2014 QCCQ 6540, 2014 QCCQ 6540

Thomas c. Sunshine Wood Condominiums 2014 QCCQ 6540 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132763-121 DATE: July 10, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CYNTHIA THOMAS […] Dollard-des-Ormeaux, Quebec, […] Plaintiff v.

SUNSHINE WOOD CONDOMINIUMS 1721 Sunnybrooke Dollard-des-Ormeaux, Quebec, H9B 1R4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Cynthia Thomas sues Sunshine Wood Condominiums claiming $ 6,329.44 as damages relating to an injury resulting from her fall on an icy walkway in a common area of the co-ownership located at 1721 Sunnybrooke, Dollard-des-Ormeaux. [ 2 ] The Defendant is the Syndicate of the co-owners (“Syndicate”), responsible for the common areas.

Mrs Thomas was visiting a friend who lived in one of the units on January 26, 2012. She testifies that she slipped on an icy patch on a common-area walkway when she was leaving her friend’s premises and she suffered injury to her head and to her right arm.

She claims damages based on the injuries themselves, the pain and suffering resulting therefrom and the resulting loss of employment. [ 3 ] The Defendant, represented at the hearing by the Vice-president of Clarity Management Group, the company charged by the Syndicate with the management of the property, contests the claim on the basis that the Syndicate, through its manager, hired a contractor, Maintenance Da Silva, to perform maintenance work, including snow removal and that Maintenance Da Silva diligently managed the area and removed all snow, on or around the condominium premises throughout the 2011-2012 winter season. [ 4 ] More specifically, in his testimony, Mr Alexander Sorial, the Vice-president of Clarity Management Group, produced the contract between Maintenance Da Silva and Syndicat des copropriétaires Sunshine Wood (D-1) as well as an invoice (D-2) showing that the Syndicate was charged $ 260.00 for application of salt and sand on sidewalks on January 25, 2012 at 10:00 a.m. and on January 26, 2012 at 2:00 a.m., as well as on January 27, 2012 at 1:00 p.m.

ISSUES

[ 5 ] Based on the testimony of Cynthia Thomas, there can be no doubt that she suffered injuries when she slipped in the late afternoon on a common area sidewalk while walking back to her car that was parked in the visitor’ area. [ 6 ] The question for the Court to decide is whether this incident occurred as a result of fault on the part of the Syndicate and, if so, to establish the true measure of the Plaintiff’s prejudice as a monetary amount. FACTS [ 7 ] When she parked in the visitors’ parking lot on January 26, 2012, Mrs Thomas noticed that the parking area was extremely icy, in her words “all ice”.

She tip toed from the parking lot along with the common walkways to the private walkway leading to her friend’s unit. [ 8 ] After visiting her friend, as she left in the late afternoon, she was admonished by her friend to be careful because of the poor condition of the sidewalk which, according to Mrs Thomas’ observation, did not appear to be salted. [ 9 ] Although she took care as she stepped from the private walkway onto the common area, she slipped on some ice and, as she attempted to get up, slipped again and again falling continuously.

In the first fall, she bumped her forehead sustaining a cut that bled profusely, soiling her coat. [ 10 ] The area remained bruised for some time and scarred for approximately one year, as can be seen from photographs. [ 11 ] When she fell, she put her right arm out instinctively to stop the fall and she suffered a stiffness and pain in the arm for approximately two weeks afterward. Happily, there was no fracture. [ 12 ] Mrs Thomas was working at the time on an on-call basis as an invigilator for exams for John Abbott College.

When she was active, she could earn approximately a net amount of $ 1,000.00 per two weeks. [ 13 ] The Syndicate of co-owners has a board consisting of six administrators who each occupy one of the six units comprising the project. All aspects of administration were delegated to Clarity Management Group who, in turn, arranged for contracts with service providers, in the case of snow removal, Maintenance Da Silva.

The contract (D-1) under the heading “Déneigement saison 2011-2012” reads: " Deneigement seras effectuer avant 6 am et encore avant 5 pm Deneigement debuteras apres une accumulation de 5 cm Toute les aires de stationnement sont inclut L epandage dèabrasif nest pas inclut dans ce contrat et seras facturer comme suit : 130,000$ la tonne Deneigement des trottoires des aires comune sont inclut Est seras balayer apres chaque chute de neige (Brosse rotative) " [sic] [ 14 ] Mr Sorial explained that his management company did not supervise on a day-to-day basis the work of Da Silva, thought it would frequently have its own employees on site performing work who could report back to him at the office.

