In Québec, winter conditions are becoming more and more unpredictable: abundant snowfall, followed by rainy days, followed by a fall in temperature causing the remainder of this precipitation to freeze. This trend continues in 2017, and like all other residents of the province, those who reside in a co-ownership environment, the co-ownership syndicates must deal with these conditions and take appropriate action.
However, can co-ownership syndicates be held responsible for any fall or injury of a person due to winter conditions on the building’s grounds?
In a decision of a few years ago, the Court of Québec, Small Claims Division¹, a co-owner of a syndicate of co-ownership, saw the Court dismissing her claim for damages for loss of income and expenses caused by her fall on the snowy and icy grounds of the co-ownership.
The Facts
The co-owner claimed damages amounting to $7,000 from the syndicate and from the snow removal firm hired by the latter. The syndicate and the snow remover dispute this amount, in addition to saying that they did not commit any fault.
According to the co-owner’s testimony, on a morning in March, she was walking on a private lane in the co-ownership to go to the recycling bin of the building. According to the co-owner, it would have been a distance of between 500 to 1000 feet, if not more.
She also testifies that it was typical spring-time weather for a month of March, i.e. about 5 degrees Celsius during the day, but minus 5 degrees in the evening and during the night. There had been only a slight accumulation of snow the previous day, less than five centimetres. The ground was covered with snow, which had partially melted during the day, leaving puddles of water, which froze at night.
According to the Court it is not clear whether the temperature was going down or up on the morning of the fall; everything seems to indicate that the temperature was not in extreme flux.
The co-owner who, in the opinion of the Court, was wearing boots appropriate for the snowy conditions, was walking on this road to the recycling bin, fell on ice covered with a thin layer of snow. Because of this fall she suffered a fracture of the wrist. She seeks compensation in the amount of $7,000 for lost revenues and expenses made. She works as an immigration consultant and must meet with clients, travel for work and type on the computer keyboard, which she could not do for six weeks because her car is equipped with a manual transmission.
According to the syndicate and the snow remover, the snow removal contractor had the mandate to clear snow from the co-ownership roads and to spread abrasive materials “as needed.” Both the syndicate and the snow remover agreed that the term “as needed” meant in this case, “at the request of the property manager” whose labour and products were invoiced separately in addition to the regular snow removal contract.
An employee from the syndicate had to take care of snow removal on a smaller scale, on pedestrian walkways, stairs and outside steps. If necessary, the employee assisted the building manager in spreading surplus abrasives which the snow remover did occasionally on special request.
In the Court’s view, the evidence clearly demonstrates that the snow remover, as well as the employee and the managers, were doing meticulous work at that level using appropriate equipment, and that the snow removal and the removal of icy surfaces was their priority and their work was impeccable under the circumstances.
Analysis and decision of the Court
The Court reminds the parties in its judgement that civil liability is governed by section 1457 of the C.c.Q., which stipulates that in order for a person to incur civil liability towards another person, the claimant must demonstrate three important elements: (1) that the person was guilty of an offence; (2) the existence of damage caused; (3) that the damage was caused by that offence.
In the circumstances, it is clear to the Court that the co-owner suffered damage as a result of her fall. But the Court also asks what the value of this damage is, and whether the syndicate and the snow remover committed a fault.
In citing a judgement of the Quebec Court of Appeal², the Court recalls that the mere occurrence of a fall on an icy surface does not presuppose the existence of a fault. In the case in point, the Court of Appeal recalled that the person claiming damages for this reason must give evidence of a fault on the part of the owner or persons acting or working for him, and that the mere fact of a fall on ice does not oblige the accused person to prove that he has committed no fault. According to the Court of Appeal, those who claim damages must prove the fault of the other party, which is not always easy to do in a context such as the winter in Quebec.
Considering the facts, the law and the jurisprudence, the Court finds that the obligations of the syndicate, like those of the snow remover, do not extend to the point that they must act as the insurer of the injured person. They had to take reasonable measures however to prevent co-owners from falling on the ice, and the evidence that they did do so satisfied the Court.
According to the Court, the defendants did not commit any fault and accordingly the claim for damages of the co-owner must be rejected.
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