Crowley v. Halifax (Regional Municipality), 2023 NSSC 372

SUPREME COURT OF Nova Scotia Citation: Crowley v. Halifax (Regional Municipality) , 2023 NSSC 372 Date: November 21, 2023 Docket: 455796 Registry: Halifax Between: John Edward Crowley Plaintiff v. Halifax Regional Municipality, a body corporate and Leahey’s Landscaping and Contracting Limited, a N.S. Limited Company Defendants Judge: The Honourable Justice Gail L. Gatchalian Heard: May 9, 2022 and July 17 and 18, 2023, in Halifax, Nova Scotia Counsel: Lyndsay Jardine and Liam O’Reilly, for the Plaintiff Dennise K. Mack, Danette C.

Cashman and Nick Grant, for the Defendants By the Court: Introduction [ 1 ] At about 11:00 p.m. on March 8, 2016, the Plaintiff, John Edward Crowley, was walking along a sidewalk on Agricola Street in the north end of Halifax when he slipped and fell on a patch of ice. The Defendants, the Halifax Regional Municipality and Leahey’s Landscaping and Contracting Limited, concede that they owed a duty of care to Mr. Crowley and that Mr. Crowley was injured as a result of the fall. The parties have come to an agreement on damages.

The central issue is therefore whether the Defendants breached their duty to take reasonable care to ensure that pedestrians were reasonably safe while walking on the sidewalks in the North End. [ 2 ] Mr. Crowley says that Leahey’s breached the standard of care because Leahey’s failed to ensure that there were adequate amounts of salt applied to the sidewalk. Mr. Crowley says that Leahey’s conduct was not reasonable in the circumstances. Mr. Crowley says that, in determining the reasonableness of Leahey’s conduct, the Court should take into account the following: 1.

The requirements of the contract between the Municipality and Leahey’s. 2. The following features of the relevant area of Agricola Street, namely: a. There is no grass between the sidewalk and the curb. b. Many physical structures, such as porches and stairs, abut the sidewalk. c. There are many physical obstacles on the sidewalk, such as telephone poles. d. People often move snow off their stairs, porches, cars and driveways on to the sidewalk. e. Street plows often move snow from the street on to the sidewalk. f. There is a significant amount of pedestrian traffic on the sidewalk.

3. Leahey’s practice of having operators inspect the sidewalks from their equipment while driving up and down the roads instead of on the sidewalks, which Mr. Crowley says was not reasonable because the operators would not have had an adequate view of the sidewalks from the road due to the height of the equipment, snowbanks, cars parked on the side of the road, the unique features of this part of Agricola Street, and darkness. 4. The lack of detail in Leahey’s records about the nature or location of the work of the operators. 5.

The failure of Leahey’s to have an operator inspecting the sidewalks overnight on March 5, 6 and 7, 2016, during freeze/thaw cycles. [ 3 ] Mr. Crowley says that the Municipality breached the standard of care owed to him because the Municipality is ultimately responsible for snow clearing on Halifax sidewalks. [ 4 ] The Defendants dispute the presence of ice in the area of Mr. Crowley’s fall. The Defendants also say that there was salt on the sidewalk where Mr. Crowley fell. They say that, even if there was ice and no salt on the sidewalk, Mr.

Crowley has failed to establish a prima facie case of negligence because, in cross-examination, Mr. Crowley agreed that he had walked the equivalent of ten city blocks of sidewalks before he slipped and fell, and he agreed that those sidewalks were in reasonably good condition. The Defendants say that, even if the court finds a prima facie case of negligence, the Defendants had an adequate system of inspection and maintenance in place. [ 5 ] At the first day of trial on May 9, 2022, Mr. Crowley testified and tendered two exhibits: a Joint Exhibit Book and the sneakers that he was wearing on the night of his fall.

The Joint Exhibit Book included, among other things, pictures of the sidewalk where Mr. Crowley fell, as well as the contract between the Municipality and Leahey’s governing Leahey’s winter sidewalk snow and ice control operations . The parties agreed that the documents in the Joint Exhibit Book were admitted for the truth of their contents without need for further proof. After Mr. Crowley’s testimony, he closed his case. The Defendants then made a motion for non suit. I dismissed the motion for non suit in a decision dated October 27, 2022: 2022 NSSC 294 . [ 6 ] The trial reconvened on July 17 and 18, 2023.

