2015 QCCQ 1198, 2015 QCCQ 1198

Roberts c. Alimentation J.P.J Martin inc. (IGA Martin) 2015 QCCQ 1198 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL Civil Division No. 500-32-117153-090 DATE: February 24, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE GILLES LAREAU J.C.Q. ______________________________________________________________________ GARRY ROBERTS [...] Pierrefonds (Quebec) [...] Plaintiff v.

ALIMENTATION J.P.J MARTIN INC., doing business under the name IGA MARTIN 11130, chemin Meighen Pierrefonds (Québec) H8Y 3K8 and LES PAYSAGISTES BEL-AIR INC. 11387, West Gouin Boulevard Roxboro (Quebec) H8Y 1X7 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Garry Roberts (ROBERTS) claims from Alimentation JPJ Martin Inc. (IGA MARTIN) the sum of $7000.00 in damages further to a fall on a sidewalk located on the property where IGA MARTIN operates a grocery store. [ 2 ] IGA MARTIN contests the claim and denies it committed any fault whatsoever. [ 3 ] IGA MARTIN called in warranty Les Paysagistes Bel-Air inc. (BEL-AIR), the business in charge of snow removal on the sidewalk in question. [ 4 ] BEL-AIR contests the claim as well, alleging that the sidewalk was maintained according to good practice.

THE FACTS [ 5 ] On January 25, 2009, at around 7:00 p.m., ROBERTS slipped on the sidewalk and injured himself coming out of the grocery store that belongs to IGA MARTIN. [ 6 ] He returned home with great difficulty, but the next day the pain was so severe that he had to take an ambulance to go to the emergency clinic. The x-ray showed a [TRANSLATION] "small post-fall left pneumothorax". ROBERTS contends that he also fractured ribs. ROBERTS was on leave from work until March 20, 2009. [ 7 ] ROBERTS contends that snow removal was inadequate and left a patch of ice on the sidewalk, which was a trap.

He is seeking compensation for the following damages: - Loss of employment income $5132.00 - Transportation expenses (ambulance + taxi) $200.00 - Attorneys’ fees $1196.48 - Court costs $157.00

- Cost of medication $13.00 - Suffering, trouble and inconvenience $301.52 TOTAL $7000.00 GROUNDS FOR THE DEFENCE [ 8 ] IGA MARTIN and BEL-AIR argued the same grounds in their defence. They did not commit any fault. They allege ROBERTS’ fall was due to his own negligence for going out in the month of January wearing only a pair of athletic shoes when the temperature was below -16°C. QUESTIONS IN DISPUTE [ 9 ] The following questions are in dispute in this case: - Did ROBERTS establish a fault in the snow removal from the sidewalk of IGA MARTIN? - If so, what damages were caused by that fault? ANALYSIS [ 10 ] ROBERTS’ recourse is subject to the rules for extracontractual liability.

Article 1457 of the Civil Code of Québec (C.C.Q.) provides for the following in that regard: 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 or fault of another person or by the act of things in his custody. [ 11 ] To allow and even invite access to an immovable where an enterprise operates a business carries with it a duty of security, in this case, that of ensuring that the sidewalks and parking lot are not a danger to the pedestrians who use them. [ 12 ] That duty is an obligation of means.

Baudouin and Jobin define that obligation as follows: [TRANSLATION] 34- Obligation of means – An obligation of means is the debtor’s obligation to provide satisfaction by acting prudently and diligently with a view to obtaining the agreed-upon result by all reasonable means, without however ensuring the creditor that the result will be achieved. [1] [ 13 ] In Québec, it is unthinkable to believe that sidewalks and parking lots can be free of snow and ice at all times. Walking in winter sometimes inevitably involves a certain degree of risk.

That reality imposes a correlative duty of prudence and diligence on all individuals. [ 14 ] During his testimony in chief, ROBERTS stated that he was wearing winter boots at the time of the accident. That version was consistent with the statement he made previously to the defendants’ insurers, even providing a photo of said boots. According to that version, he was wearing dark boots that had a black outsole with large ridges (see Exhibit D-3). [ 15 ] At the hearing, the defendants filed photos taken by the security cameras. It was noted that ROBERTS was wearing athletic shoes with white outsoles.

Confronted with that evidence, ROBERTS admitted that it was possible he was wearing that type of shoe and not winter boots. [ 16 ] Faced with that evidence, it is more difficult to give much probative weight to ROBERTS’ testimony. One thing is certain, he showed a certain recklessness by going out in athletic shoes on January 25, 2009, with a temperature of -16°C. [ 17 ] It was up to ROBERTS to establish by preponderant evidence that his fall was caused by the defendants’ fault of not adequately removing the snow and ice from the sidewalk of IGA MARTIN. That is, in particular, what

article 2803 of the Civil Code of Quebec provides for: 2803. A person seeking to assert a right shall prove the facts on which his claim is based.

A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 18 ] Proof of such a fault relies on the sole testimony of ROBERTS, which is not corroborated by any other testimony, documentary or physical evidence. His testimony does not offer sufficient reliability and, in the absence of other evidence, fails to satisfy the burden of proof imposed by law. [ 19 ] Given the Court’s opinion on the lack of evidence of a fault by the defendants, the issue of the quantum of damages becomes moot.

THEREFORE, THE COURT : DISMISSES the claim; With court costs of $199.00. __________________________________ GILLES LAREAU J.C.Q. Date of hearing: January 12, 2015