2022 QCCQ 193, 2022 QCCQ 193

Menahem c. Super C 2022 QCCQ 193 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-708537-198 DATE : January 14, 2022 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ SHARON MENAHEM Plaintiff c. SUPER C and 9173-1588 QUÉBEC INC.

Defendant in Warranty and INTACT, COMPAGNIE D’ASSURANCE Intervenor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the damages for bodily injuries suffered following a fall in the parking lot of the Defendant Super C, located at 1515 Marcel-Laurin Boulevard. [ 2 ] The Defendant argues that it is not the owner of this parking lot, the Defendant in Warranty 9173-1588 Québec Inc. is, from whom Super C leases the premises.

The latter Super C argues that if is not responsible for clearing the parking lot of snow and ice. [ 3 ] The Defendant in Warranty did not appear in Court to contest the Plaintiff’s recourse. [ 4 ] Intact intervene in the present action to represent its insured Super C. [ 5 ] It is not in question that the Plaintiff fell in the parking lot fronting the entrance of the Super C and that she sustained injuries. [ 6 ] It is also not in question that the Defendant in Warranty, and not Super C has the responsibility of clearing the parking lot of snow and ice. [ 7 ] It is well established in the case law [1] that it is not sufficient for the Plaintiff to show that ice was present in the parking lot, she has the burden of proving a fault. [ 8 ] This burden is established at

article 2803 of the Civil Code of Québec which states: 2803 Celui qui veut faire valoir un droit doit prouver les faits qui soutiennent sa prétention. Celui qui prétend qu’un droit est nul, a été modifié ou est éteint doit prouver les faits sur lesquels sa prétention est fondée. [2] [ 9 ] The Plaintiff must show that the Defendant in Warranty was negligent in clearing the snow and ice and of scattering abrasive over the ice.

The mere fact that ice is present does not create a presumption of fault. [ 10 ] The Plaintiff arrived at the Super C by car, driven by her husband, who dropped her off near the entrance of the Super C to allow the Plaintiff to disembark. She stepped on a patch of ice and fell. [ 11 ] At the hearing, the Plaintiff admitted that she did not look on the ground when stepping out of the car that was parked near the patch of ice. [ 12 ] The photographs of the parking lot taken that day [3] show a small portion of the parking lot and a very small patch of ice.

[ 13 ] The presence of ice in winter cannot be qualified as a trap. When walking every person must be mindful of the presence of ice on the ground. [ 14 ] The Plaintiff did not show that Super C and therefore the Defendant in Warranty, were negligent and that a fault was committed. The injuries sustained by the Plaintiff are the result of an accident. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s recourse; WITH COSTS in the amount of $154 representing the judicial stamp of the Contestation of Super C; DISMISSES the Action in Warranty, by Super C against 9173-1588 Québec Inc., without cost. ________________________ DIANE QUENNEVILLE, J.C.Q.