2013 QCCQ 11581, 2013 QCCQ 11581

Normandeau c. Syndicat des copropriétaires Les Villas Inverness 2013 QCCQ 11581 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No: 455-32-003738-126 DATE: October 4, 2013 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ DIANE NORMANDEAU Plaintiff v. SYNDICAT DES COPROPRIÉTAIRES LES VILLAS INVERNESS and T.B.

FARMS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is claiming $7000 in damages from the Syndicat des copropriétaires les villas Inverness (the "syndicate" or the "syndicate of co-owners"), and T.B.

Farms, a snow removal contractor, subsequent to a fall she suffered on March 9, 2009. [ 2 ] Although the defendants also contest the amount claimed, their main argument is that they did not commit any fault incurring liability. [ 3 ] On March 9, 2009, around 9:15 a.m., the plaintiff Normandeau was headed along a private road on the syndicate's property toward an area where the complex's recycling container was located.

According to testimony, it is a distance of 500 to 1000 feet, perhaps further. [ 4 ] As is probably typical in that region at that time of the year, the temperature could be described as spring-like, meaning that it was several degrees Celsius during the day, maybe five, and froze, particularly at night, perhaps dropping to minus five. [ 5 ] Reportedly there was only a very slight accumulation of snow the preceding day. Certainly less than five cm. In any event, there was also snow on the ground.

Undoubtedly the snow melted slightly during the day, possibly creating several puddles of water, then froze at night, to re-thaw as the morning advanced and the temperature rose. [ 6 ] In the specific case of March 9, it is not that clear whether the temperature was rising or falling during the day, but the fact remains that no radical fluctuation occurred. [ 7 ] Therefore, the plaintiff Normandeau, who was wearing suitable footwear, was walking along the road to access the recycling container, then slipped on a patch of ice covered by a thin layer of snow.

She fractured a wrist when she fell. [ 8 ] She is claiming $7000, alleging loss of income and various expenses incurred. She is an immigration consultant and, as a self- employed worker, must meet with clients, travel and, in particular, use a computer keyboard. However, her right wrist (she is right- handed) was fractured, and was immobilized for six weeks.

As well, her vehicle has a manual transmission, which resulted in serious problems due to her injury. [ 9 ] In defence, both the syndicate of co-owners and the contractor responsible for snow removal described the situation. [ 10 ] The overall area on which the condominiums are built is very vast, approximately one million square feet. There are eight entrances to the parking areas from Route 215. There are several parking areas, as well as paths and private roads, including the road in question, where snow removal is required. At the time, T.B.

Farms had had the snow removal contract for the large surfaces for several years, and was to apply abrasives [TRANSLATION] "as needed". All agreed that, in the circumstances, the term "as needed" referred to specific requests from the condominium manager. The application of the abrasives was then invoiced separately and charged extra. [ 11 ] One other person, this time an employee of the condominiums, Louis Légaré, was hired to do the smaller scale work. He was to remove snow from the pedestrian walkways, the steps and the stairways.

If necessary, he also applied abrasives along with Denis Marsolais, the manager at the time, in addition to what T.B. Farms occasionally did. [ 12 ] The evidence is clear that both T.B. Farms as well as Louis Légaré and Denis Marsolais did meticulous work, with sufficient and suitable equipment, and that snow removal and the absence of dangerous surfaces were priorities for the persons involved.

Moreover, there was very little criticism of their work over the years. [ 13 ] Given the scope of the work, and considering the area involved, the climate, the region where the condominium is located and the time of year, the work done appears to be beyond reproach. ANALYSIS AND DECISION [ 14 ] The issue before the Court is one that requires an understanding of the rules of civil liability.

Articles 1457 et seq. of the Civil Code of Québec define those, but it is useful to recall that, stated differently, as regards what is relevant here, those rules are the following: for a person to incur civil liability, the claimant must prove three things: a fault, damage and a causal link between that fault and the damage. In other words, it is the fault that must be the cause of the damage. [ 15 ] In this case, it is undeniable that Diane Normandeau suffered damage. What value to attribute to that damage is another question. And did the persons being sued, the syndicate of co-owners and T.D.

Farms, commit a fault? [ 16 ] The occurrence of a fall, even on an icy surface, does not create a presumption of fault. The Court of Appeal of Québec rendered a very recent ruling that is highly relevant to the issue at hand. It is the matter of Castro v. 4258649 Canada Inc , 2013 QCCA 997 . The quote bears repeating: [TRANSLATION] [ 10] On the one hand, the judge did not err as regards the burden of proof. The reversal of the burden that the appellant claims does not exist and no legal presumption arises from the mere presence of ice in a parking lot.

It has long been established that liability of an owner in such matters can result only from a fault committed by the owner or its agents. It is up to the plaintiff to prove a causal link between the fault and the accident that occurred. [5] That proof, as jurisprudence reminds us, is not easy to demonstrate in a context such as that of the Québec winter. [ 17 ] The principles set forth in that decision apply fully here. The obligation of the person removing the snow, like that of the syndicate, is not that of the plaintiff's insurer.

Their obligation is simply to take all reasonable means to prevent persons having access to the property from falling. [ 18 ] The evidence that those steps were taken and put into practice is convincing. [ 19 ] The plaintiff's fall was an unfortunate accident, which had very regrettable consequences for her. But the defendants did not commit any fault. THEREFORE, THE COURT: [ 20 ] DISMISSES the motion. [ 21 ] THE WHOLE WITH COSTS. __________________________________ Serge Champoux, J.C.Q. Date of hearing: September 3, 2013