He also relied upon the six administrators to give feedback as to their level of satisfaction with the work as actually carried out. [ 15 ] The fact that Da Silva sent a bill dated January 31, 2012 (D-2), showing application of salt on the sidewalks on January 18, 25, 26 and 27, suggests that this work was in fact carried out but the evidence is not of very great probative value.

[ 16 ] Was the snow removal done effectively before the salt and sand was laid down or not? Was the mix of salt and sand appropriate for the temperature conditions?

Was the removal of snow done diligently enough to prevent a build up of ice during the freeze and thaw cycle that often occurs during a Montreal winter? [ 17 ] Mr Sorial testifies that he was not aware of any complaint about the quality of the work during this specific period, but there is no log or other record of any checking or quality control, in fact no monitoring at all of the work actually carried out. [ 18 ] The testimony of Mrs Thomas is clear; she was compelled to walk on a sidewalk area that was slippery because of accumulated ice.

Although she took care, she unfortunately slipped and fell with the result of sustaining some moderate injuries. [ 19 ] In the Court’s view, this evidence, as a whole, establishes that the fault of the Syndicate in failing to provide for the effective snow removal and spreading of abrasive on the common area where Mrs Thomas fell on January 26, 2012. [ 20 ] Though the Syndicate took steps to provide for snow removal, the evidence shows that these steps were not effective, not properly monitored and were inadequate.

The mere fact of contracting out the work does not, in and of itself, exonerate the Syndicate. [ 21 ] The photographs taken by Mrs Thomas a few weeks later are not conclusive as to the exact condition of the walkway on the day that she fell. They do however show the general state of neglect in that the snow was not effectively removed and it covers an area where, through the imprint of foot steps, it can be seen that there is an accumulation of ice.

No sign of any salt or sand is visible in the photos, which are nevertheless clear, having been taken during the late afternoon with sufficient light. [ 22 ] Although these photos are not direct proof of the state of the sidewalk the day of the event, they do indicate that snow removal on the sidewalks was probably not carried out in a very diligent manner around that time. It may be that no one complained, at least not in a manner that reached the ears of Mr Sorial.

But this type of negative evidence does not actually establish that the Syndicate was diligent; it can equally stand as proof that the Syndicate, through its administrators, was complacent in a condition of general neglect and therefore did not insist on better service. [ 23 ] The Syndicate is responsible for the care of the common areas not only to the individual co-owners but also to members of the public whom the co-owners may invite onto the premises.

QUANTUM [ 24 ] The evidence establishes that following elements of prejudice: 1) For reparable damage to Mrs Thomas’s glasses (P-3 and P-4) $ 500.00 2) Dry cleaning to remove the blood from her coat $ 50.00 3) Pharmacy $ 14.61 4) Homecare from January 27 to February 4, 2012 $ 620.00 [ 25 ] Mrs Thomas’s loss of income is more difficult to establish. [ 26 ] While Mrs Thomas could earn as much as $ 1,000.00 per two weeks, net, during exams, at other times of the year, she could earn next to nothing or small amounts such as $ 130.00 or $ 380.00 as appears from a list of her pay stubs (P-6).

[ 27 ] She called her employer after the accident to say that she would not be available for work and only about one month later, reported back that she was now available but she did not receive work because someone else had been hired in the meantime. She did not however look for other work. [ 28 ] In a case such as this one, where it is impossible for a Plaintiff to establish accurately a loss of income, the Court must arbitrate some amount which appears to be fair.

The Court is prepared to arbitrate an amount of $ 500.00 for lost income during that one-month period. [ 29 ] Finally, something should be awarded for the direct prejudice associated with the injury itself, both in terms of pain, suffering, aesthetic prejudice and the temporary incapacity to use her arm. [ 30 ] Happily for Mrs Thomas, these were not serious injuries but there was a significant degree of pain, discomfort and temporary disability as well as a persistent scar on her forehead that was unsightly for approximately one year. [ 31 ] Again, there being no scientific certainty to an assessment of this type of prejudice, the Court must arbitrate and, in the present matter an amount of $ 1,000.00 is sufficient. [ 32 ] The total of the Plaintiff’s award of damages is $ 2,684.61.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay to the Plaintiff the amount of $ 2,684.61, plus interest at the legal rate of 5% per annum and the additional indemnity provided for by

article 16.19 of the Civil code of Quebec , calculated from the demand of February 10, 2012; CONDEMNS the Defendant to pay judicial fees of $ 163.00 to the Plaintiff. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 29, 2014