The Defendants called three witnesses: 1. Thomas Laing, a Contract Supervisor employed with the Municipality, who described the duties of Contract Supervisors as including monitoring the performance of contractors such as Leahey’s, and who testified that the Municipality had no concerns about Leahey’s performance. 2. Matthew Leahey, sole owner and operator of Leahey’s, who described the operation of Leahey’s at the relevant time, as well as his own work checking the sidewalks and salting when necessary during the day on March 8, 2016, up to 4:00 p.m. 3.

Jeff MacLean, an employee of Leahey’s, who worked the night shift on March 8, 2016, and whose responsibilities included checking the sidewalks and salting any icy spots that he found. [ 7 ] In order to determine whether Mr. Crowley has established negligence on the part of Leahey’s or the Municipality or, I will address the following: 1. The task before me, having dismissed the non-suit motion. 2. The standard of care. 3. The applicable legal principles. 4. Has Mr. Crowley proved that he fell on a patch of ice? 5. Has Mr. Crowley proved that there was no salt on the patch of ice? 6. Has Mr.

Crowley established a prima facie case of negligence? If Mr. Crowley has established a prima facie case of negligence:

7. What system of inspection, maintenance and monitoring did the Municipality have in place? 8. What system of inspection, maintenance and monitoring did Leahey’s have in place? My Task Following Dismissal of the Non-Suit Motion [8] In dismissing the Defendants’ non-suit motion, I found that Mr. Crowley had presented some evidence on which a properlyinstructed jury could infer that the Defendants breached the standard of care and were therefore negligent. I must now resolve thequestion of whether Mr.

Crowley has established his case on the balance of probabilities now that all of the evidence has been heard: seeShane v. 3104854 Nova Scotia Ltd., 2013 NSCA 84 at para.22. The Standard of Care [9] The Municipality, as an occupier of a “public walkway,” is excluded from the operation of the Occupiers’ Liability Act, S.N.S.1996, c.27: s.12(2). The common law therefore dictates the standard of care owed by the Municipality to Mr. Crowley.

In the non-suitdecision, I rejected the Defendants’ position that the Municipality had a common law duty to use reasonable care to prevent injury froman “unusual danger.” Rather, I found that the Municipality owed a duty to Mr. Crowley at common law to take reasonable care: paras.8and 16, and see Bowden v. Withrow’s Pharmacy Halifax

(1999) Ltd., 2008 NSSC 252, cited with approval in Nelson (City) v. Marchi,2021 SCC 41 at para.28. [10] After closing arguments on the merits, I asked the parties to brief me as to whether Leahey’s, in the circumstances of this case,is governed by the Act. The parties responded in a joint letter to say that the standard is the same whether the Act applies to Leahey’s ornot, that is, Leahey’s had a duty to take reasonable care.

Summary of Legal Principles [11] An occupier has a positive obligation, both at common law and under the Act, to ensure that those who enter on the premisesare reasonably safe. The onus is on Mr. Crowley to prove on a balance of probabilities that the Defendants failed to meet the standard ofreasonable care: see Theriault v. Avery’s Farm Markets Limited,

(2022) NSCA 36 at para.63, citing Miller v. Royal Bank of Canada,2008 NSCA 118, and Gallant v. Roman Catholic Episcopal Corporation, 2001 NFCA 22. [12] The fact that Mr. Crowley suffered an injury when he fell, in and of itself, does not create a presumption of negligence on thepart of the Defendants. Mr. Crowley must point to some act or failure to act on the part of the Defendants that resulted in his injury:see Theriault at para.63, citing Miller and Gallant. [13] Demonstrating the existence of

an act or omission by the Defendants does not give rise to an automatic finding of negligence.Whether

an act or omission constitutes negligence giving rise to a breach of the standard of care will depend on all the circumstances.

