Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030

Facts of the Case 

On the morning of December 5th, 2016, during the first snowstorm of the season, 46-year-old Wael Musa (“Musa”) was heading to his parked car on his way to work when he slipped and fell on the icy roadway in front of his condominium. The roadway had been plowed earlier that morning but had not yet been salted or sanded.  

Musa was able to continue to work. However, after experiencing ongoing pain, he visited the hospital where he was treated for a broken ankle.  

Musa filed a personal injury action for negligence against both the Carleton Condominium Corporation No. 255 (the “Condominium”) and the snow removal contractor, 6669981 Canada Inc., C.O.B as Exact Post Ottawa Inc. (“Exact Post”) for failure to properly maintain the area during the storm. For this action, the defendants agreed that the Condominium’s obligations for winter maintenance were fully delegated to Exact Post.  

The parties agreed on damages, but they proceeded to trial on the issue of liability. Musa claimed that Exact Post had unreasonably delayed salting the road which contributed to the icy conditions, putting the residents at risk and causing his fall.  

Exact Post countered that the clearing and salting were timely and appropriate. They claimed that Musa was guilty of contributory negligence since he was not wearing appropriate footwear for the weather or walking with proper care in consideration of the winter conditions.  

The matter was presided over by the Honourable Justice C.T. Hackland (“Justice Hackland”). 

Issues in the Case 

At issue in this case was whether Exact Post had fulfilled its duty of care in its approach to salting the road, and whether Musa was responsible for his fall due to inadequate footwear and lack of care when walking.  

Decision 

Justice Hackland found for the Plaintiff. He found that Expert Post had failed in its duty to make the area safe for residents by not salting the roadway until approximately 7 hours after the snowstorm had started.  

Justice Hackland also dismissed the counterclaim that Musa was guilty of contributory negligence, as the evidence did not support this assertion.  

Reasons 

On the date in question, the snow began falling at around 4:00 a.m. and continued well into the afternoon. The snowplough operator, Mr. Newman (“Newman”), was an employee of Exact Post. He had arrived on site at 7:30 a.m. to begin plowing and stayed for 2.5 hours. At no time did he apply any road salt or grit, claiming that it was not a task for which he was responsible. Furthermore, he did not have a salt spreader on his vehicle.  

There was a nearby box containing road salt, but Newman had not used it. He claimed the usual practice was that his boss—the owner of Exact Post, Mr. Mitchell (“Mitchell”)— was responsible for applying the road salt at each of his properties after plowing.  

Mitchell eventually arrived on site at 10:05 a.m. and laid the salt at about 10:50 a.m. By that time, the snow had been falling for around 7 hours. 

Contributory Negligence 

The Condominium Corporation and Exact Post, (the “Defendants”) claimed Musa’s fall occurred because he was wearing street shoes instead of proper snow boots. The defendants also claimed that he was not taking proper care while walking, given the weather conditions.  

Justice Hackland dismissed both claims. A witness corroborated Musa’s testimony that he was wearing snow boots when he arrived at work. Newman, who had witnessed the fall from more than 30 feet away, could not have reliably gauged Musa’s footwear from that distance.  

Justice Hackland also dismissed the claim that Musa had not walked with due care. The conditions of the accident scene were clearly very slippery, and there was no evidence to prove that Musa was not aware of that fact. 

Statutory and Contractual Obligations 

To determine whether Exact Post had breached its duty of care by delaying the road salting, Justice Hackland was obliged to examine its statutory and contractual obligations regarding winter maintenance, particularly in regards to the removal of snow and ice.  

After review of the Occupiers’ Liability Act, Ottawa’s Property Maintenance By-laws, and the contract between the Condominium and Expert Post, Justice Hackland found that it was Expert Post’s responsibility to manage the conditions appropriately. This includes salting the road when necessary to keep residents safe, and to conduct an early morning “pass through” to allow traffic to safely exit in the morning. [17]  

Mitchell’s Evidence 

Mitchell testified that, as the owner of Expert Post, he is responsible for 14 properties. He also testified that he performs all the road-salt applications personally. His plow operators do not carry salt or spreaders, but on occasion, they are asked to manually shovel salt in particular areas.  

Upon arrival at the site, he claimed that he did not believe the roadway conditions to be especially icy or in need of immediate salting. He claimed that, had the property required it, he would have applied road-salt before he finished the plowing. Justice Hackland pointed out that Mitchell had already been advised by Newman that a resident had fallen that morning, and therefore must have been aware of the icy conditions. This begged the question of why Mitchell did not salt the area right away.  

Later in his testimony, Mitchell agreed that it was important to apply road salt as soon as possible after plowing. Plows can compress snow and create slippery conditions. This admission was at the heart of Justice Hackland’s findings that Mitchell had breached his duty of care by failing to act.  

Plaintiff’s Expert

Civil engineer and expert witness for the Plaintiff, Dewan Karim P. Eng (“Karim”) relied upon his professional experience in traffic engineering and his knowledge of the industry’s best practices to establish standards of care when rendering his opinion. He argued that Mitchell was incompetent. He claimed that, had Mitchell “assessed the de-icing application rates, applied salt/grit during snow removal, and started de-icing and snow removal actions in the early morning, a hazardous condition could have been avoided and Mr. Musa could have had a safer walking surface and avoided slipping and falling,” [34]. 

Karim also argued that, when clearing the pathway that morning, the plow likely compacted the remaining snow with its back-and-forth action, which then froze and exacerbated the icy conditions. Given the weather forecast, Mitchell should have arranged for Newman to arrive earlier than 7:30 a.m. Had he arrived at 6:00 a.m., for example, they would have had time to plow and salt before the residents left for work that day.  

Mitchell rejected the suggestion that pre-salting the road in anticipation of the storm would have mitigated the icy conditions. He argued that this practice is only useful for freezing rain conditions. He also argued that, in this case, salting earlier would not have helped because of the heavy snowfall and blowing snow.  

Karim’s testimony highlighted the fact that Mitchell had no formal training or education in winter road maintenance. Instead, he relied solely on his experience and “common sense.” He was unaware of any industry organizations or their recommended best practices. Additionally, he appeared to be dismissive of any science on the subject. 

Summary

Ultimately, Justice Hackland agreed with Karim’s analysis, finding that Mitchell had breached his duty of care when he did not pre-salt the area or ensure that the road was salted concurrently with the plowing. Mitchell’s failure to delegate salting responsibilities amongst his plowing team, compounded by his large number of clients across the city, created unnecessary slip-and-fall risk for the residents of many properties.  

Justice Hackland found Export Post to have been negligent and therefore liable for Musa’s injuries.  

Source Consulted:  Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030