Harrison v. Fraser Health Authority, 2024 BCSC 71

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Harrison v. Fraser Health Authority, 2024 BCSC 71 Date: 20240116 Docket: S232229 Registry: New Westminster Between: Hailey Harrison Plaintiff And Fraser Health Authority operating as Chilliwack General Hospital and JD’s Excavating Ltd. Defendants Before: The Honourable Justice Kirchner Reasons for Judgment Counsel for the Plaintiff: J.M. O’Quinn Counsel for the Defendants: J.C. MacDonald Place and Date of Hearing: Port Coquitlam, B.C. November 29, 2023 Place and Date of Judgment: New Westminster, B.C.

January 16, 2024 Table of Contents Introduction .. 3 Facts .. 3 The Slip and Fall 3 Snow Clearing Program .. 5 Implementation of the Snow Clearing Program on February 13, 2019 . 8 Legal Principles .. 9 Suitability for

Summary Trial 9 Duty of Care . 9 Analysis .. 11 Conclusion .. 15 Introduction [ 1 ] The defendant applies by way of

summary trial to dismiss the plaintiff’s claim. On February 13, 2019, the plaintiff, Hailey Harrison, slipped on snow or ice after getting out of her car in a parking lot on the Chilliwack General Hospital campus. She claims the defendants, Fraser Health Authority, which operates the hospital, and JD’s Excavating Ltd., which is the hospital’s snow-clearing contractor, were negligent in failing to adequality clear and de-ice the parking lot. [ 2 ] The defendants argue the hospital had a reasonable snow-clearing program in place which was followed by JD’s Excavating at

all material times. Thus, they say, both met the standard of care owed to Mr. Harrison. Ms. Harrison argues the case is not suitable for

summary trial disposition because there are material issues of fact that cannot be resolved without a trial. The defendants say any factual disputes are not of a nature that require a trial for resolution. [ 3 ] I note that the plaintiff did not submit an affidavit in response to the defendants’ evidence but instead relied on her own examination for discovery evidence. Counsel for the defendants confirmed at the outset of the hearing that she took no objection to this for the purposes of this application, even though a party is generally not entitled to rely on their own discovery evidence.

The application thus proceeded on the basis of that concession. Facts The Slip and Fall [ 4 ] On February 13, 2019, Ms. Harrison drove her friend and the friend’s son to the Health Services Building on the Chilliwack General Hospital campus for a routine immunization for the son. She was driving her Jeep Cherokee SUV. [ 5 ] She said there was snow on the ground that day but the sky was clear. She recalled it had snowed the night before as she was going to bed but it had stopped by morning. This evidence is in dispute. The defendants say it was snowing throughout the day on February 13, 2019.

While Jason Hall, the owner of JD’s Excavating, could not specifically recall if it was snowing that day, he does recall there was a five-day storm with snow starting and stopping over the course of those five days. As I discuss below, the amount of snow-clearing equipment deployed to the hospital campus that day and the volume of salt that was used suggest that snow fell that day. [ 6 ] There was no weather station in Chilliwack in February 2019 and so there is no historical weather data available for that location. The two closest stations were Abbotsford and Agassiz.

The data for Abbotsford shows that 14 cm of snow fell on February 10, 10 cm on February 11, 9 cm fell on February 12, and 6 cm on February 13. The data from Agassiz indicates no snow fell there during this whole period but temperatures were below zero. The most that can be taken from this data is that there was snowfall in the region but not all over the region. It does not confirm or disprove there was snow in Chilliwack or how much. [ 7 ] There is no evidence of the precise size of the Chilliwack Hospital campus.

It appears to take up at least two city blocks and is comprised of one relatively large hospital building and the smaller Health Services Building which was Ms. Harrison’s destination. The main hospital building is surrounded by nine parking lots plus an ambulance bay, a cul-de-sac at the main entrance, a loading dock, and several entrances. The Health Services Building is separated from the main hospital building by Menholm Road. A tenth parking lot on the hospital campus (“Lot 10”) is adjacent to the Health Services Building.

