2021 QCCQ 6116, 2021 QCCQ 6116

Mitchell c. Zurich Insurance Company Ltd. 2021 QCCQ 6116 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BONAVENTURE TOWN OF NEW CARLISLE « Civil Division » N o : 105-32-700108-194 DATE : May 25, 2021 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.Q.C. ______________________________________________________________________ JODY MITCHELL Applicant vs.

ZURICH INSURANCE COMPANY LTD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The applicant Jody Mitchell claims from defendant Zurich Insurance Company Ltd (Zurich) the sum of $15,000 for damages sustained as a result of her fall, in the property belonging to their client Provigo grocery store (Provigo), located in Pointe-à-la-Croix. [ 2 ] Zurich is the insurance company of Provigo. They contest the claims and deny that they committed a fault. Furthermore, they allege that Mrs.

Mitchell has not provided documents demonstrating its losses or produced an expert report. [ 3 ] Mister Bernard Malouin act as a claim adjuster and responsible for this file with Zurich. Mister Réjean Lévesque, the owner of Provigo Pointe-à-la-Croix is present as well. Factual context [ 4 ] On December 3, 2016, Mrs. Mitchell went to Provigo. On the site, she slipped and fell on a patch of ice near the entranceway.

She was unconscious for a few minutes. [ 5 ] On December 2016 she went to work but after a few hours she was not feeling well and went to the hospital. [ 6 ] At the hospital, she was diagnosed with a concussion and put on medical leave until January 9, 2017. [ 7 ] After this incident, Mrs. Mitchell has difficulty completing full work weeks because of the symptoms related to her concussion and had help from her co-worker to complete her normal tasks. [ 8 ] Mrs. Mitchell had to cut back significantly her involvement with her children’s activities and cannot anymore do her usual physical activities.

QUESTIONS IN DISPUTE [ 9 ] Did Provigo commit a fault in the maintenance of the entranceway where the applicant fell, thus engaging their civil liability? [ 10 ] In the affirmative , what are the damages sustained by the applicant? ANALYSIS AND DECISION [ 11 ] The applicant alleges that Provigo committed a fault by failing to adequately maintain its premises in a reasonably safe condition. The latter did not sufficiently, if at all, salt the entranceway leading to its store. Her claims include the following damages: pecuniary damages, serious pain, stress, inconveniences as well as loss of employment and life.

The defendant pleads that they were diligent in maintaining the premises secure. They took the necessary measures to avoid the presence of ice, to ensure the safety of its customers. [ 12 ] In civil matters; the burden of proof rests on the shoulders of the applicant according to the principles of the simple preponderance. They must show that the disputed fact is not only possible, but probable. The probability is not only proven by direct

evidence, but also by the circumstances and inferences that are reasonably possible to draw from them [1] . [ 13 ] The general regime of extra-contractual liability to which the parties to this proceeding are subject is defined in

section 1457 of the Civil code of Québec which states : 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, omission or fault of another person or by the act of things in his custody . [ 14 ] Thus, to succeed, Mrs.

Mitchell must convince the Court, by a preponderance of the evidence, that Provigo committed a fault in the maintenance of their property, which would be at the origin of its fall and the damages which result from it. [ 15 ] In light of these teachings, the Court answers the questions raised by the litigation as follows: • Did Provigo commit a fault in the maintenance of the entranceway where the applicant fell, thus engaging their civil liability? [ 16 ] The evidence at the hearing showed that Mrs. Mitchell often goes to this grocery store to make purchases.

On the day of the event, she went to the store around 9:00 a.m. to buy some items. It was a sunny day, and she was wearing winter boots. She parks her car in the parking lot near the store and goes to its entrance, skirting the building. She slips on black ice about 5 feet from the entrance. She was unconscious about 10 minutes and even lost her glasses. Afterwards, she entered the store and informed an employee of her accident. She then made her purchases and left. [ 17 ] She stayed in bed all weekend and was unable to participate in the activities of her children, aged 12 and 14, respectively.

On Monday, she goes to work but does not feel well and goes to the emergency room at the hospital. She is put on sick leave and loses about 30 to 40 days of work. She underwent other medical examinations. Since the incident, her quality of life has been affected. [ 18 ] She took pictures of the location of the accident. She adds that after the event cement blocks were placed preventing people from passing through. [ 19 ] Madam Brigitte Kenny works for Provigo, and she confirms that she met Mrs. Mitchell after she slipped in the entranceway.

After their discussions, the latter made her purchases and left the premises. [ 20 ] Mister Scott Lévesque testifies as well for Provigo. He is the bakery’s manager. He was present on December 3, 2016, when the event occurs. He started his shift at 7:00 a.m. He is the one who shovelled the Provigo’s entrance, and thirty minutes before the store’s opening, he spread two pockets of salt in front of the entrance, including the place where the fall of Mrs. Mitchell took place. [ 21 ] Provigo demonstrated that they maintained the entrance way in a diligent and safe manner.

They spread salt that day, including once shortly before Ms. Mitchell fell. Furthermore, the latter adds during her testimony that the parking lot was clean except that black pitch that she never saw. In the circumstances, the Court finds that the applicant has not presented a preponderant evidence to conclude the fault of Provigo. [ 22 ] Since the proof has not been given that Provigo failed in her obligations, or that she was not diligent in maintaining the spaces where the public is invited to circulate, the applicant’s action must be dismissed. Sadly, Mrs.

Mitchell was the victim of an unfortunate accident. [ 23 ] In the circumstances, there is no need to rule on the damages claimed by Mrs. Mitchell. [ 24 ] Considering the particular facts of this case, each party will assume their costs. FOR THESE REASONS, THE COURT: [ 25 ] DISMISSES the applicant’s action, each party assumes its costs. __________________________________ CELESTINA ALMEIDA, J.C.Q.

Date of hearing: March 16, 2021