2016 QCCQ 8902, 2016 QCCQ 8902

Klett c. Intrawest, u.l.c. 2016 QCCQ 8902 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE TOWN OF ST-JÉRÔME Civil Division No: 715-32-000448-155 DATE: September 1 st , 2016 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ BARRY KLETT Plaintiff v.

INTRAWEST ULC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of 14 676 $ in compensation for the injuries that he has sustained as a result of an accident that occurred on March 6 th , 2014 while he was attending a “wine and cheese” event organised by Defendant in connection with the 75 th anniversary celebration of the Mont-Tremblant Ski Station. [ 2 ] More particularly, the accident occurred when the protection bar of a single seat chairlift (Chairlift), on which Plaintiff was invited to sit for the purpose of a souvenir picture, suddenly fell from its manually lifted upright position and hit said Plaintiff on the mouth. [ 3 ] Plaintiff alleges that the accident is the fault of Defendant who was the owner of the chairlift on which he was sitting when the accident occurred. [ 4 ] In the demand filed in Court, Plaintiff alleges that Defendant must be held responsible for the accident for the following reasons:

a) Defendant’s employees and representatives on the site did not inform him that the chairlift on which he was invited to sit was not safe or did not function as do present-day chairlifts.

b) Defendant had the legal obligation to make sure that the chairlift provided to its guests for the taking of pictures was secured and safe and it failed to do so. [ 5 ] The damages claimed by Plaintiff are detailed in his demand and total 14 676 $. [ 6 ] Defendant contests Plaintiff’s demand alleging, in substance, that :

a) The chairlift on which Plaintiff’s accident occurred had been installed to allow the guests of the “wine and cheese” event to be photographed while sitting on said chairlift.

b) The pictures were taken by Mr. Allen McEachern, a professional photographer hired by Defendant exclusively for this purpose.

c) The chairlift was examined by Defendant’s employees before and after its installation and before and after its use by the guests. After said examinations, it was declared to be safe by the said employees.

d) More particularly, when the chairlift was installed, Mr. Nicolas Escriva, acting on behalf of Defendant, examined it and made sure that it was safe for its intended use by Defendant’s guests.

e) During the event that took place on March 6 th , 2014, approximately 30 people including children sat on the chairlift. A majority of these guests lowered and lifted the protection bar of the chairlift without incident.

f) When Plaintiff sat on the chairlift, he did so with a glass of wine in one hand. While sitting, he decided to lower the protection bar.

g) The accident occurred when Plaintiff raised the protection bar above him in order to get off the chairlift. At this time, the bar came back down and hit him on the mouth. The chairlift was examined by Mr. Escriva after the accident and no mechanical deficiencies were

found by him during said examination. [ 7 ] In its contestation, Defendant reiterates that the chairlift was in good and safe working condition when the accident occurred alleging furthermore that the occurrence of the said accident was the result of Plaintiff’s faulty manoeuvre when he lifted the protection bar and did not make sure that it stayed in the upright position before trying to get off. [ 8 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following ones. [ 9 ] Plaintiff has been a usual skier of the Mont-Tremblant Ski Station having skied the mountain for the past 25 years. [ 10 ] Plaintiff was invited by Defendant to a “wine and cheese” event for the 75 th anniversary celebration of the Mount-Tremblant Ski Station.

This event took place on March 6 th , 2014. [ 11 ] Although he was an experienced skier, Plaintiff had never used, in the past, a chairlift of the kind installed by Defendant for the “wine and cheese” event. [ 12 ] According to Plaintiff, he was invited by Mr. Allan McEachern, Defendant’s photographer, to take a picture while sitting on the chairlift. [ 13 ] Plaintiff testified that Mr.

McEachern invited him to lower the protection bar of the chairlift to make the scene more realistic. [ 14 ] According to Plaintiff, his wife, Mireille Klett, sat on the chairlift before he did but she did not lower the protection bar. [ 15 ] Plaintiff testified that no particular instructions were given to him by Mr.

McEachern or any other representative of Defendant regarding the operation of the chairlift and its protection bar. [ 16 ] After the picture was taken, Plaintiff raised the protection bar of the chairlift in the same manner as he raises the protection bar of present-day chairlifts. [ 17 ] Plaintiff testified that he was expecting the protection bar to go fully upwards and remain in an upward position once lifted but, unfortunately for him, as he was rising to get out of the chairlift, the said protection bar fell back down and hit him on the mouth injuring his two front upper teeth. [ 18 ] Regarding the alleged mechanical or conceptual deficiency of Defendant’s chairlift, Plaintiff did not have it examined by a third party mechanic.

Consequently, apart from his testimony of this issue, no evidence was introduced in Court to establish that the chairlift was in any way defective on the day of the accident. [ 19 ] Mrs. Mireille Klett, Plaintiff’s wife testified in Court by telephone. She stated that she did not notice any other incident involving the use of the chairlift apart from the one involving Plaintiff. [ 20 ] In a letter written by Mrs. Klett and filed as evidence into the Court record, Mrs.

