Recently, the Ontario Court of Appeal considered a landlord’s winter maintenance obligations in an action arising out of a tenant’s slip and fall in a parking lot in Cannon v. Cemcor Apartments Inc., 2017 ONCA 378.
Under its lease with the tenant, the landlord, Cemcor Apartments Inc. (“Cemcor”), was responsible for maintaining the parking lot. In order to discharge that responsibility, Cemcor entered into a contract with a winter maintenance contractor to clear snow and ice from the lot. It was agreed by the parties that Cemcor owed its tenant a duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 to take such care as in all of the circumstances of the case was reasonable to ensure that the tenant was “reasonably safe while on the premises.”
At trial, the judge dismissed the tenant’s action by focussing on two factual issues:
- the terms of the winter maintenance program Cemcor had in place to maintain the parking lot; and
- the actual conditions of the parking lot when the tenant slipped and fell.
In dismissing the action, the trial judge was mindful that Cemcor hired an experienced and conscientious snow removal contractor that was instructed to clear laneways when snow accumulated to a depth of approximately five centimeters and to sand as required. The trial judge was also mindful of the fact that Cemcor employed an experienced, onsite superintendent who constantly monitored the condition of the parking lot.
The trial judge went on to quote various well-known principles often applied in occupiers’ liability cases, such as the notions that “occupiers are not insurers”, “a winter maintenance system and its implementation does not need to be foolproof”, and the “duty that is imposed upon the defendant does not extend to the removal of every possible danger” or “require the defendant to maintain a constant surveillance or lookout for potential danger.”
Applying such principles to the facts at hand, the trial judge concluded that given the realities and conditions expected in northern Ontario in the winter, Cemcor had a reasonable winter maintenance program in place at the time of its tenant’s fall.
On appeal, the tenant argued that the trial judge erred in finding that Cemcor followed its winter maintenance policy on the day of the accident. Specifically, he argued that under the terms of Cemcor’s winter maintenance policy, the amount of snow on the ground on the day of the accident required the entire parking lot to be cleared of snow, whereas only a partial clearing had been done.
The Court of Appeal noted that in considering whether the entire lot ought to have been plowed based on Cemcor’s winter maintenance policy, the trial judge focused on the actual conditions in the parking lot at the time of the accident as described by various witnesses, as opposed to weather records that were taken at a location 20-25 km away from the accident scene. The Court of Appeal held that it was open to the trial judge to treat firsthand evidence from witnesses in relation to the actual condition of the parking lot as more probative of the condition of the lot than the statistical information from Environment Canada. As such, it was open for the trial judge to conclude that the parking lot was adequately cleared at the time of the tenant’s fall, but for an “isolated slippery spot”. Accordingly, the Court of Appeal dismissed the tenant’s appeal.
This case serves to remind us that occupiers are not insurers and that neither perfection, nor unrealistic precautions against known risks, are required to discharge one’s obligations under the Occupiers’ Liability Act. Rather, a reasonable system of maintenance is in order, which is often best established by the documentation of winter maintenance procedures, as well as prevailing conditions throughout the winter maintenance season.