Now is the Winter of Our Discontent: ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties

Now is the Winter of Our Discontent:[1] ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties

Introduction

In the recent decision of Musa v. Carleton Condominium Corporation No. 255,[2]  the Ontario Court of Appeal offers clear guidance as to how long a winter maintenance contractor can wait before it must apply salt to an area, a problem which has long plagued both plaintiff and defence lawyers alike.

The Slip and Fall[3]

In the early hours of the morning, on a chilly December 5^th just around 4:00 a.m., Ottawa was hit by its first snowstorm of 2016.  At about 9:30 a.m. Mr. Wael Musa stepped out from his condo residence onto a plowed lane on the roadway and started walking to his car in the condo parking lot. There were no sidewalks between his condo residence and the parking lot. On his way, he lost his footing, slipped and fell. After landing on his back, Mr. Musa managed to get up and make it to his car. Despite some pain, he was able to drive to work, where his employer pointed out the gravity of his injuries when he attempted to remove his boot.[4] As result of the fall, Mr. Musa sustained a fractured ankle.

At the time of the accident, the roadway had been plowed, but not salted. The owner of the condo, Carleton Condominium Corporation No. 255 (“Carleton”) had contracted out its winter maintenance for the last four years to Exact Post Ottawa Inc., (“Exact Post”), a snow removal contractor. On the day of the fall, Exact Post did not salt the roadway until approximately one and a half hours after Mr. Musa’s fall. Mr. Newman, the Carleton snow plow operator who cleared the snow, was still on site when the fall occurred, and actually witnessed it from inside the cab of his vehicle, from a distance of about 30 feet.[5] After witnessing the fall, Mr. Newman warned another resident of the slippery conditions. Although there was a large box of salt close to where the plaintiff parked his car that could have been applied with a shovel, Mr. Newman did not do so as he believed that this fell outside of his job responsibilities.[6] Mr. Musa sued both Carleton and Exact Post. Prior to trial, the parties all agreed on damages, so the only thing at issue was Exact Post’s liability.