Inassessing whether an occupier has taken reasonable care in the circumstances to make the premises safe, the factors to be considered bythe trial judge will be specific to the particular fact situation: see Theriault at paras.63-64, citing Miller, Gallant and Waldick v.Malcolm, (SCC), [1991] 2 S.C.R. 456 at para.33. [14] In determining whether the duty of care created by s.4(1) of the Act has been discharged, the Court must consider the six non-exhaustive list of factors in s.4(3) of the Act: (1) the knowledge that the occupier has or ought to have of the likelihood of persons orproperty being on the premises; (2) the circumstances of the entry into the premises; (3) the age of the person entering the premises; (4)the ability of the person entering the premises to appreciate the danger; (5) the effort made by the occupier to give warning of thedanger concerned or to discourage persons from incurring the risk; and (6) whether the risk is one against which, in all the circumstancesof the case, the occupier may reasonably be expected to offer some protection. [15] If Mr.

Crowley is able to demonstrate a prima facie case of negligence, the Defendants can discharge their evidential burden byshowing that they had a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance betweenwhat is practical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on theproperty: Theriault, supra at para.63. [16] As stated by David G. Boghosian & J.

Murray Davison in The Law of Municipal Liability in Canada, (Toronto:Butterworths,1999) at para.3.210, and cited with approval by Beveridge J. as he then was, in Bowden, supra at para.129: The mere presence of ice and snow on the ground is not evidence of negligence. A municipality will be found to have breached its dutyonly where it has permitted snow and ice to accumulate so as to render the sidewalk dangerous for pedestrians using ordinary care.

Putanother way, the municipality has a duty to keep the sidewalk in a reasonably safe condition for pedestrian traffic using ordinary care, inlight of all of the surrounding circumstances. These circumstances include the time and place of the accident, the weather conditionsprevailing at the time, the location of the sidewalk, the knowledge that the municipality had, or ought to have had and the municipality’sopportunity to remedy the condition.

This necessarily requires an inquiry into the municipality’s system of inspection and maintenance. [17] The standard of care that the Defendants are required to meet is reasonableness, not perfection: see the decision of theHonourable Justice Jeffrey R. Hunt in MacPherson v. Strait Regional Center for Education, 2023 NSSC 167 at paras.65-66 and 82. [18] Members of the public are not entitled to expect that sidewalks will be completely free and clear of snow and ice at all timesduring our winters. Such a standard of perfection would be unreasonable. The Municipality, and its contractors, are entitled to a

reasonable time to do what is reasonably necessary. See Bowden , supra at para.127. [ 19 ] The duty to make premises “reasonably safe” does not mean that there must be “constant surveillance and immediate response”, “constant dedicated supervision”, or that the occupier must “remove every possibility of danger”: see MacPherson v. Strait Regional Center for Education , supra at para.82, citing Swagar v. Loblaws , 2014 ABQB 58 at para.58. Did Mr. Crowley Fall on a Patch of Ice? [ 20 ] Mr. Crowley was alone when he fell. No one else witnessed him fall.

He had walked the equivalent of ten city blocks of sidewalks with no problem until he slipped and fell. He testified that his fall was caused by a large patch of ice. He attempted to take a picture of the ice. Unfortunately, the picture is blurry, and does not allow the Court to determine what is captured in the picture. The area of sidewalk where Mr. Crowley fell was clear of snow. The sidewalk was bordered on both sides by snowbanks less than a foot high. The temperature during the day on March 8, 2016 was above zero, and the temperature later in the day, likely for an hour or two before Mr.

Crowley’s fall, was below zero. It is therefore likely that some of the snow bordering the area of sidewalk where Mr. Crowley fell melted during the day, that some of this water ran on to the sidewalk, and froze before Mr. Crowley’s fall. I find, on a balance of probabilities, based on the foregoing evidence, that Mr. Crowley’s fall was caused by his slipping on a large patch of ice on the sidewalk. Has Mr. Crowley Proved the Absence of Salt on the Patch of Ice? [ 21 ] At trial, Mr. Crowley testified that, after he fell, he used his hands, palms down, to get up from the prone position.

He was not wearing gloves and did not feel anything gritty or sharp on his hands. He did not notice any salt staining on his clothes. He did not see any salt on the ground in the area when he fell. [ 22 ] The Defendants say that Mr. Crowley’s credibility is affected by the fact that, in his discovery examination on February 20, 2019, he was asked whether he looked for salt on the sidewalk when he fell, and he said “no.” [ 23 ] I do not find that Mr. Crowley was being untruthful in his testimony. Rather, I conclude that Mr. Crowley’s memory was better during discovery examinations.

His discovery took place just under three years after his fall. His testimony took place over six years after his fall. I find that Mr. Crowley did not look for salt on the sidewalk when he fell. [ 24 ] The Joint Book of Exhibits contains a copy of an email from a Halifax Regional Municipality call centre operator on March 8, 2016 at 11:48 a.m., stating that the police had requested that salt be applied to the area of the sidewalk at issue. There is another email from Mr. Laing to Mr.

Leahey at 12:18 a.m. on March 9, 2016, confirming that a Halifax Regional Municipality crew applied salt to the sidewalk location at issue. However, I am not able to determine, based on these facts, that there no salt on the sidewalk at issue at the time of Mr. Crowley’s fall. [ 25 ] The Defendants rely on a picture that Mr. Crowley took of part of the sidewalk in the area where he fell, within minutes of his fall, to assert that the white, granular specks seen on the sidewalk in the bottom right-hand part of the picture are granules of salt: see Joint Exhibit Book, Tab 1, p.2.

The picture does not depict the exact area of Mr. Crowley’s fall, but shows a

section of sidewalk close to one of the houses that abuts the sidewalk, very close to the area of Mr. Crowley’s fall. [ 26 ] Mr. Crowley testified in cross-examination that the picture at Tab 1, p.2 of the Joint Exhibit Book “possibly” shows granules of salt on the sidewalk, in the bottom right-hand corner of the picture. I find that the white, granular specks seen on the sidewalk in the picture are, in fact, granules of salt. The white specks are lying on top of the sidewalk, and are not components of the sidewalk. They have the appearance of salt: white and irregularly-shaped.

I conclude that there was salt on the sidewalk very close to the area of Mr. Crowley’s fall, and that Leahey’s had applied salt to the area of the sidewalk in question before Mr. Crowley’s fall. [ 27 ] Mr. Crowley has not established that Leahey’s failed to apply salt to the sidewalk. Nonetheless, I will go on to determine whether, even if there was no salt on the area of the sidewalk in question at the time of Mr. Crowley’s fall, Mr. Crowley has established a prima facie case of negligence on the part of the Defendants. Prima Face Case of Negligence? [ 28 ] The Defendants assert that Mr.

Crowley walked the equivalent of ten city blocks on city sidewalks without issue. However, not all of the streets he walked on that evening fell within the responsibility of Leahey’s under the contract. I find that Mr. Crowley walked the equivalent of seven city blocks on city sidewalks that were within the responsibility of Leahey’s under the contract. [ 29 ] Leahey’s was responsible for an area in the north end of Halifax designated by the Municipality as Southwest Peninsula Area Six (“SWP6”). Mr. Crowley agreed with this estimate on cross-examination: • He walked approximately 1.5 blocks west on West Street.

Under the contract, Leahey’s was responsible for West Street. • He walked approximately 2 blocks north on Davison Street. Under the contract, Leahey’s was responsible for Davison Street. • He walked approximately 2 blocks on Robie Street to North Street, and then approximately 1 block on Robie Street to Agricola Street. Under the contract, Leahey’s was not responsible for Robie Street or North Street. • He walked approximately 3.5 blocks on Agricola Street before he fell. Under the contract, Leahey’s was responsible for this area

of Agricola Street. See the map at Tab 3 of the Joint Exhibit Book. The streets outlined in blue (as distinct from highlighted in blue) show the streets in SWP6 that fell under Leahey’s responsibility. [ 30 ] Mr. Crowley agreed that, before he encountered the patch of ice that he fell on, he had no problems walking, did not encounter any problems, and he agreed that the sidewalks were in reasonably good condition. [ 31 ] Mr. Laing was the on-call Contract Supervisor the night of March 8, 2016. He was on-site in just over an hour after Mr. Crowley’s fall, and took photos of the sidewalk where Mr.