For the purposes of snow clearing, Lot 10 and the Health Services Building are considered to be part of the overall hospital campus. [ 8 ] Ms. Harrison entered Lot 10 and parked in a stall some 10 metres from the entrance to the Health Services Building. There were cars parked on both sides of her parking stall. She said there was snow covering the parking lot. [ 9 ] She got out of her car and walked around the back intending to help her friend’s son out of the rear passenger-side door. She said there was enough snow on the ground that it reached her ankle when she stepped down.

I infer from this that there was at least two or so inches of snow on the ground, assuming her recollection is accurate. [ 10 ] As Ms. Harrison walked past the rear of her car, she slipped on some snow or ice and fell, landing with all her weight on her left ankle. She was eventually helped up and back into her car by her friend and a Fraser Health worker who came by. Her friend then drove her the short distance to the emergency room at the hospital. [ 11 ] Ms. Harrison recalled the fall occurred sometime between 10:00 am and 12:00 noon.

According to a hospital record, she attended the emergency department at 12:20 so I infer the fall was probably between 11:30 and 12:00 noon. Snow Clearing Program [ 12 ] JD’s Excavating has had the contract to clear snow and ice at the Chilliwack Hospital for some 25 years. The contract applicable at the time of Ms. Harrison’s fall was for 2017-2018 season but it had been extended pursuant to a purchase order dated November 16, 2018. [ 13 ] JD’s Excavating had other snow-clearing contracts but Chilliwack Hospital was its top priority. JD’s owner, Mr.

Hall, said his motto when it came to the hospital was “when it snows, we goes”. He said a crew would mobilize towards the hospital at the first flake of snow and was on site right away to ensure snow does not pack down on the parking lots. A two-member crew was dedicated to the hospital and a JD’s Excavating truck was kept on-site at the hospital all winter. Other equipment was brought in as needed.

In a snow event, his crew was on site “pretty much 24/7 from start of snow till end of snow.” [ 14 ] JD’s obligations under the contract include the following: • ensure hospital driveways, fire lane accesses, parking lots, parkades as well as designated sidewalks, access lanes, stairways, entrances and exits are maintained in a safe condition for both vehicular and pedestrian traffic; • supply and mechanically spread de-icing rock salt or equivalent liquid at Contractor’s own discretion or upon instructions from the Plant Maintenance representative; and • begin plowing the site as soon as the snow reaches a depth of one inch, regardless of the time of day or night or the day of the week.

[ 15 ] The contract contains a “priority” list of areas for snow clearing. At the time, Lot 4, the ambulance entrance and the staff entrance had top priority. Lot 2, the main entrance, and the Emergency entrance were second in priority and other lots and entrances were listed as priority 3 through 5. The loading dock area is listed as priority 6. Lot 10 did not appear on the priority list at all at the time of the incident. It has since been included as priority level 5 in subsequent contracts. Mr.

Hall deposed that since Lot 10 was not on the priority list at all at the time, it was “the lowest priority and the last to be cleared”. [ 16 ] The contract also contains a clause that requires JD’s Excavating to return to parking lots during the day to plow vacant parking stalls but subject to an ambiguous and possibly erroneously-drafted condition: Contractor shall return during the day to plow vacant parking stalls, if a majority of the parking stalls are still occupied.

Contractor shall return the next day before 5am PST to plow as many stalls as possible. [ 17 ] It seems odd that the contractor would only be obligated to return to a lot to plow vacant parking stalls if the majority of those stalls were still occupied. It seems more likely that this clause was intended to contemplate circumstances where a lot could not be plowed because of the number of cars in it, in which case JD’s must return by 5:00 a.m. to next day to clear snow from as many stalls as possible.

On the other hand, it may be that the parties intended for JD’s to clear snow from a lot that was subject to relatively heavy use by the public as evidenced by the majority of the stalls being occupied. The defendants have not tendered any evidence to explain this clause, although Mr. Hall’s evidence would suggest that JD’s does not clear Lot 10 after it becomes occupied with cars. [ 18 ] Mr. Hall deposed that when snow is falling, JD’s crew circulates throughout the hospital campus all day continuously clearing lots and sidewalks in rotation until the snow stops falling.

