Shane v., 2012 NSSC 327

SUPREME COURT OF NOVA SCOTIA Citation: Shane v. 3104854 Nova Scotia Ltd., 2012 NSSC 327 Date:

(20120917) Docket: Hfx 315268 Registry: Halifax Between: Shirley Anne Shane Plaintiff v. 3104854 Nova Scotia Limited Defendant Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 12, 13, and 14, 2012, in Halifax, Nova Scotia Counsel: Michael Dull and Mark Raftus, for the plaintiff Joshua Martin and Tara Miller for the defendant By the Court : Introduction [ 1 ] The plaintiff, Shirley Anne Shane, claims damages for injuries she alleges she sustained by falling on a sidewalk on Hollis Street in Halifax on January 7, 2008.

She claims that she fell on a piece of jagged ice on the sidewalk adjacent to a parking lot located on the defendant’s property. Ms. Shane relies on the Occupiers’ Liability Act, S.N.S. 1996, c. 27 . Background [ 2 ] Ms. Shane testified that on the morning of January 7, 2008, she was walking to work, heading north along Hollis Street, when she slipped on the sidewalk and landed on her back. She said she fell adjacent to the parking lot entrance. She said she did not see ice, but that she felt cold from the ground.

A colleague, Jason Salis, came to her assistance, but did not remain at the scene once emergency personnel arrived. Ms. Shane said that she was wearing winter footwear which was in good condition. She testified that she had walked on the same stretch of the sidewalk regularly over several years, and there was nothing remarkable about that day.

[ 3 ] Jason Salis, who worked at the same company as Ms. Shane, testified that on the morning of her fall, he was walking to his office from his parking garage, which was the same one that Ms. Shane had exited. He noticed that the sidewalk on the westerly side of Hollis Street was clear of snow and ice, up to where he saw Ms. Shane lying on the sidewalk. In that area, he saw a

section of sidewalk covered with rough, jagged ice. The area immediately to the south was clear of snow and ice. Immediately to the north of the area where he noticed the icy surface, he observed a film of black ice covering the sidewalk. [ 4 ] Jason Salis said he had walked this sidewalk on many occasions and had observed that the sidewalk in the area where Ms. Shane fell was frequently covered with snow or ice, similar to that which was present on the morning of January 7, 2008. He had formed the habit of crossing the street in order to avoid the area.

He said he had not reported the ice to the defendant, the city, or anyone else. He said he had not discussed the circumstances of Ms. Shane’s fall with her, nor had he discussed his evidence, although he had provided an affidavit in support of an earlier motion in the proceeding. The affidavit contains an error as to the date of the fall, which has no bearing on any finding I may make with respect to credibility or reliability. [ 5 ] The parking lot adjacent to the sidewalk where the plaintiff fell is at a higher elevation than the sidewalk.

As a result, the plaintiff submits, any thawing of ice or snow on the parking lot would cause water to run down from the parking lot onto the sidewalk and, depending on the condition of the sidewalk, to remain on the sidewalk or continue flowing onto the street.

It was admitted as fact that Halifax Regional Municipality was responsible for cleaning the sidewalk at the relevant time, pursuant to HRM By-law S-300. [ 6 ] Kevin Charles Nelson, an employee of the defendant, confirmed that the defendant owns three parcels of land in Halifax, including the parking lot on Hollis Street, which is one of several lots neighbouring a building known as the Blois Nickerson building. The lot in question is known as the small parking lot. It was owned by the defendant for four or five years prior to Ms. Shane’s fall.

Although the company has many other properties, priority was given to the small parking lot and other parking lots on Hollis Street that were used by other parties. [ 7 ] Mr. Nelson said he inspected the parking lots on weekends. He confirmed that Philip White, who had been employed by the company since 2004 or 2005, was responsible for the snow and ice removal. Mr. White was required to remove the snow and ice down to the bare ground. [ 8 ] Mr. Nelson said the company was required to maintain the sidewalk until this duty was assumed by HRM. He said he had never observed ice buildup on the

section of the sidewalk immediately adjacent to the parking lot, nor had he seen any quantity of water running from the parking lot to the sidewalk. Given his responsibility for maintenance of the parking lot, he would have received any complaints from users, but no one complained to him about snow or ice on the sidewalk. Although he was not on duty every weekend, Mr. Nelson said he would visit the parking lots every second weekend in order to confirm the reports he received from people under his direction.