Klett reiterates, in substance, the testimony of Plaintiff in regard to the occurrence of the accident and in regard to the injuries sustained by him. [ 21 ] In support of its contestation, Defendant filed into the Court record, as evidence, the signed affidavit of Mr. Nicolas Escriva. [ 22 ] In this affidavit, Mr. Escriva states the following:

a) He is director of technical services employed by Diamond Resort International. In this capacity, he is responsible of the maintenance of Hotel Club Intrawest in Mont-Tremblant since 2001.

b) He has worked as an automobile mechanic from 1991 to 1993 and as a foreman responsible of construction and maintenance from 1992 to 1997.

c) For the past 15 years, he has specialized himself in the maintenance of hotels and buildings and for the past 26 years, he has practical experience in various domains regarding mechanics.

d) As director of technical services, Mr. Escriva declares that he supervises all the mechanical systems of Defendant’s hotel.

e) Regarding the installation of the chairlift, Mr. Escriva declares that he installed the said chairlift for the “wine and cheese” event organised by Defendant. This chairlift had been purchased a few years before and had been, before this purchase, previously used to bring skiers up to the top of ski mountains.

f) In Mr. Escriva’s opinion, the chair was in good working condition and it was safe for the use it was intended for at the “wine and cheese” event organised by Defendant.

g) The protection bar of the chairlift had two stop positions, one in the down position and one in the up position.

h) Before the installation of the chairlift for “wine and cheese” event, Mr. Escriva declares that he examined the chairlift and its protection bar. With his employees, he made sure that it functioned properly before allowing it to be used by Defendant’s guests.

i) According to Mr. Escriva, except for the incident involving Plaintiff, no other incident regarding the use of the chairlift was registered on the day of the accident.

j) On March 6 th , 2014, after being informed of Plaintiff’s accident, Mr. Escriva examined the chairlift and the protection bar and

found them to be in perfect and safe working condition. [ 23 ] Mr. Allen McEachern, photographer, whose services were retained by Defendant for the “wine and cheese” event, testified at the hearing. [ 24 ] Mr. McEachern declared that Defendant installed the chairlift to allow its guests to take pictures while sitting on it during the said event. [ 25 ] Regarding the use of the chairlift, Mr. Eachern testified that, except for the incident involving Plaintiff, no other incident occurred, either after or before. However, he did not see exactly how the accident involving Plaintiff occurred. Analysis and Decision [ 26 ] Pursuant to

article 1457 of the Civil Code of Québec , a person may only be held liable for another person’s injury where it is established by the evidence that he has failed to abide by the rules of conduct that lie upon him by law. More particularly,

article 1457 C.c.Q. 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. [ 27 ] In order for the Court to conclude that Defendant is responsible for his misfortune, Plaintiff must establish that Defendant committed a fault with respect to the maintenance of the chairlift and that there is a causal link between the fault and the injuries sustained by him. [ 28 ] In the case at bar, the burden of proof lies upon Plaintiff.

He must establish, by preponderance of the evidence, that Defendant failed to act diligently and prudently under the circumstances and that this omission is the cause of the accident. More particularly,

article 2803 C.c.Q. states the following : 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. [ 29 ] Fault occurs when a person fails to act as a reasonably prudent and diligent person would in similar circumstances. [ 30 ] The jurisprudence applicable to extra-contractual liability has established that prudence and diligence require that a person take measures necessary to prevent foreseeable accidents from happening.

In this regard, in the case of Ouellet c. Cloutier [1] , the Supreme Court of Canada wrote : The fact that it was possible that an accident might occur is not the criterion which should be used to determine whether there has been negligence or not. The law does not require a prudent man to foresee everything possible that might happen. Caution must be exercised against a danger if such danger is sufficiently probable so that it would be included in the category of contingencies normally to be foreseen.

To require more and contend that a prudent man must foresee any practical activity. [ 31 ] In the case of Brisson c. Gagnon [2] , the Court of Appeal stated the following : … Ce devoir de sécurité, souligne-t-elle, ne requiert pas de quelqu'un qu'il prévienne toutes les éventualités susceptibles de se produire dans un contexte donné, mais exige plutôt de prendre des précautions raisonnables pour éviter un préjudice raisonnablement prévisible dans les circonstances de faits, lesquelles comprennent la faculté de jugement de la victime. [ 32 ] Finally, in the case of Boucher c.

Canada (Procureur general ), the Superior Court wrote [3] : … La jurisprudence et la doctrine enseignent que le responsable d’une installation destine à être utilisée par le public a un devoir de sécurité envers les usagers de ces installations, qu’il doit prendre des mesures raisonnables pour empêcher les accidents prévisibles dans les circonstances mais non tous les accidents possibles. [ 33 ] This being said, considering the evidence adduced at trial, the Court is of the opinion that Plaintiff has not established that the chairlift, property of Defendant and used by him on the day of the accident and more particularly, the protection bar, were defective in any way.

In fact, the evidence is to the effect that the said chairlift and its protection bar were in good working condition and did not suffer from any lack of maintenance. [ 34 ] Defendant has established that it acted diligently and prudently, at all times, in connection with the installation and maintenance

of the chairlift. [35] Furthermore, Plaintiff has not established that Defendant had, in view of the type of chairlift used, any legal obligation to adviseits guests as to how to use the chairlift and the protection bar. [36] Considering the preceding, the Court comes to the conclusion that Plaintiff’s action must be dismissed without judicial costs inview of the circumstances of the case. FOR THE FOREGOING REASONS, THE COURT: MAINTAINS Defendant’s contestation ; DISMISSES Plaintiff’s demand, without judicial costs. __________________________________ ARMANDO AZNAR, J.C.Q.

Date of hearing: August 18th, 2016 [1] (SCC), [1947] SCR 521, 522. [2] 2007 QCCA 617 at para. 19 : [3] (C.S. 2000-06-06), SOQUIJ AZ-00026507, B.E. 2000BE-1100 at p. 3-4: