2021 QCCQ 11557, 2021 QCCQ 11557

Masse Kierans c. City of Montreal 2021 QCCQ 11557 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-707717-197 DATE: October 20, 2021 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Elizabeth MASSE KIERANS Plaintiff v.

CITY OF MONTREAL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Elizabeth Masse Kierans, sues the Defendant, City of Montreal, in connection with personal injuries suffered when she slipped when walking upon an icy sidewalk in front of the building situated at 2295, Saint-Marc Street, on Wednesday, January 24, 2018, at around 5:30 p.m. [ 2 ] She alleges that the injuries, consisting in a radial head fracture of her left elbow, resulted in damages including costs of physiotherapy and non-pecuniary prejudice for which she claims 15 000 $, the limit that can be claimed in the Small Claims Division. [ 3 ] She asserts that the City is responsible because it allowed a build-up of ice to occur on the sidewalk, failing to apply salt or abrasives.

She alleges that the weather in the city on the preceding days had been difficult with sustained freezing rain and ice fog. Wednesday then brought a light snow fall coupled with colder temperatures. On the Eastern side of St Marc abrasives appeared to have been dumped in piles that were several meters apart, leaving the main part of the sidewalk with no abrasives or salt to prevent slipping. I did not see the black ice until I had already fallen.

The salt that was dumped in small piles along the sidewalk implied that the rest of the sidewalk was safe and did not require abrasives, leading to a false sense of security. [ 4 ] Based on several media reports, she also asserts that the City deliberately counted on the mild spell expected to melt the snow and ice on sidewalks rather than removing the ice and that it admitted its error through the statement of a member of the executive committee. [ 5 ] The City, while not denying that the injuries alleged occurred as a result of the Plaintiff’s fall, denies any fault on its part, asserting that it carried out snow removal adequately taking into account the weather conditions.

More particularly, the City asserts that it cleared the snow and spread abrasives on the sidewalk the day before the event, i.e. on January 23, 2018 and that the weather reports indicate that no snow fell on January 24 th . [ 6 ] The City points to the applicable

article of the Cities and Towns Act [1] 585 […]

(7) Notwithstanding 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. [ 7 ] The City does not admit the quantum alleged by the Plaintiff. Issues [ 8 ] To decide this case the Court must address the following questions:

1. Was the City at fault in its snow-removal work prior to the event, taking into account the weather conditions? 2. What is the just quantification of the Plaintiff’s prejudice? Facts [ 9 ] The place where the Plaintiff slipped is just below Sherbrooke Street where Saint- Marc Street slopes down relatively steeply toward Lincoln Avenue. [ 10 ] She and her daughter, Stephanie Kierans, were on their way to a meeting with a caterer to make arrangements for the meal at her daughter’s upcoming wedding. [ 11 ] Mrs. Masse Kierans parked her car on the West side of Saint-Marc Street.

They walked up to the corner of Sherbrooke, crossed at the light to the East side, toward the Masonic Lodge building. They walked down the slope toward the entrance to the commercial premises for which the address is 2295 Saint-Marc, in single file, Mrs. Masse Kierans ahead, her daughter following. They walked on a narrow portion of the sidewalk, which was not cleared of snow, in the path cleared by the footprints of other pedestrians. There was a thin layer of snow over a frozen base. [ 12 ] Stephanie Kierans testified that she walked slowly.

The temperature was very cold, and the pedestrian walkway was very icy. There was no unfrozen slush. The sidewalks were not “overly cleared”, there was a path cleared by people walking. There was no salt, no sand. It looked as if the sidewalk had not been cleared at all. Stephanie walked on the snow, hoping to have more traction. [ 13 ] Stephany Kierans was six months pregnant and afraid of falling.

Her mother was walking a little less slowly than her her, but more slowly and carefully than usual. [ 14 ] When she saw her mother “completely wipe out” falling backward, she had lagged behind somewhat. [ 15 ] The point where she fell was just after the fenced-in daycare playground, on the sidewalk in front of the pathway leading to the public entrance of the building. [ 16 ] Catching up, she saw that her mother was a bit in shock but wished to continue with the meeting.

After the meeting with the caterer, her mother started to realise that she was seriously injured, and Stephanie drove on the ride back because her mother could not use her left arm. [ 17 ] It was dark as they were leaving the building. They heard two other persons fall in on the same spot. The second person falling dropped a box of tomatoes which rolled down the slope. In the res gestae , this person yelled out about it being very slippery. [ 18 ] In other words, this other person who fell was taken by surprise as well by the slippery surface. [ 19 ] Mrs.