Crowley fell. [ 32 ] During his direct examination, Mr. Crowley marked the area where he fell on one of the pictures taken by Mr. Laing (see Tab 6 of the Joint Exhibit Book, p.23). The picture was taken from the street looking at the sidewalk. That picture shows a large wet spot on the sidewalk. The wet spot appears to be run-off from either the snow in the private driveway on one side of the sidewalk or from the snowbank on the street side of the sidewalk, or both. The sidewalk on either side of that wet spot is dry. There is no snow on the sidewalk. Mr.

Laing confirmed that the sidewalk was bare and dry the full length that he could see except for this one spot of run-off. I conclude from this picture, which was taken just over one hour after Mr. Crowley’s fall, and from Mr. Laing’s evidence that the sidewalk was bare on either side of the icy patch that caused Mr. Crowley’s fall at the time of Mr. Crowley’s fall. [ 33 ] The duty imposed on the Defendants was to take reasonable care to ensure that the sidewalks were reasonably safe. I find that the sidewalks were reasonably safe.

I do not find that the presence of one patch of ice, even if large, and even if it did not have salt on it at the time of the fall, in a stretch of seven city blocks worth of sidewalks that were in reasonably good condition and safe enough to traverse in sneakers, is enough to establish a prima facie case of negligence on the part of either Leahey’s or the Municipality. [ 34 ] In the event that I am wrong on this point, I will go on to consider whether the Municipality and Leahey’s had a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on the property.

What System of Inspection, Maintenance and Monitoring did The Municipality Have? [ 35 ] I am satisfied that the Municipality had an adequate system of inspection, maintenance and monitoring because: 1. The contract between the Municipality and Leahey’s governing Leahey’s responsibilities for winter snow and ice control on sidewalks in SWP6 was comprehensive and contained stringent performance standards that Leahey’s was required to meet. 2. The Municipality’s Contract Supervisor was regularly in the field inspecting Leahey’s work under the contract. 3.

This was Leahey’s second year performing work under the contract and the Municipality had no concerns about Leahey’s performance. Comprehensive and Stringent Performance Standards [ 36 ] In

Section 4 of the contract, entitled “Description of Works,” Leahey’s was required to supply all labour, materials, equipment, fuel, transportation, supplies, supervision, communication requirements, reporting requirements and customer service requirements necessary to perform winter sidewalk snow and ice control in SWP6. The work included snow plowing and salt and sand spreading on designated sidewalks. SWP6 contained approximately 54 kilometres of designated sidewalks. [ 37 ] In

Section 5 of the contract, entitled “Contractor’s Responsibilities,” Leahey’s was required to: 1. ensure that winter maintenance activities were performed in accordance with the performance standards set out in the contract; 2. ensure that all staff engaged in winter maintenance activities were properly trained and knowledgeable of the performance standards; 3. be prepared and capable of carrying out snow and ice control activities at anytime, 24 hours a day, seven days a week, during the contract period;

4. supply all the necessary equipment, labour and materials required to undertake snow and ice control activities; 5. determine the equipment, labour and material needs to meet the requirements of the contract including but not limited to the review of routes to access physical restrictions and narrow than average sidewalk widths and areas requiring hand shoveling; 6. monitor weather conditions 24 hours a day, seven days a week during the contract period; … [ 38 ] Under

Section 11 of the Contract, entitled “Communication Requirements,” Leahey’s was required to be available 24 hours a day, seven days a week by phone and e-mail to communicate with the Municipality’s supervisory staff in regards to operational progress, residents’ concerns and service requests. [ 39 ] The performance standards relevant to this case were as follows: 1. to conduct daily inspections during freeze/thaw events and to ensure that sidewalks were down to “full width bare surface” within eight hours of a freeze/thaw event; and 2. to apply salt when weather conditions dictate to provide a walking surface “as bare as possible.”

