage is due to the negligence of an independent contractor engaged by theoccupier if (

a) the occupier exercised reasonable care in the selection and supervision of the independent contractor, and (

b) it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have beenundertaken. [19] The test to be applied is one of reasonableness, not one of perfection. A number of Alberta cases have considered what isreasonable in the snow removal context. In Millar v. Westfair Foods Ltd., 2001 ABQB 448, 289 A.R. 338 Kent J. concluded thatWestfair was not responsible when Mr. Millar fell and broke his ankle when walking across the Superstore parking lot on a traffic islandthat was icy.

She stated at paragraphs 13 - 17: Two cases have assisted me in how to approach an analysis of the question of liability. In Wetherley v. Calgary Cooperative AssociationLtd. (1990), (AB KB), 72 Alta. L.R. (2d) 248 (Alta Q.B.), Mr. Justice Virtue said the following at p. 250: The Act does not make the occupier an insurer. It does, however, shift to the occupier the evidential burden of showing that it exercisedthat degree of reasonable care, called for by the foreseeable risk, sufficient to keep the visitor reasonably safe. The second, Williamson v. Best Plumbing Heating and Supplies Ltd. [2000] A.J.

No. 495 (Alta Q.B.) itemizes the process as follows: 1. The Plaintiff must prove that the traffic island was in an unsafe condition. 2. The Plaintiff must prove that the Defendant should have reasonably foreseen that Mr. Millar would walk on the traffic island in thecondition that it was in. 3. The Plaintiff must prove that he was using reasonable care for her own safety [para 28]. The first question is whether or not the traffic island that day was an unsafe place. Mr. Millar says that there was ice on it. Indeed, thatcaused him to slow down once he got onto the island and after he took the first step.

It was an unsafe place.

The second issue is whether or not it was reasonably foreseeable that Mr. Millar would walk on the traffic island that day when it was in that condition. The evidence from Superstore is that the traffic island was not designed to be walked upon. That of course is not the issue. The issue is whether or not it was reasonably foreseeable that someone would walk on the traffic island and then specifically addressing this case, whether someone would walk on it when it was icy. Mr. Millar's evidence is that he felt that the island was safer than walking on the busy roadway.

One of the exhibits at trial was a photograph taken just after Mr. Millar's ambulance left. A close-up of the traffic island shows that there was snow on the island but very little, if any, on the roadway. The island was a much less hospitable surface than the roadway from a pedestrian's perspective. Mr. Millar noticed that it was icy. In my view, given the choice between the traffic island and the roadway, even if it was busy, it was not reasonably foreseeable that a customer would choose the traffic island. Moreover, once Mr. Millar stepped up on the island, he noticed it was icy.

Even if it was reasonably foreseeable for a customer to step up on the island, it was not reasonably foreseeable that that same customer would continue down the island in such an icy condition. There is no liability on Superstore for Mr. Millar's fall. [ 20 ] In Moens v. Homberg L.P. Management Inc ., 2009 ABQB 35 , the plaintiff slipped and injured herself while descending steps in front of her workplace on October 29, 2003. Snow had fallen the previous afternoon and evening and the steps were snowy and slippery.

The plaintiff was aware the steps were slippery as she had used the steps when she arrived at work and on two prior cigarette breaks. The owner of the premises had contracted with Train's Lawn Care Services Ltd., an experienced snow removal contractor, for the past eight years. The contract required attendance within 24 hours of snow, clearance of snow once every 24 hours during continuous snowfall, removal of snow from entrances and sidewalks and the application of sanding chips and ice melt where safety was deemed to be a risk, which was an extra cost.

Gill J. concluded that Homberg was not liable, stating at paragraphs 55 - 61: In

summary an occupier does not insure that the ground condition around a building will be absolutely free of snow and ice and therefore risk free. Where there is snow and ice present there is always some risk of a fall. It is a question of fact in any particular case as to whether an occupier has been negligent. I am satisfied for the following reasons that Homberg took such care as in all of the circumstances of this case was reasonable and as a result is not negligent: 1. Homberg had contracted snow and ice removal and de-icer services from an experienced contractor, Trains. 2.

