2018 QCCQ 3189, 2018 QCCQ 3189

Kitchen c. Édifice 100 2018 QCCQ 3189 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154723-169 DATE: May 15, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ AUDREY KITCHEN Plaintiff v. éDIFICE 100, s.e.n.c.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant $1,256.88 in damages following a fall that occurred on a pathway located on Defendant’s property. She slipped on ice hidden by a thin layer of water, which she claims was leaking from Defendant’s defective irrigation system. [ 2 ] She submits that Defendant was negligent in the maintenance of the property and must be held responsible for the injury she suffered.

The damages claimed are for loss of salary during the period of her disability, as well as costs. [ 3 ] Defendant denies liability. It submits that it was diligent in the maintenance of the property, and that it cannot be held responsible for Plaintiff’s fall. question in issue [ 4 ] Given the position taken by the parties, the case calls for the resolution of the following questions:

a) Was Plaintiff’s fall caused by Defendant’s negligence in the maintenance of the property?

b) If so, is Plaintiff entitled to the damages claimed? FACTUAL CONTEXT [ 5 ] On Sunday, October 18, 2015, Plaintiff was on her way to the gym located in the building bearing civic address 100 Dresden in Town Mount Royal, owned by Defendant. [ 6 ] It was a cold, but clear day. There had been light rain and a few snow flurries the previous day, but no precipitations had taken place earlier in the day. [ 7 ] Shortly before 10:00 a.m., Plaintiff parked her car in the parking lot located on the East side of the building.

She got out of her car intending to use the sidewalk to reach the entrance to the gym located in the front of the building. Noting that a significant amount of water was seeping from the lawn in front of the property onto the sidewalk and the street, she decided to avoid the sidewalk, afraid that she would be splashed by passing cars.

Instead, she decided to take the paved pathway running parallel close to the building and turn right on the perpendicular path towards the curb, with the intention of taking the next path leading to the entrance to the gym. [1] [ 8 ] As she was walking down the path towards the sidewalk, Plaintiff slipped on an icy patch hidden by water and fell. [ 9 ] She was immediately assisted by her husband and an employee of the La Sirène restaurant located in the building who came out to help. With their help, she was able to get back up and make her way to the gym. [ 10 ] After 30 to 45 minutes, she felt steadier.

She left the gym, alerted the owner of La Sirène restaurant of the situation and drove back home. On Monday, October 19, 2015, she consulted an osteopath and was given exercises to perform and a recommendation for medication that she could take for the pain. [ 11 ] On Tuesday, October 20, 2015, Plaintiff went back to work as an early child educator at CPE Mount Royal, feeling that she was well enough to do so. She found it difficult to move around, however, and was told by her employer to consult her doctor. [ 12 ] On Wednesday, October 21, 2015, she consulted her family physician, Dr.

Lynn McLaughlin, who concluded that her condition required that she be off work for a period of 20 days. [2] [ 13 ] She was in fact off work for a period of three weeks. For the first week, she received no salary or disability allowance. For the second and third week, she received disability insurance payment that covered a portion of her salary. She then went back to work.

[ 14 ] On November 3, 2015, Plaintiff sent Defendant a letter of demand claiming a total amount of $1,106.88, representing the loss of her full salary for the first week (4 days @ $184.48/per day = $737.92) and the difference between her disability allowance and her full salary for the two remaining weeks ($46.12 X 10 days = $368.96). [ 15 ] Defendant forwarded Plaintiff’s claim to its insurer, who eventually denied coverage. [3] [ 16 ] Plaintiff formally put Defendant in default by letter of September 19, 2016 [4] and filed her claim on October 31, 2016. ANALYSIS

a) Was Plaintiff’s fall caused by Defendant’s negligence in the maintenance of the property? [ 17 ] Plaintiff’s claim is based on the principles of extra-contractual liability. In order to succeed, she must prove, on a balance of probabilities [5] , that Defendant committed a fault within the meaning of

article 1457 C.C.Q. and that she suffered injury as a direct and immediate consequence of this fault. [ 18 ] More particularly, she must demonstrate that Defendant did not take reasonable care in maintaining the property and that her fall was caused by the dangerous condition of the pathway resulting from Defendant’s negligence. [ 19 ] Plaintiff has met this onus of proof. [ 20 ] It is uncontested that Plaintiff slipped on an icy patch that was hidden by a thin layer of water. [ 21 ] Plaintiff and Ms.

Jane Demers, who are both regular visitors of the gym located in the building, testified that in the months leading up to Plaintiff’s fall, water frequently accumulated on the sidewalk in front of the property and on the perpendicular pathway where the fall occurred. They both testified that the spouts of the irrigation system located in the ground close to the sidewalk were regularly defective, in that water was seeping from them onto the sidewalk and pathway. [ 22 ] Plaintiff testified that this was precisely the situation on the day she fell. She recalls that it was a dry, partly sunny day.

The day before, there had been light rain in the morning and a few flurries in the early afternoon. [6] The water on the sidewalk and pathway where the fall occurred could not, consequently, have been caused by the weather conditions. [ 23 ] Mr.

Eddy Dikrenian, who testified on behalf of Defendant, admitted himself that the spouts of the irrigation system along the sidewalk were regularly damaged by City of Montreal cleaning or snow removal equipment. [ 24 ] On a balance of probabilities, the Court concludes that a defective water spout of the irrigation system in front of the property caused an accumulation of water and resulting ice. [ 25 ] Defendant argued that it has a maintenance contract in place with an irrigation system maintenance company and efforts were made to ensure that the property was safe. The evidence shows that this was insufficient.

Defendant knew that the spouts were subject to breakage and should have taken further steps to avoid water accumulation on the path, more particularly in cold weather conditions with a risk of freezing. As a result of its negligence, a dangerous situation was created. [ 26 ] The Court therefore concludes that Defendant must be held responsible for the injury suffered by Plaintiff.

b) Is Plaintiff entitled to the damages claimed? [ 27 ] Defendant does not contest the damages of $1,106.88 claimed by Plaintiff for loss of salary. Plaintiff is therefore entitled to this amount. She is not entitled to the additional amount of $150 claimed, however, as she was unable to explain or justify it. FOR THESE REASONS, THE COURT: GRANTS Plaintiff’s action in part; CONDEMNS Édifice 100, s.e.n.c. to pay to Audrey Kitchen an amount of $1,106.88, together with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec from September 19, 2016; THE WHOLE, WITH LEGAL COSTS in the amount of $100 representing the judicial fees paid on the application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: April 23, 2018