He said his usual practice is also to get out the truck after a lot is cleared and salted to make sure it was not slippery. [ 19 ] Despite the fact that Lot 10 had no priority at the time of the incident, Mr. Hall deposed that it was always plowed and salted or sanded by 8:00 a.m. during a snow event. However, after that time it was difficult to plow the lot because it filled up with cars and the driving lanes are narrow. Mr. Hall explained this as follows: We always removed snow and salted or sanded the parking lot [#10] of the public health building by 8:00 am because the parking lot filled up quickly.

We always cleared and salted as close to 8:00 am as possible. Once that parking lot was full it was difficult to get a piece of snow removal equipment into the lot and there was a risk of damage to the cars, so the only equipment used after 8:00am was a small loader that could clear the drive lane areas. [Emphasis added] [ 20 ] He also addressed this in his discovery evidence: …it's hard enough to get a vehicle around there let alone a plow truck or a piece of equipment.

It gets a little bit -- you know, if you slide a little bit you hit the car or even the salt and sand spreading with the rock material, I mean, it just gets to be damage to the vehicles too, so you've just got to leave it, and hopefully the sand underneath is what provides some stability. [ 21 ] However, he later added that a small loader could move around through the driving lanes in Lot 10 even if the parking stalls were occupied: Q. Okay. You don't remember anyone going to that parking lot after that day and cleaning it up because you never really found out until the next day, right? A.

We would -- I mean, obviously we'd travel past there, and if we could make a loop in there it would be one loop with the small loader. I have a small loader. That's the only thing that can kind of fit in there safely without, you know, hitting the cars because it's pretty tight in there. So if we can we can do a loop around there, and that would probably be about it other than the sidewalks would be continuously done. [ 22 ] A small loader – the CAT 950F – was operating on site the day of Ms. Harrison’s fall. However, Mr.

Hall could not say if it had gone into Lot 10 to clear out snow between 8:00 a.m. and 12:00 noon. Implementation of the Snow Clearing Program on February 13, 2019 [ 23 ] Mr. Hall’s recollection of snow-clearing on February 13, 2019 is largely based on his review of the records that were prepared contemporaneously to a snow event. He said reviewing the records assisted in recalling events but his evidence of the period when the Ms.

Harrison fell is largely based on the records rather an independent memory. [ 24 ] As required by the contract, JD’s Excavating completed forms called Snow Removal & De-icing Activity Forms. These were completed on a daily basis during a snow or cold event. The forms for February 2019 show there was a five-day snow event from February 11, 2019 to February 15, 2019 requiring JD’s Excavating to be on site at Chilliwack General Hospital on a continuous basis. [ 25 ] According to the forms, on February 12, 2019, the day before Ms.

Harrison’s fall, JD’s Excavating operated a backhoe on site at the hospital from 8:00 a.m. to midnight, a salting truck from 2:00 p.m. to 6:30 p.m., and a CAT 950F loader from 1:00 a.m. to 3:00 a.m. It placed four yards of salt on the hospital campus that day. The form for February 13, 2019, the day of Ms.

Harrison’s fall, states that the backhoe was operating on-site for the full 24 hours, a plow truck was operating from 1:30 a.m. to 4:30 a.m., a salting truck was operating from 8:00 a.m. to 1:00 p.m., another truck was operating from 3:00 a.m. to 6:00 a.m., and a CAT 950F loader was operating from 8:00 a.m. to 10:00 a.m. [ 26 ] The form for February 13, 2019 also indicates that 16 yards of salt was laid down that day. Mr. Hall deposed that this is enough salt to cover the entire hospital campus three or four times over. He said continuous snowfall dilutes salt and sand making it ineffective

so it is necessary to continuously reapply it throughout the day during an ongoing snowfall. [27] While these records indicate substantial and active snow-clearing and snow management activity on the hospital campus on theday of Ms. Harrison’s fall, they do not provide information that is specific to each lot. Thus, there is no record that identifies when, howfrequently, or even if Lot 10 was cleared that day. Nor is there evidence as to how much (if any) of the 16 yards of salt was placed on Lot10 or if any salt was reapplied in the morning before Ms. Harrison’s fall. [28] Mr.