He stated on discovery that under the right conditions snow could melt on the parking lot and travel to the sidewalk, but he could not say what those conditions would be. Mr. Nelson had no explanation for why this particular

section had pooled ice. [ 9 ] Philip White testified on behalf of the defendant. He was the employee responsible for maintaining the parking lots owned by the defendant, including the lot that is relevant to this litigation, which he maintained seven days per week. Mr. White was required by his employer to prepare daily timesheets, from which his supervisor prepared monthly summaries. [ 10 ] On the day of the plaintiff’s fall, Mr. White testified, he likely left home around 6:30 AM. He did not specifically recall that day, but his notes indicated that he did not plow.

He customarily arrived at the lot before any vehicles were parked there. If vehicles had already parked on the lot, he would salt by hand. He said he had been at the parking lot early in the morning on January 7 and had salted it in its entirety, there being no snow to remove. [ 11 ] Mr. White said that if he expected snow the following day he would lay salt, which would make it easier to plow. He had not made any observations about water migrating from the lot to the sidewalk. He stated that depending on the extent of the frost in the ground, and water on the lots might migrate into the ground.

He agreed that there was some asphalt on a portion of the parking lot and this would militate against drainage to the ground. Mr. White said that if there had been a thaw the day before and it got cold at night, he would check the lot again and apply salt on any ice which might have formed. [ 12 ] Mr. White confirmed that there had been no snowfall on January 7 or 8. On January 6 there had been 0.6 mm of rain. According to his records for the week ending January 12, he had applied salt on January 7 and 11.

The lot had been plowed on January 2, after snowfall over the previous few days, and salted on January 1-4 (inclusive) and January 7.

[ 13 ] Mr. White described his protocol in cleaning the snow and applying salt or sand. He operated a half-ton truck with an attached snowplow and rotary salter on the back of the truck. The snowplow had a 7.5 foot blade. The Hollis Street lot required about three 20 kg bags of salt. Mr. White’s procedure involved pushing snow from the Hollis Street side towards the back of the parking lot. He would do up to three passes, and then push the snow from the north side of the lot towards the south and west, angling the blade to push the snow towards the westerly limit of the lot.

When he finished plowing, he would apply salt with the spreader. He would start from the most southerly point of the parking lot, adjacent to sidewalk, and spread the salt to a point about 20 feet from the northerly point of the lot. He would then do two to three more passes, gradually using up the salt. The salt would be spread from east to west, finishing at the most westerly portion of the parking lot. He would then turn along the northern edge of the parking lot and exit onto Hollis Street. Specifically, Mr. White stated the following about the manner in which he cleaned the lot: A.

So the first two stripes would be from Hollis straight in. In other words, you push the snow straight back so you don’t have a build up close to the fence itself. Q. Okay? A. Because that actually is somebody’s parking lot. … Q. Okay. So you arrive on site, and talk us through, you did it a little, but talk us through what your routine is in the small parking lot with clearing the snow? A. Like I say, I back out onto Hollis Street and you push the snow directly back off the lot itself. Q. Yes? A. And you do that on two or three strips so that the entrance is open and you have room to maneuver in the lot. Q. Okay?

A. Next, I would go down and where the sidewalk is, the first strip would be you’d angle the blade so it’s pushing the snow to the back and the first strip that I do would be clearing probably half of the sidewalk itself, if the City hasn’t already done it. Because usually when the City would come in, they may have a build-up of snow on either side of where they’re pushing. Q. Okay? A. So I have to get rid of that otherwise it could do damage to vehicles. Q. So you remove some of the snow that’s left on the sidewalk by HRM? A. Yep. Q. Okay. And where do you remove it? A. You keep pushing gradually back.

In other words, you do one strip along there and back up and do another angle where the snow is gradually being pushed back off the lot itself.

Q. Okay? A. Because of the size of the lot, cars have to be able to back in plus anyone coming out has to be able to pull in front of other cars so they’re not driving on the sidewalk. [ 14 ] Mr. White said that during the initial spreading, some of the salt from the rotary spreader would find its way onto the sidewalk, but not to the point of spreading salt on the area of sidewalk adjacent to the entrance to the parking lot, given the configuration of the spreader on the truck. As such, he testified, he did not apply salt to the area where the plaintiff fell.

It was the responsibility of HRM to salt that area of the sidewalk. [ 15 ] Mr. White stated that during the time he worked for the defendant he relied on the weather forecast and weather history from Shearwater, rather than the Halifax International Airport, as the latter had different weather patterns from the city. By contrast, he found the Shearwater forecasts to be reliable. (A Shearwater weather report was admitted into evidence.) The Environment Canada Daily Data Report for January 2008 was in evidence.

