2019 QCCQ 4976, 2019 QCCQ 4976

Simkowitz c.

Ville de Montréal 2019 QCCQ 4976 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702682-172 DATE: August 9, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Shirley Simkowitz Plaintiff v. ville de montréal Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In January 2017, Plaintiff Shirley (Edelstein) Simkowitz fell on an icy sidewalk in Outremont, a borough of Defendant Ville de Montréal (the “ City ”), and broke her wrist. [ 2 ] She blames the City for her fall, alleging negligence in that the sidewalk was not maintained in a safe condition.

She claims $15,000 in damages for: (

a) discomfort and pain felt after the fall ($5,000); (

b) loss of income ($1,500); (

c) meal preparation expenses ($500); (

d) loss of enjoyment of life ($3,000); and (

e) ongoing pain and fear ($5,000). [ 3 ] The City does not contest that Plaintiff fell or that she injured herself, but denies any liability. It claims that the sidewalk where the fall occurred was diligently cleared of snow and treated with appropriate abrasive products. In short, Plaintiff’s fall was an unfortunate accident, but not one for which the City can be held liable.

FACTUAL CONTEXT [ 4 ] The facts most relevant to the questions in issue can be summarized as follows. [ 5 ] On January 5, 2017 around 10:55 a.m., Plaintiff was walking north on the sidewalk on the west side of Outremont Avenue, near the corner of Van Horne Avenue. She was on her way to work and was familiar with the area, as she walks the same route several times a week. She was wearing winter boots at the time. [ 6 ] As Plaintiff admitted herself at trial, she could see that the sidewalk was icy and slippery.

She was aware of this and looked down frequently as she walked. [ 7 ] As she was turning left at the corner of Van Horn Avenue, she slipped on a thick sheet of ice and fell. [ 8 ] She was immediately taken by ambulance to the emergency room at the Jewish General Hospital (the “ JGH ”), where they proceeded to x-rays and diagnosed a “ distal radial fracture with intra-articular extension ”, with “ disruption of the scapholunate ligament ” [1] .

Her forearm and wrist were put in a cast, which remained in place for a period of six weeks. [ 9 ] Plaintiff claims that she could not work in January, February and March 2017 and, as a result, suffered a loss of income of $1,500. [2] During this period, she was seen several times by Dr.

Ruth Chaytor of the JGH’s Fracture Clinic [3] and she also received physiotherapy treatments [4] . [ 10 ] Despite Plaintiff’s Notice of Claim filed on January 11, 2017 regarding the fall, [5] the City refused to compensate her. [ 11 ] Plaintiff filed her application in the instant case on August 18, 2017, claiming $15,000 in damages. ANALYSIS

a) Is the City responsible for Plaintiff’s fall and injury? [ 12 ] The city’s potential liability towards Plaintiff must be considered in light of the general principles of extracontractual civil liability anchored in

article 1457 of the Civil Code of Québec (“ C.C.Q. ”). [ 13 ]

Article 1457 C.C.Q. , which imposes on every person a general duty to act in way so as not to cause injury to others and possible liability if this obligation is violated, reads as follows : 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as

not to cause injury to another . Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature .

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [Emphasis added] [ 14 ] A municipality’s potential liability for accidents on sidewalks or roads caused by snow or ice is curtailed, however, by Section 585 (7) of the Cities and Towns Act , [6] which provides that: [n]otwithstanding any general law or special act, no municipality may be held liable for damage resulting from an accident, of which any person is the victim, on the sidewalks, streets, roads, walkways or bikeways, by reason of the snow or ice, unless the claimant establishes that the said accident was caused by the negligence or fault of the said municipality, the Court having to take into account the weather conditions . [Emphasis added] [ 15 ] There is abundant case law regarding a municipality’s liability for the maintenance of its streets and sidewalks. [7] It provides, notably, that :

a) Municipalities are held to an obligation of means as concerns the maintenance of sidewalks and streets, which requires that they use diligent and reasonable means to maintain sidewalks in an adequate condition, taking into consideration our climate. They are not held to an obligation of result and are not expected to maintain sidewalks in perfect condition at all times;

b) There is no presumption of fault or liability against a municipality when a pedestrian falls on a sidewalk, even when the sidewalk is icy;

c) Pedestrians must be prudent when using sidewalks, particularly when there are evident risks, such as in winter; they must accept the risk that certain areas of a sidewalk may be slippery and perhaps dangerous depending on the conditions and they must ensure their own safety;

d) Although municipalities are not held to perfection, they must eliminate traps. A trap is " in general an intrinsically dangerous situation” […] where " the danger should not be apparent but hidden ; in other words, " the concept of a trap generally includes some connotation of abnormality and surprise, in view of the circumstances " [8] ; and

e) A municipality is not the insurer of pedestrians. [ 16 ] To succeed on her action, Plaintiff must therefore prove on a balance of probabilities [9] that her fall “ was caused by the negligence or fault ” of the City, that she suffered injury and that the City’s negligence or fault was the immediate and direct cause of her injury. Given the City’s stated position, the principal question at issue is whether Plaintiff has met her burden of proving the City’s negligence or fault. [ 17 ] Plaintiff contends that she has met this burden of proof.