Section 7D of the contract, entitled “Performance Standard Matrix,” and

Section 7.3 of the contract, entitled “Salt/Sanding Spreading” Regular In-Field Inspection of Leahey’s Work [ 40 ] In

Section 6 of the contract, entitled “HRM Responsibilities,” the Municipality was responsible for inspecting the work performed by Leahey’s to ensure compliance with the requirements of contract. [ 41 ] The inspection of Leahey’s work by the Municipality was carried out by a Contract Supervisor. Bill Arbuckle was the Contract Supervisor responsible to oversee Leahey’s work during the 2015/2016 winter season.

He and the other Contract Supervisors spent approximately four to six hours of every eight-hour work day in the winter “in the field,” inspecting the work of snow and ice control contractors within the Contract Supervisor’s responsibility. The Contract Supervisors inspected in the field both in and out of the truck, walking around the contract areas including walking sidewalks. If something needed to be addressed, they contacted the contractor. Mr. Arbuckle, Mr. Laing and most of the staff in the Contract Supervisors’ office had email addresses and phone numbers for Mr.

Leahey and Leahey’s office in order to contact Leahey’s twenty-four hours a day, seven days a week. No Performance Concerns [ 42 ] The Contract Supervisors conducted annual performance reviews of the snow and ice control contractors. This was Leahey’s second winter season conducting work under the contract. No concerns were ever raised by the Municipality about Leahey’s performance under the contract. The Municipality had a favourable view of Leahey’s performance. What System of Inspection, Maintenance and Monitoring did Leahey’s Have? [ 43 ] As discussed, the Act does not apply to the Municipality.

The parties took the position that the standard of care applicable to Leahey’s was the same, regardless of whether the Act applies to Leahey’s. As such, in determining whether Leahey’s breached the standard of care, I will consider, amongst other relevant factors, the factors listed in s.4(3) of the Act . With respect to those factors, I conclude as follows: • Leahey’s knew or ought to have known that it was likely that pedestrians of all ages would be using the sidewalks in SWP6 in March of 2016, including the evening of Mr.

Crowley’s fall. • Those pedestrians would have different abilities to appreciate the danger of ice during the freeze-thaw cycle. The sidewalk in question was well-lit at the time of Mr. Crowley’s fall.

It was mild during the day, with temperatures dropping at night, creating a risk of ice forming in the evening. • Neither the Municipality nor Leahey’s warned pedestrians of the danger of ice forming during the freeze-thaw cycle or discouraged persons from walking on the sidewalks the evening of March 8, 2016. • The risk of ice forming on the sidewalk at issue during the freeze-thaw cycle on March 8, 2016 was a risk that, in all the circumstances of this case, the Municipality and Leahey’s may reasonably be expected to offer some protection.

[ 44 ] In light of my conclusions with respect to s.4(3) of the Act , the question remains whether Leahey’s had an adequate system of inspection, maintenance and monitoring. I find that it did: 1. Mr. Leahey was available 24 hours a day, seven days a week. 2. Mr. Leahey was regularly on-site inspecting the conditions, the work of his employees, and performing the work himself. 3. Leahey’s had the proper equipment. 4. Leahey’s employees were sufficient in number, trained, and in constant communication with Mr. Leahey. 5. Mr. Leahey was constantly monitoring weather conditions and forecasts. 6.

Leahey’s operators plowed, salted and inspected the sidewalks in SWP6 daily between March 5, 2016, when there was a snow event, and March 8, 2016, the day of Mr. Crowley’s fall. 7. Mr. MacLean worked the night shift on March 8, 2016 to inspect and salt problem areas in SWP6 during the expected freeze-thaw event. Matt Leahey Available 24/7 [ 45 ] Mr. Leahey was the direct contact for the Municipality in relation to the contract. He was available 24 hours a day, 7 days a week, to be contacted and to ensure that snow and ice control activities were carried out according to the contract.

Matt Leahey Regularly On-Site [ 46 ] Mr. Leahey was very involved in the day-to-day operations of Leahey’s. Amongst other things, he conducted quality control, interacted with employees, and ensured that they were completing their tasks. He spent a great deal of time on site, day and night, patrolling and inspecting the sidewalks in SWP6. Mr. Leahey also performed snow and ice control activities in SWP6 himself.