While the day-to-day weather reports show periods of temperature above and below the freezing point in the days leading up to the plaintiff’s fall, the evidence does not allow an inference that there was, at any point, sufficient melting of snow or ice from the parking lot to cause a run-off of water onto the sidewalk. Voir Dire [ 16 ] Victor Lewin, a paralegal in the office of the plaintiff’s counsel, performed a test by emptying 45 litres of water onto the parking lot. A video was admitted the purposes of the voir dire. The water was poured out slowly, and migrated from the parking lot onto the sidewalk.

Plaintiff’s counsel suggested that on the days before her fall, snow and ice had melted and flowed down from the parking lot. Counsel also submitted that the video established that the flowing water did not stop at the boundary between the parking lot and the sidewalk, creating the buildup of jagged ice. The plaintiff submits that this is circumstantial evidence leading to the conclusion that the escaping water from the parking lot created the jagged ice surface. [ 17 ] The defendant argued against admission of the video, while agreeing that it had some relevance.

The defendant pointed out that running water could freeze at different temperatures, and that there was no evidence to establish the temperature at the relevant time. Nor is there any evidence of any snow buildup on the parking lot, evidence that snow from the area had migrated to the sidewalk or evidence that there was sufficient snow to reach the sidewalk to refreeze. [ 18 ] At the conclusion of argument on the voir dire, I admitted the evidence for the limited purpose of showing that water flows downhill. It was agreed that the evidence on the voir dire could be treated as evidence in the trial proper.

Findings of Fact [ 19 ] I make the following findings of fact:

(1) Ms. Shane slipped and fell on January 7, 2008, on a sidewalk on Hollis Street in Halifax;

(2) There was no evidence of water running from the parking lot onto the sidewalk in the days immediately prior to January 7, 2008;

(3) Ms. Shane’s slip and fall on January 7, 2008, was caused by slipping on jagged and rough ice on the sidewalk adjacent to the entrance to the defendant’s parking lot.

(4) Ms. Shane did not see any ice on the sidewalk where she fell;

(5) On January 7, 2008, the portion of the sidewalk immediately to the south of the entrance to the parking lot was clear of snow and ice, and the portion immediately to the north had a covering of black ice;

(6) On January 7, 2008, the defendant’s employee, following regular procedure, applied salt to the parking lot;

(7) The salting procedure included the entire parking lot but not the portion of the sidewalk adjacent to the entrance, where the plaintiff fell;

(8) The defendant had stopped salting the sidewalk where the plaintiff fell after Halifax Regional Municipality assumed responsibility for the maintenance and cleaning of the sidewalk, including snow and ice removal and salting, pursuant to By-law S-300 in 2006;

(9) There was a snowfall on January 2, 2008, and the parking lot was plowed and salted that day;

(10) There was no snowfall on January 3, 4, 5, 6 or 7, 2008;

(11) The parking lot was at a higher elevation than the adjacent sidewalk. Law. [20] This proceeding engages the Occupiers Liability Act, S.N.S. 1996, c. 27, which is a codification of the common law. The falldid not occur on the defendant’s property, but on a municipal sidewalk adjacent to it. Absent special circumstances, the owner oroccupier of promises abutting a sidewalk does not have a duty of care to pedestrians: Bowden v. Withrow’s Pharmacy Halifax (1999)Ltd., 2008 NSSC 252, at para. 43.

There are two exceptions to this principle, which Beveridge J. (as he then was) discussed in Bowden: [51] In Bongiardina [Bongiardina v. York (Regional Municipality)(2000), (ON CA), 49 O.R. (3d) 641, 2000 O.J. No.2751 (C.A.)], MacPherson J.A. noted there were two exceptions to the general principle that the law does not recognize a duty on aproperty owner.

First, an owner may be deemed in law to be an occupier if it assumes control of that property…. [52] The second exception is that an owner owes a duty to ensure that conditions or activities on his or her property do not leave theproperty and cause injury to others. This was illustrated in Brazzoni v. Timmons (City), [1992] O.J.

No. 254 where the court held thatthe bank was liable allowing water from melting snow on its roof to accumulate, run across the sidewalk and create a dangerous situationthat it knew or ought to have known could cause injury to pedestrians using the sidewalk. [21] The manner in which an occupier assumes control of the premises is contemplated in the definition of “occupier” in s. 2 of theAct, which provides that an occupier may be a person in physical possession of the premises (s. 2(a)(i)) or “a person who hasresponsibility for, and control over, the condition of premises, the activities conducted on the premises or the persons allowed to enterthe premises” (s. 2(a)(ii)).

In this instance, the defendant was not in physical possession of the sidewalk. The defendant was notresponsible for cleaning and salting the sidewalk. Maintenance of the sidewalk at this location was assumed by Halifax RegionalMunicipality.