Masse Kierans showed the Court the type of boot she was wearing that day, a Rockport winter boot appropriate for this type of weather. It was very different than the boots shown in the City’s adjuster’s report which did not look at all like the type of boot the Plaintiff said she was wearing. The adjuster clearly made an error which he admitted at the hearing. [ 20 ] Mrs. Masse Kierans testified about how there were large snowbanks that had turned to ice. There had been a period of mild temperature for a few days before the 24 th .

On that day the freezing rain had stopped and it was much colder, resulting in everything freezing. [ 21 ] It was problematic getting out of the car because of the compact bank of ice beside the car accumulated between the parking area of the street and the sidewalk. Getting over the mounds of ice on the West sidewalk was difficult. After crossing at the light, which they chose to do, expecting abrasives, they headed down toward the entrance to the building. The Plaintiff says there was a pile of abrasives between the sidewalk and the road.

It looked as though it had been dumped there in order to spread it at a later time. [ 22 ] Although her daughter was afraid of falling, the Plaintiff said that she had a false sense of security in seeing the pile of abrasives, believing that it had been spread. After the fall, it became clear to her that it had not been used. [ 23 ] She was also walking toward the edge of the sidewalk, because the surface was more crusted than smooth. The exact place of the accident was just before the part of the sidewalk adjacent to the private walkway leading to the door of the building.

She cannot remember the fall, but remembers after she fell realising that the ice on which she had fallen was very thick and smooth. She knows that she hit the back of her head on the ice, but did not suffer a head injury. She attributes this to the coat she was wearing that was well lined. [ 24 ] She was in a state of shock and remembers nothing about the meeting. When they left, she could not get her coat on because of the elbow injury. [ 25 ] The place where she fell, and where others fell afterward, was quite smooth, unlike the crusted area where she had tried to walk.

The private footpath leading from the sidewalk to the entrance of the building was well salted. [ 26 ] Mrs. Masse Kierans was very disappointed to read media reports published on January 25th and following (P-5) that the City was hoping that the snow would not have to be cleared because of the thaw coming up on the weekend that would melt the ice.

She also read that the City gave priority to such public accesses as school, but deplores the failure of the City to salt the area where she fell in front of the office where she was heading that shared an entrance to a daycare while there was salt dumped very close by. [ 27 ] She blames the City if it decided, for financial reasons, to halt operations because of an upcoming thaw, or, if it decided to salt the area, for the fact that such work was not carried out.

[ 28 ] The City’s representative at the hearing asked why the Plaintiff decided to continue walking there knowing that the conditions were difficult, taking the initiative to walking ahead of her daughter at a quicker pace.

The Plaintiff responded that she, like other pedestrians, was walking slowly. [ 29 ] Speaking for the City, Yannick Raymond-Parent, a « contremaitre pour la propreté de la voie public », explained that the clearing of snow using heavy equipment is supervised by the City as a central institution, while the spreading of abrasives on sidewalks is given to the specific borough, in this case Ville-Marie. This work was under his supervision and he showed records (D-4) of how abrasives were spread on January 23, 2018 on Saint-Marc between Sherbrooke and De Maisonneuve, between 19h35 and 19h40.

This work was done mechanically, using “bombardiers” under a specific contract, by “équipe 1”. These are small caterpillar machines (“chenillettes”) driven on the sidewalks to plough snow and spread abrasives. The same work was done on January 24, 2018, from 19h40 to 19h45. [ 30 ] He also spoke about how weather predictions are examined four times each 24 hour period in order to plan operations. At 22h00 on Tuesday, January 23, a report predicted that from that hour until 10h00 Wednesday, January 24, the temperature would fall from 2 degrees Celsius to minus 9 degrees Celsius.

It would continue to fall reaching minus 15 on Thursday morning.

The forecast on January 24 at 14h00 was similar, with the predicted temperature being minus 10 degrees Celsuis at 19h00. [ 31 ] The temperature actually measured was a high of 2.5 degrees and a low of minus 4.3 on January 23, and a high of 2 and a low of minus 14 on January 24. [ 32 ] Another indication is that, as a rule, the boroughs do not spread abrasives until after snow that is to be removed had been cleared, to avoid waste and to optimise the effectiveness of the process. [ 33 ] It is however a practice to decide to spread abrasives as a preventative measure when certain conditions exist such as freezing rain.

The witness states that on January 24, the “contremaitres” decided at 18h00 to recommend spreading abrasives, and the work was carried out in the sector, beginning at 19h00. [ 34 ] It is also a practice to dispatch emergency teams, using pickup trucks carrying abrasives that are spread manually by workers using shovels on areas of concern. This can occur under the authority of a contremaître whenever the circumstances warrant an immediate and localised intervention. It can occur for example when members of the public have called 311 to report a situation that constitutes a danger to public security.