The contract with Trains included terms that were reasonable in terms of imposing standards for snow removal. The contractor agreed to be at the building within 24 hours of snow falling and to remove snow and apply ice repellent. 3. Homberg had a building manager whose job included inspecting the state of the premises and to supervise the contractor. 4. On the day of the fall, the building manager went to the premises around 8:30 a.m. and stayed until Trains arrived at 10:00 a.m. He then inspected the building again on October 30. 5.

Trains attended at the building on the morning of October 29 and expended 2 man hours to clear the priority areas (entrance ways and steps) with shovels and apply de-icer. The contractor and the building manager kept records of their activities. The Plaintiff is critical of the fact that the contractor failed to keep details of where the snow removal had taken place and the de-icer applied.

While it would have been preferable to have such records, I accept the evidence [sic] common sense explanation of the contractor and their employee that when shovel crews arrive their priority are the high traffic areas being entrance ways and steps, and in this case that is where the activity would have been directed. Trains' records show that a considerable volume of ice melt was applied at this building on October 29th. It is a reasonable inference to assume that an experienced snow contractor would focus it's application of de-icier on the entrances and steps.

Homberg had a reasonable system of snow clearance and ice removal in place and in this case their contractor and building manager carried out their respective functions. It is also noteworthy that while the Plaintiff and one other employee commented to the receptionist on the poor condition of the steps at around 8:30 a.m., no other comments were made during the day about the steps despite the fact that the Plaintiff and other employees were going in and out of the building.

The Plaintiff went out for smoke breaks at 10:30 a.m. and 1:00 p.m. (which was after Trains had been at the building) and it is reasonable to assume that the Plaintiff would have made additional comments if the condition of the steps had not improved.

The evidence also satisfies me that Homberg hired and adequately supervised a competent snow and ice removal contractor. [ 21 ] In Ross v. 490564 Alberta Ltd. , 2003 ABCA 126 , 327 A.R. 123, the majority upheld a finding by the trial judge that the occupier was 75% liable for injuries suffered by the plaintiff when she slipped and fell at a strip mall at approximately 5:50 p.m. There had been a heavy snowfall the previous day and the temperature had risen. Water was dripping onto the sidewalk over the eaves trough. Mr.

Fayant had put sand and salt on the sidewalk at 4:00 p.m. and again at 5:00 p.m. after a customer advised that it was slippery as the sand and salt applied at 4:00 p.m. had washed away by 5:00 p.m. The majority stated at paragraph 18: The store owner was aware that the danger existed. This is not a case about whether Mr. Fayant's routine maintenance was reasonable. Rather the question is whether, knowing what he knew as to the condition and the effectiveness of his earlier steps, Mr.

Fayant exercised reasonable care in all of the circumstances to see that his visitors would be reasonably safe in using the premises. The trial judge concluded that, with his knowledge of the conditions, he did not take reasonable measures. We cannot say that conclusion was not available to her on these facts. IV. Analysis [ 22 ] I will first address the claim against McNeice. I am satisfied that McNeice was not negligent in its performance of snow removal at the Whitehorn Safeway on March 22, 2005.

McNeice performed the snow removal work in a reasonable and appropriate matter in accordance with its contractual obligations with Canada Safeway. While the Chouhan’s argued that McNeice should have placed markers and had someone designated to watch and warn members of the public when they were performing their snow removal operations, I do not agree that would be necessary in order to satisfy the duty of care owed by McNeice.

McNeice had its truck and trailer prominently displayed in front of the store with workers wearing reflective vests using loud equipment to perform snow removal functions that are commonly done throughout the winter in Calgary. That represents sufficient notice to members of the public that snow removal work is underway. [ 23 ] The next issue to be determined is whether Canada Safeway is liable. Canada Safeway argued that it is relieved from liability to the Chouhans if McNeice was found not to have been negligent. It points to the following excerpt from Markute v.

Condo Plan 8210334 , 2006 ABCA 315 , at paragraph 17 : Once the trial judge determined that Abbott & Abbott had discharged its duty to Ms. Murkute and was therefore not negligent, he had no need to resort to s. 11(1) of the Occupiers' Liability Act in order to find Condo Corp. not liable. Section 11(1) only applies in the event that the trial judge had found Abbott & Abbott negligent. As he did not, the Condo Corp. did not require the protection of s. 11(1). In finding that Abbott & Abbott discharged its duty of care to Ms.