Hall was on the hospital campus that day in one of the trucks but he has no specific recollection of plowing Lot 10. He saidJD’s Excavating’s usual practice is to plow Lot 10 just before 8:00 a.m. After that, his evidence is unclear on what attention Lot 10would have received. As noted, his evidence suggests it probably was not cleared again before Ms. Harrison’s fall, although it is possibleto operate a smaller CAT in the driving lanes. [29] Ms. Harrison fell when walking behind her car. Her evidence does not explain how far she was behind her car.

Thus, it cannot bedetermined from her evidence whether she was immediately behind the car (where a plow might not have been able to reach if a car wasparked there) or if she was further out into the driving lane. However, her discovery evidence suggests that both areas were covered withsnow. Legal Principles Suitability for

Summary Trial [30] A case may be suitable for

summary trial disposition where the necessary facts can be found by the court and it would not beunjust give judgment even though there may be disputed issues of fact or law: Gichuru v. Pallai, 2013 BCCA 60 at para. 30; InspirationManagement Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202 at 211 (C.A.). Whereevidence given on a

summary trial application conflicts, the court is not necessarily precluded from deciding the case provided that theconflicts can be resolved with reference to other evidence, such as documents, discovery testimony, or undisputed facts. However, a courtcannot simply choose between one affidavit and another: Cory v. Cory, 2016 BCCA 409 at para. 10. Duty of Care [31] Ms. Harrison claims the defendants are liable under the Occupiers Liability Act, R.S.B.C. 1996, c. 337, s. 3(1) for, among otherthings, allowing snow and ice to accumulate in Lot 10 where they knew or ought to have known pedestrians would be walking.

Anoccupier’s duty under the Occupiers Liability Act is to protect others from an objectively unreasonable risk of harm: Tavra v. MetroVancouver Housing Corporation, 2020 BCSC 105. An occupier must take reasonable care in all the circumstances to ensure that personswho enter the premises will be reasonably safe. The standard of care is reasonableness, not perfection: Duddle v. Vernon (City), 2004BCCA 390, para. 22.

The court must therefore determine whether the winter maintenance system that Fraser Health had in place wasreasonable in the circumstances to protect persons who entered the hospital campus during this snow event and whether thatmaintenance system was followed on February 13, 2019. [32] In considering the scope and extent of the duty, it is important to consider the context of a winter snowstorm. In Brown v. BritishColumbia, (SCC), [1994] 1 S.C.R. 420, Cory J., writing for the majority, stated at p. 439: That duty to maintain would extend to the prevention of injury to users of the road by icy conditions.

However the Department is onlyresponsible for taking reasonable steps to prevent injury. Ice is a natural hazard of Canadian winters. It can form quickly andunexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would beprohibitively expensive. It can be expected that a Department of Highways will develop policies to cope with the hazards of ice. [33] In Perrett v.

Port Moody, (B.C.S.C), Satanove J. said at para. 21 that the failure of a defendant to keep aparking lot completely clear of snow does not necessarily mean that its system of winter maintenance was unreasonable. This will dependon factors that include budgetary restraints, the availability of qualified personnel and equipment, geographical location, time of year andprevailing weather conditions.

She went on to say: [22] Viewing the evidence in its totality, the plaintiff has not discharged the burden of proof upon her to prove, on a balance ofprobabilities, that the defendant breached its standard of care in the circumstances. The defendant adhered to its policy of ploughing,sanding and salting the parking lot. It carried out its operation early in the morning. The preponderance of evidence establishes that thesnow removal operator performed her task in her usual manner, which appears quite thorough. She then moved on to attend to the otherfive parking lots within the care of the defendant.

Her usual procedure was to return to each lot for further work if required and if timeallowed. It is likely that there was further snow fall between the time the operator worked on the Recreation Centre and the time whenshe was able to return to the parking lot. In the interim the plaintiff slipped and fell. It was an unfortunate accident but I cannot say it wasdue to any neglect on the part of the defendant to fulfill its policy of reasonable maintenance of the parking lot. [Emphasis added] [34] In Miller v.