She argues that the presence of a thick sheet of ice on the sidewalk is, in and of itself, dangerous and that the City should have done more to make the sidewalk less slippery, notably by repeated spreading of melting and/or abrasive products. [ 18 ] The City, on the other hand, argues that Plaintiff has not proven any negligence on its part.

It contends, on the contrary, that the process in place for snow removal and spreading of melting and/or abrasive products and its execution where the fall occurred in the hours before the fall proves that it was diligent. [ 19 ] The evidence shows that snow removal and spreading of abrasive products in the Outremont borough is outsourced by contract to Environnement Routier NRJ inc. (“ NRJ ”). Mr.

Eric Bergevin, contremaître at NRJ, explained that there are two different processes for removing snow: snow plowing, which starts as soon as there is more than 2.5 cm of snow on the ground, and the removal of the snow by snow blowers and trucks, which usually occurs when the accumulation of snow on the ground reaches 15 cm. The City instructs NRJ when it is necessary to proceed by way of removing the snow. [ 20 ] When snow removal is called for, a complete team goes out to proceed to the various steps involved.

The process always involves, as a final stage, the spreading of salt and other abrasive products, which will differ depending on how cold the temperature is. If it is -10°C or warmer, a 50/50 mix of salt and gravel is used.

If it is colder than -10°C, salt is less effective and, consequently, a mix containing approximately 90% gravel is used. [ 21 ] What was the situation in the area at issue in the hours preceding the fall? [ 22 ] The evidence shows that it had been mild during the days preceding January 5, 2017 and that there had been both rain and snow on January 3 and 4, 2017, with a total snow accumulation of 12.6 cm over both days. [10] The evidence also shows that temperatures were fairly mild in the early hours of January 5, 2017, going gradually down from -5°C at midnight to -10°C at 7:30 a.m., only to start rising again from 11 a.m. onwards. [11] [ 23 ] The evidence shows, moreover, that NRJ’s team was plowing the snow in the area where the fall occurred from 1 a.m. to 8 a.m. on January 4, 2017. [12] During the course of the day on January 4, 2017, NRJ was instructed by the City to proceed with the removal of the snow.

NRJ’s team then worked from 6 p.m. on January 4, 2017 to 8 a.m. on January 5, 2017 to proceed with the removal of the

snow. [13] [ 24 ] As part of this process, Mr. Sylvain Quirion spread a 50/50 mix of salt and gravel over the sidewalks with a Benco spreader vehicle. [14] This vehicle is fitted with a GPS tracking device, which allows Mr. Quirion to pinpoint that he spread abrasives in the area at issue (the south west corner of Outremont and Van Horne Avenues) at 2:38 a.m. on January 5, 2017. [15] Mr. Bergevin also testified that as contremaître , he followed Mr.

Quirion’s vehicle and verified that the removal/spreading process was being properly completed. [ 25 ] In addition to this evidence, it is clear from the photographs taken by Plaintiff [16] that gravel was present where the fall occurred. [ 26 ] The Court cannot conclude, in light of this evidence, that the City was negligent in the maintenance of the sidewalk and that this negligence was the cause of Plaintiff’s fall. [ 27 ] Clearly, a prudent and reasonable process was in place in the area at issue and the evidence shows that the process was in fact carried out diligently by removing the snow and spreading ice melters mixed with gravel on the sidewalk at 2:38 a.m. [ 28 ] The evidence does not disclose any extraordinary circumstances requiring that additional measures be taken between 2:38 a.m. and 10:55 a.m. on the day of the fall to ensure the safety of the sidewalk where the fall occurred. [ 29 ] Moreover, there is no evidence of something akin to a trap that could give rise to liability on the part of the City, as Plaintiff admitted at trial that she could see that the sidewalk was icy and slippery. [ 30 ] The Court concludes, on the facts, that Plaintiff was the victim of an unfortunate accident, which was not caused by negligence on the part of the City. [ 31 ] In the absence such a proven fault, Plaintiff’s action must be dismissed.

It is unnecessary to consider her alleged damages. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH LEGAL COSTS of $300 representing the judicial fees on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: March 25, 2019