This leaves the issue of whether, as owner of the adjacent property, the defendant allowed conditions or activities from itsproperty to leave the property, causing injury to others. [22] In the Notice of Action, the plaintiff alleges that the negligence of the defendant included (and I paraphrase) (1) failure toensure that the sidewalk was properly maintained; (2) failure to take effective actions to ensure the sidewalk would be clear of icebuildup; (3) failure to take action where it was apparent that the sidewalk was a hazard and in need of maintenance; (4) failure to haveproper procedures installed to ensure that the sidewalk was inspected and/or supervised on a regular basis; (5) creating and/or allowing ahazard to exist when they knew or ought to have known that doing so would foreseeably cause injury; (6) general negligence in themaintenance and supervision of the area; (7) failure to clear the ice in an appropriate manner, allowing passage around the object ofinherent danger; and, (8) such further negligence as may appear from the evidence. [23] The plaintiff claims that I should draw an inference in her favour.

The plaintiff cites Parkway Enterprises Ltd. v. ZurichInsurance Co. (1999), (NL SC), 175 Nfld. & P.E.I.R. 281, 1999 Carswell Nfld 153 (Nfld. C.A.), application forleave to appeal to S.CC. dismissed, 194 Nfld. & P.E.I.R. 180 (note), where Cameron J.A., concurring in the result, said, at para. 160: Osler J. in Affeldt v. B.D. Wait Co. (January 7, 1980), Osler J. (Ont.

S.C.) said at para. [43]: The rule in Hodges case, or what is left of that rule, has no application in a civil case and that rule does not preclude a finding in favour ofone of these causes simply because other possible sets of circumstances suggest other causes. If authority for such a proposition isneeded, see Bruce v. Bruce and Bratty, (ON CA), [1947] O.R. 688 per Hope J.A. at p. 692.

After discussing the rule inits application to a criminal case, the learned judge goes on to analyze the process to be applied in a civil case as follows: If, in the latter, a court or jury, after arriving by fair inference at the conclusion, also concludes that the circumstances are capable of some other reasonable solution, then the court or jury is called upon to exercise a guarded discretion, such as would be exercised by a reasonable and just man, and come to a conclusion as to which of the two or more

rational conclusions, to which the circumstantial evidence leads, is more probable in the circumstances of this case, that is, to apply the rule in civil cases as set out in Cooper v. Slade (1858), 6 H.L. Cas. 746, 10 E.R. 1488 , namely that a mere preponderance of probability may constitute sufficient grounds for a verdict. [24] The plaintiff maintains that, in dismissing the nonsuit motion, I found that there was some prima facie evidence that supportingthe claim, and that the defendants have not brought forward any additional evidence. In Fontaine v.

British Colombia (OfficialAdministrator), (SCC), [1998] 1 S.C.R. 424, the Supreme Court of Canada held that that the principle of res ipsaloquitur – the thing speaks for itself – should no longer be considered a live doctrine. Major J. said, for the court, at para. 27: It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component innegligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence.

That evidence is more sensiblydealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether theplaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has doneso, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed. [25] I am not satisfied that it follows from the dismissal of the nonsuit that the plaintiff must succeed.

Any inference of negligencethat could be drawn from the plaintiff’s evidence would be (like that in Fontaine) a modest one (Fontaine at para. 33). As Major J. noted,whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case” (Fontaine at para. 35.) Aconsiderable portion of the defendant’s evidence consisted of evidence of the procedures followed by the defendant’s staff in monitoringthe state of the lot and in clearing and salting it. This was supplemented by evidence, drawn from the defendant’s records, of the cleaningactivities done on the lot at the relevant time.

There was also evidence that the defendant’s staff operated on the understanding that thesidewalk was cleaned by the Municipality. Further, the evidence did not establish that there was any flow of water from the parking lotonto the sidewalk in the days immediately prior to the plaintiff’s accident. I am also not satisfied that the defendant could reasonablyforesee that it would be held liable for the condition of the sidewalk, given that this duty belonged to the Municipality.

Conclusion [26] I cannot conclude that the defendant allowed anything to escape from its property so as to cause the plaintiff to slip and fall.Moreover, while the plaintiff slipped and fell on ice on the sidewalk, it does not automatically follow that the defendant was negligent incleaning the parking lot. I conclude that the evidence advanced by the defendant displaces any inference of negligence that would arisefrom the fact of the plaintiff’s accident. [27] If the parties are unable to agree on costs, they will have until October 15, 2012 to file written submissions. LeBlanc, J.