Kamloops, 2003 BCSC 908, a case concerning the clearing of snow from a sidewalk, Blair J. observed that anoccupier cannot reasonably be expected to keep sidewalks completely clear of snow when it is falling throughout the day: [24] […] It is not reasonable to anticipate that the defendants would be able to keep the sidewalks completely clear when the snowfallwas continuing throughout the day as it did on February 8, 2001, but the arrangement providing for the clearing of the snow both duringand after it fell was a reasonable accommodation in the circumstances.

The arrangement while ensuring the removal of most of thehazard created by the ice and snow, could not be expected in the course of an ongoing snowfall to remove all the ice and snow and usersof the sidewalk must expect some hazards.

[Emphasis added] [ 35 ] In that case, Blair J. found the defendant had met the standard of care by shovelling the sidewalk twice in a 10-hour period and applying a de-icing agent after each shovel. [ 36 ] In Nabholtz v. Kimberley , 2002 BCSC 174 , Brooke J. observed that the presence of snow implies a risk of ice and a person assumes some amount of risk by venturing on foot into a snow-covered area: [13] […] A blanket of virgin snow must be seen as requiring particular care, mindful of the risk of ice beneath it. A walk in the snow is an activity which assumes some risk of a slip and a lesser risk of a fall.

Analysis [ 37 ] The defendants have led persuasive evidence of a reasonable snow-removal program and that a substantial crew was active on the hospital campus throughout February 13, 2019 during what appears to have been a snow event. Despite that, I have concluded that I am not able to make the necessary findings of fact to decide this case on a

summary basis, largely because there is a conflict in the evidence I cannot resolve as to what, if any, snow clearing was done on Lot 10 that day. [ 38 ] The defendants’ snow removal program as set out in the contract and described by Mr. Hall appears reasonable, although I make no determination on that point since that matter will be determined at trial. Counsel for Ms. Harrison argues that the program is not reasonable, or at least there is a triable issue about its reasonableness, given that it gives Lot 10 no priority. As I discuss later, counsel may be right about this. However, as Mr.

Hall’s evidence indicates, the lack of a stated priority only means that other areas of the hospital were considered to be a higher priority for plowing and Lot 10 was left to the end. It does not necessarily mean that Lot 10 was ignored or not plowed. Mr. Hall’s evidence is that it was “always” cleared by 8:00 a.m. Further, he said it was JD’s practice to clear it as close to 8:00 a.m. as possible, meaning that, if the usual practice was followed, it would have been cleared less than four hours before Ms.

Harrison’s fall. [ 39 ] However, I find there are conflicts in the evidence as to whether Lot 10 was in fact cleared by 8:00 a.m. on February 13, 2019. Thus, even if I were to find the snow removal program was reasonable, I am not able to say whether that program was carried out on the day of Ms. Harrison’s fall. [ 40 ] As I have said, Ms. Harrison’s evidence that the snow in Lot 10 reached her ankle suggests there was at least two or so inches of snow on the ground.

She said she saw this snow when she drove into the parking lot suggesting the two or so inches of snow was not confined to the stall she parked in but extended throughout the lot: Q. And did you fall – could you see snow or ice in the parking lot? A. I could see snow in the parking lot. I could not see if there was any ice no because the snow covered the ground. Q. And you could see snow when you pulled into that parking lot drive-in? A. Yes, I could. Q. Do you know how much snow was on the ground? A. Maybe a foot or two. Not very much. Q.

So when you stepped out of your vehicle in order to go around the back, were you stepping in a foot of snow? A. Maybe not exactly a foot of snow, but there was enough snow that it came up to about my ankle, and I couldn’t see the ground. [ 41 ] I take from this that when Ms. Harrison drove into the parking lot she could see it was covered in snow and she estimated it was deep enough to reach her ankle. If there was two or so inches of snow throughout the lot when she entered it, this raises a question of whether that snow accumulated on Lot 10 before or after 8:00 a.m. that morning. [ 42 ] Ms.