A person with supervisory duties would then check out the location and decide whether to act. [ 35 ] The Court asked whether there was any such call for Saint-Marc Street and the witness did not know. The City undertook to check the record, but no answer was forthcoming in fulfilment of this undertaking. [ 36 ] Mr. Raymond-Parent stressed in his testimony that 2018 was a difficult year for freezing rain. He stated as well that priority is given to areas such as principal arteries in the road system and pedestrian locations in the vicinity of hospitals and schools.

Analysis and Decision [ 37 ] On the issue of assumption of risk or contributory fault, the Court is of the view that the Plaintiff was justified in using the City’s public sidewalk the day of the events. It was not known to the pedestrians that the sidewalk constituted a public danger, nor did the City issue any warnings telling the public to restrict its use of pedestrian surfaces. The Plaintiff knew, as did the population in general, that it had been a difficult winter and that there had been variable conditions of precipitation and freezing.

She took care in walking on an uncleared sidewalk, slowing her pace and wearing appropriate rubber-soled boots. She knew that there was a certain risk, but she did not foresee the hidden hazard on the specific place where she fell. [ 38 ] On the issue of the “negligence or fault of the City”, to use the expression adopted in the legislation quoted above, it is important to stress that the City has an obligation of means. It must take reasonable steps to deal with snow removal in such a way that dangerous conditions are prevented and mitigated.

It is not responsible, ipso facto , for injuries, as it would be if it had an obligation of result or of insurance. As well, conditions that are misleading to a user, constituting a form of trap, are indicative that there has been a lack of compliance by the City with its obligation of means. [ 39 ] In municipal law questions, there is also the principle that cities have limited resources and that the quality of services provided are to a certain extent a political issue, not an issue of responsibility.

The statute relativizes the City’s duties in light of weather conditions. [ 40 ] In that context the Court took notice of the weather predictions and the actual weather. It was predictable according to the weather forecast, that accumulations of water on sidewalks would freeze forming glare ice. This is not an extraordinary weather condition, nor is freezing rain. It was foreseeable to the City’s supervisory personnel that the type of condition that is described by the Plaintiff would probably develop during the day of January 24th.

Steps were only taken to spread abrasives in the evening. [ 41 ] The City provides, as part of its programme the adjustment to its sanding and salting procedures as weather changes, on the basis of checking the data four times per day.

There is also, as part of the programme two important factors: the priority given to arteries and areas of higher pedestrian traffic, such as schools, and the practice of sending teams to deal with areas manually, with small trucks carrying abrasives, and workers with shovels. [ 42 ] Because the decision had been made not to clear snow away from the sidewalk during the warm period that preceded the day of the event, it was obvious that the melting snow and accumulating rain would freeze during a subsequent period of sudden dropping of the temperature and absence of precipitation.

That is precisely what happened during the day of January 24 th . [ 43 ] The witness appearing on behalf of the City did not explain why priority for preventative spreading of abrasives was not given to this location, which was both a wide and much-used sidewalk area in proximity to a major artery, and adjacent to a daycare centre in a

very busy area of the city. [ 44 ] When taking into account the weather forecasts and the actual weather, the conditions that existed at the end of the afternoon when the Plaintiff fell demonstrate that the City’s priorities and procedures as explained to the Court were not respected. The City did not fail to have in place an appropriate system of snow removal and spreading of abrasives, but the resources available as part of this system were not effectively used by the City.

While it may be that this was a difficult year, there is no suggestion in the evidence that it was an extraordinary or unpredictable weather occurrence. The Court therefore finds negligence or fault within the meaning of the law. This fault was the direct cause of the Plaintiff’s fall and injuries. [ 45 ] On the issue of quantum, the Court notes that this was not a complex injury, nor an injury with any complications or long-term disability. The prejudice of the fall itself and the medical treatments was significant, but not very long lasting.

The cast was in place only for a few weeks, and the only subsequent treatment was physiotherapy, which the Plaintiff was able to do as prescribed over a three- month period and which gave rise to a complete recovery. [ 46 ] On a global basis, for the initial trauma and the short-term disability, the Court arbitrates the non-pecuniary damages at $ 6,000. The fees for physiotherapy amount to $ 597.00. BY THESE REASONS, THE COURT: ALLOWS the Plaintiffs claim in part; CONDEMNS the Ville de Montréal to pay the Plaintiff $ 6,597, with interest at the legal rate the additional indemnity provided at

article 1619 of the Civil Code of Québec , calculated from May 18, 2018; JUDICIAL COSTS of $ 205 in favour of the Plaintiff. __________________________ David L. Cameron, J.C.Q. Date of hearing: May 31, 2021