Proper Equipment [ 47 ] Leahey’s purchased the following equipment specifically to carry out snow and ice control on the sidewalks in SWP6: • one 2014 Bobcat S70 • five Whacker Nelson WL30s • one Bobcat S185 all outfitted with plows and salters. [ 48 ] This equipment was capable of plowing and salting the sidewalks in SWP6. [ 49 ] The Whackers, when purchased, were a loader machine, with arms and no salter. Leahey’s modified the Whackers specifically for this contract by removing the arms, fitting counterweights, fitting plows, and mounting salters to the back of them.

At the time, there were no other contractors in the area using this kind of equipment. There were larger pieces of equipment available, but they would not have been able to properly get into the sidewalks in SWP6. [ 50 ] Leahey’s had salt delivery trucks, as well as pick-up trucks to patrol the sidewalks in SWP6. The trucks were outfitted with plows on the front and salters on the back, which also allowed for hand salting.

Employees Adequate in Number, Trained, and in Regular Communication with Matt Leahey [ 51 ] Leahey’s dedicated six or seven employees to carry out the SWP6 contract, and more would be assigned to this contract in the event of a heavy snowfall. [ 52 ] Mr. Leahey made the decisions regarding when to send out crews and the activities to be carried out each day or night. Mr. Leahey provided his employees with training, and reviewed the routes with them. Mr. Leahey and his employees were available 24 hours a day, 7 days a week to carry out snow and ice control under the contract.

[ 53 ] Mr. Leahey and his employees engaged in frequent text messaging, including exchanging photographs and videos, as well as phone conversations so that Mr. Leahey could see the routes, the results employees were getting, any complications, and conditions in the relevant areas, for example, whether there were any obstacles in the way, such as trash bins on the sidewalks. One storm event could result in Mr. Leahey having a hundred phone calls and hundreds of text messages with staff. Matt Leahey Constantly Monitored Weather Conditions and Forecasts [ 54 ] Mr.

Leahey monitored current and forecasted weather conditions daily and constantly to determine how the weather was affecting walking conditions. Mr. Leahey monitored weather by looking at Environment Canada and the Weather Network reports for real time and forecasted conditions. He monitored the weather app on his phone. His home was close to SWP6, and he could be on site in eight minutes to determine the current weather. He had a weather station at his home that he monitored. Each truck was outfitted with ground temperature sensors. Leahey’s Operators Plowing, Salting, Inspecting March 5-8, 2016 [ 55 ] Mr.

Leahey had, for operational purposes, divided SWP6 into five sections identified by colour: red, pink, blue (blue highlighting as distinct from blue outlining of the streets within SWP6), yellow and purple: see the map at Tab 3 of the Joint Book of Exhibits. The SWP6 sidewalks traversed by Mr. Crowley on the evening of March 8, 2016 fell within the purple area. [ 56 ] There was significant snowfall in Halifax on March 5, 2016. As a result, five Leahey’s operators were out plowing the sidewalks in SWP6 on that day. Three operators plowed the sidewalks in the purple

section that day: • Eric Christensen plowed the sidewalks in the purple and blue sections from 8:45 a.m. to 5:45 p.m. in a Bobcat S70; • Chris Findlay plowed the sidewalks in the purple, green and pink sections in a Whacker from 9:00 a.m. to 5:30 p.m.; and • Mr. Leahey plowed the sidewalks in SWP6 as a whole in a Whacker from 12:00 p.m. to 6:00 p.m. [ 57 ] There was no further precipitation the next day, March 6, 2016. On March 6, 2016, three Leahey’s employees were out plowing and salting the sidewalks in SWP6. One employee, Mr.

Christensen, plowed and salted the sidewalks in the purple and blue sections with a Whacker from 7:30 a.m. to 9:30 p.m. [ 58 ] Mr. Leahey did not assign anyone to check the sidewalks for ice during the night on March 6, 2016 because operators were out all day clearing snow and salting, and once the temperature dropped below freezing, there was no further risk of run-off and no need to patrol during the night. [ 59 ] There was no further precipitation the next day, March 7, 2016. On March 7, 2016, two Leahey’s operators inspected and salted the sidewalks in SWP6, including the purple section: • Mr.