Harrison testified on discovery that it had not been snowing that morning and had not snowed since late the previous evening. If that is correct, it could only mean that Lot 10 had not been plowed at all on February 13, 2019, at least not before her fall. That would mean the snow clearing program was not implemented in the manner expected from JD’s usual practice. [ 43 ] However, the fact that JD’s had large amounts of equipment working on the hospital campus that morning suggests that Ms. Harrison’s recollection about the snowfall may be incorrect and that it was snowing through the morning.

On that basis, even if Ms. Harrison’s recollection of the accumulated snow in Lot 10 is correct, it may well have been plowed by 8:00 a.m. and the snow accumulated between then and 11:30 or so when Ms. Harrison entered the lot. [ 44 ] Regardless of whether it was or was not snowing that morning, there is still an issue as to whether Lot 10 was actually plowed before 8:00 a.m. because there is no evidence of how much snow fell in Chilliwack that day or that morning.

It may be that two or so inches of snow accumulated after 8:00 a.m., in which the reasoning in Perrett and Miller might be persuasive in resolving this case in the defendants’ favour. That is, even with regular plowing, snow can be expected to fall on a parking lot while a crew is rotating through other locations and an occupier cannot be expected to keep an area completely clear of snow during a snowfall event.

Further, people going out snowstorm must expect some risk. [ 45 ] On the other hand, if the snow had been sitting on Lot 10 all morning and had not been cleared before 8:00 a.m. in accordance with JD’s practice, that would appear to run afoul of the expected snow-clearing program, especially when it was known that many

people would be using that lot started around 8:00 a.m. [ 46 ] It must be remembered that Mr. Hall’s evidence is not that Lot 10 was cleared by 8:00 a.m. but rather that it would have been cleared by then based on the usual practice. Ms. Harrison cannot say whether it was cleared by 8:00 a.m. or not but her evidence is that there was some two inches of snow on the lot when she got there and it was not snowing in the morning. I am thus not able to determine if Lot 10 was cleared that day on the evidence before me. [ 47 ] This case is not unlike Waters v. CP Reit BC Properties Limited , 2021 BCSC 1886 where Justice Coval dismissed an application for judgment by

summary trial. There the plaintiff claimed she had slipped on ice in a grocery store parking lot. The defendant brought a

summary trial application leading evidence of its winter maintenance program, evidence that the lot had been plowed and de-iced the day before the plaintiff’s fall, and expert evidence of a climate scientist who said no snow fell and there were no freezing temperatures between the time of the snow removal/de-icing and the plaintiff’s fall. Thus, argued the defendant, there could not have been ice on the parking lot when the plaintiff fell. The plaintiff, however, maintained there was ice and that his how she fell.

Justice Coval considered the conflict in the evidence and said this at para. 55: [55] The defendants’ evidence may well demonstrate a reasonable winter maintenance system for the parking lot. In my view, however, I cannot find that their maintenance system was reasonably implemented on December 28 and 29, 2016 without assessing the credibility of the plaintiff’s witnesses about the extent of snow, ice and slippery surfaces at the time of Ms. Waters’ accident. If their version of events were accepted, it would appear that the defendants’ system might not have been properly implemented.

As said above, such credibility findings must await seeing the testimony of the plaintiff’s witnesses and those of the defendants who oppose them. [Emphasis added] [ 48 ] I find myself in the same position as Justice Coval. [ 49 ] I would add that if Lot 10 was not plowed before 8:00 a.m., this may bring into question whether its lack of priority was a reason for that. Given that Lot 10 was expected to fill up after 8:00 such that people would be using it throughout the day, the lack of priority may well be an issue going to the reasonableness of the program.

It may be significant that in subsequent contracts Lot 10 was given a priority above the loading dock area. The reasons for that change are not addressed in the record before me but may be relevant. Conclusion [ 50 ] For these reasons, I have concluded that I cannot decide the issue of liability on this

summary trial application and the application is dismissed. The plaintiff is awarded costs of this application in the cause. “Kirchner J.”