Murkute, he therefore implicitly found that Condo Corp. had likewise discharged its duty of care to Ms. Murkute by retaining Abbott & Abbott's services. [ 24 ] As was recognized by the Alberta Court of Appeal, section 11(1) only applies when an occupant’s contractor has been found negligent.

It provides relief to an occupier when its contractor was negligent, provided that the occupier met the criteria in section 11(1), that is, that the occupier exercised reasonable care in the selection and supervision of the independent contractor and that it was reasonable in the circumstances that the work that the independent contractor was engaged to do should have been undertaken.

Section 11 does not relieve an occupier from liability because its contractor was not negligent. Whether hiring the contractor was sufficient to discharge the occupiers’ duty of care is a separate issue to be determined. [ 25 ] I do not find that Canada Safeway necessarily discharged its duty of care to the Chouhans simply because McNeice was found

[ 25 ] I do not find that Canada Safeway necessarily discharged its duty of care to the Chouhans simply because McNeice was found not negligent. While that may have been implicit in the circumstances in Markute , the issue in this case is whether the snow removal arrangements imposed on McNeice by Canada Safeway were appropriate. It was Canada Safeway that directed that the walks were to be cleared by 8:00 a.m., despite the fact that its representatives were well aware that some customers were regularly waiting at the store for the doors to open before 8:00 a.m.

Canada Safeway should have been aware that those customers would risk injury if snow clearing was still in progress or had not been completed when those customers arrived prior to the store opening in the morning following a snowfall. This is in fact what happened when Mrs. Chouhan fell while the snow removal was in the process of being completed. It is surprising in this context that Canada Safeway indicated that it concluded in its review of its snow removal program following Mrs. Chouhan’s fall that no changes to its snow removal program would be made.

A simple modification to the requirements it imposed on McNeice to ensure that snow removal was completed by 7:45 a.m., when customers were known to be waiting for the store to open, rather than 8:00 a.m., would reduce the likelihood of a similiar incident occuring prior to store opening on another occasion. I would not have considered any modification by Canada Safeway to improve its snow removal program in this fashion as a result of what happened to Mrs.

Chouhan as an admission of liability and would have viewed it as a prudent step to improve its snow removal program to benefit its customers. [ 26 ] The test to be applied under the Occupiers' Liability Act when evaluating a snow removal program and the obligations of an occupier to address snow, ice and other winter conditions is reasonableness, not perfection. I am satisfied that Canada Safeway exercised reasonable care and met its obligations in the circumstances of this case where: 1. Canada Safeway hired an experienced and competent snow removal contractor in McNeice. 2.

The snow removal contract contained reasonable terms that required walks and storefronts to be cleared once a day prior to 8:00 a.m., whenever there was a skiff or more of snow present and to place ice melt on icy areas. Additional snow clearing could be requested by Canada Safeway if required. 3. Canada Safeway staff monitored the performance by McNeice of its contractual obligations to ensure it was satisfactory. 4. Canada Safeway staff were responsible for inspecting snow conditions on the site periodically throughout the day and for requesting additional snow clearing during the day if needed. 5.

While requiring snow removal to be completed by 7:45 a.m., rather than by 8:00 a.m., may have improved Canada Safeway's snow removal program, it was not a necessary requirement for a finding that its snow removal program was reasonable. [ 27 ] I am also satisfied that Canada Safeway was not negligent and that its snow removal arrangements did not constitute a breach of any duty of care it owed to Mrs. Chouhan. [ 28 ] The Plaintiffs action is dismissed. If the parties are unable to agree on how costs should be addressed, they are at liberty to contact me to arrange to address same.

Heard on the September 26, 27, 28 and 29, 2011. Dated at the City of Calgary, Alberta this 10th day of January, 2012.

J. Strekaf J.C.Q.B.A. Appearances: Joseph P. Sheplawy for the Plaintiffs Marney Lutz of Scott Venturo LLP for the Defendant McNeice Landscaping & Maintenance Ltd. Heather A. Sanderson of MacPherson Leslie & Tyerman LLP for the Defendant Canada Safeway Limited _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice J. Strekaf _______________________________________________________ Page 10: Please note that the “Heard on date” should read September 26, 27, 28 and 29, 2011 Page 10: Please note that the “Dated at the City of Calgary, Alberta” should read 2012