Leahey inspected and salted the sidewalks in SWP6 in general using a truck from 7:00 a.m. to 5:00 p.m.; and • Mr. Christensen inspected the sidewalks for half an hour in a truck from 7:15 to 7:45 a.m., and then plowed and salted the sidewalks with a Whacker in the purple, blue, green and pink sections from 4:00 a.m. to 6:00 p.m. [ 60 ] Mr.

Leahey did not assign anyone to check the sidewalks for ice during the night on March 7, 2016, because operators were out all day inspecting the sidewalks and salting, and once the temperature dropped below freezing there was no further risk of run-off and no need to patrol during the night. [ 61 ] There was no further precipitation on March 8, 2016. During the day on March 8, 2016: • Mr. Christensen inspected and salted the sidewalks in SWP6 in a Bobcat S70 from 6:40 a.m. to 4:15 p.m. • Mr.

Leahey inspected and salted the sidewalks in SWP6, as well as parking lots pursuant to other contracts in the HRM area, in a truck from 8:00 a.m. to 4:00 p.m. Jeff MacLean Conducted Night Patrol on March 8, 2016 [ 62 ] Mr. Leahey assigned Jeff MacLean to conduct night patrol of the sidewalks in SWP6 on March 8, 2018 because Mr. Leahey was monitoring the current and predicted weather conditions. It was quite a mild day. Temperatures were predicted to dip below freezing that evening. Mr. Leahey could see that there was a risk of a freeze/thaw cycle, resulting in the formation of some patches of ice that evening.

Even though temperatures were not predicted to fall below zero until later in the evening, he assigned Mr. MacLean to work from 7:00 p.m. on March 8, 2016 to 7:00 a.m. on March 9, 2016.

[ 63 ] Mr. MacLean confirmed in his testimony that he worked from 7:00 p.m. on March 8, 2016 to 7:00 a.m. on March 9, 2016, inspecting the sidewalks in SWP6, including the sidewalks in the purple area, and salting where necessary, using a pick-up truck. [ 64 ] Mr. MacLean acknowledged in cross-examination that his time sheet for the night patrol on March 8, 2016 did not detail which sidewalks he inspected or salted.

He testified, however, that he knew that he inspected and salted as necessary all sidewalks in SWP6, including the purple area and the sidewalk on Agricola Street at issue, because that was his job, and he knew that Mr. Leahey would be checking on him. I found Mr. MacLean to be credible and reliable, and I accept his testimony. [ 65 ] Furthermore, in an email from Mr. Leahey to Mr. Laing on March 9, 2016 at 8:09 a.m., Mr.

Leahey wrote that “Jeff was out salting the run off last night…” The contents of this email, which was in the Joint Book of Exhibits, were admitted by both parties for proof of the truth of their contents. [ 66 ] Mr. MacLean testified that, during the night shift starting on March 8, 2016, he drove the pick-up truck slowly, up and down the streets, to inspect the sidewalks in SWP6. He drove at approximately five to ten kilometres per hour. He loaded the salter before his shift, and re-loaded it as necessary.

He could see over any snowbanks, as the truck was very high up, the snowbanks were very low, and it was a well-lit area. When he could not see the sidewalk from his truck, he exited his truck and examined the sidewalk on foot, which he did several times a shift. If he saw a patch of ice, he applied salt by backing in and salting from the salter on his truck, or by hand, or by calling for a piece of equipment to do so.

Conclusion: Adequate System of Inspection, Maintenance and Monitoring in the Circumstances [ 67 ] Based on the above facts, I find that, despite the challenging features of the sidewalk on Agricola Street, both the Municipality and Leahey’s had a regular regime of inspection, maintenance and monitoring that was more than sufficient to achieve a reasonable balance between what was practical in the circumstances and what was commensurate with the reasonably perceived potential risk to pedestrians . Conclusion [ 68 ] In conclusion, Mr.

Crowley has failed to establish that either the Municipality or Leahey’s breached the standard of reasonable care. [ 69 ] Mr. Crowley’s action against the Defendants is dismissed. [ 70 ] Costs are awarded to the Defendants. If the parties cannot agree on costs, I will receive written submissions from the Defendants within two weeks of this decision, and from Mr. Crowley within one month of this decision. Gatchalian, J.