IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110606

Docket: 42926

Registry:
Vernon

Between:

Darin Gary Chamberlain

Plaintiff

And

Donna Jodoin doing business as D Marie Hair Company
and New Orient Enterprises Ltd.

Defendants

And:

Donna
Jodoin Doing Business as D Marie Hair Company

Third
Party

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff slipped and fell on an icy sidewalk adjacent to a
commercial building owned by the defendant, New Orient Enterprises Ltd. (“New
Orient”). One of the tenants in the building is the defendant, Donna Jodoin.

[2]            
The plaintiff argues that the defendants are liable both under the Occupiers
Liability Act, R.S.B.C. 1996, c. 337 (the “Act”), and as a
matter of the ordinary law of negligence. He argues that both of the defendants
were occupiers of the premises on which he fell. Both defendants deny that they
are occupiers and both deny that they were otherwise negligent.

The Facts

[3]            
With two notable exceptions, the facts relating to liability are not in
issue.

[4]            
The accident happened at approximately 11 a.m. on Sunday, December 23,
2007. Mr. Chamberlain and his wife, Ms. Park, had come to Vernon from
their home in Vancouver to spend the holidays with Mr. Chamberlain’s
family. Mr. Chamberlain, accompanied by his wife, went to a group
counselling meeting held at the Shuswap-Okanagan Treatment Centre Society. The society’s
offices are on the second floor of a commercial building at 2810 48th Avenue in
downtown Vernon. Mr. Chamberlain and his wife planned to go shopping at a
nearby mall after the meeting. To that end, they took the stairs from the
second floor to street level and left the building exiting onto the sidewalk on
48th Avenue. Mr. Chamberlain had taken about two steps when his feet went
out from under him and he fell. He suffered a displaced fracture of his left
tibia, which required surgical repair.

[5]            
The building at 2810 48th Avenue has been owned by New Orient for over
20 years. Throughout that time, Mr. Wong has been the sole shareholder of the
company. The building has two storeys and houses three tenants. The top floor
is entirely occupied by the treatment centre. They have been tenants in the
building since approximately 1997. They are ordinarily open from Monday to
Friday, but they also host meetings on weekends. Their premises can be accessed
either from a ground-level door on 48th Avenue (the one the plaintiff used when
he left the building) or from the rear of the building (the one the plaintiff
used when he arrived at the building).

[6]            
There are two tenants on the ground floor: a hair salon operated by Ms. Jodoin
and a laundromat. If one were to stand on 48th Avenue and face the building,
the door that gives access to the second floor recovery centre offices is at
the left (or east) end of the building; the hair salon is in the middle; and
the laundromat is on the right. The property between the curb on 48th Avenue
and the front of the New Orient building is covered by a combination of
concrete slabs and decorative bricks. New Orient’s property extends out several
feet from the front of the building to where it abuts the sidewalk that is
owned by the City of Vernon. There is no obvious feature on the ground that
marks the boundary between the city’s property and New Orient’s property.

[7]            
 Ms. Jodoin opened D Marie Hair Salon in the New Orient building in
July 2007, about six months before the accident. From its inception, the shop’s
hours of operation have been from Tuesday to Saturday. On Tuesdays, Wednesdays
and Fridays, she is open between 9 a.m. and 5 p.m.; on Thursdays, she is open
from 9 a.m. to 7 p.m.; and on Saturdays, she is open from 10 a.m. until 4
p.m.

[8]            
Ms. Hassard operates the laundromat next door to the hair salon.
The laundromat is open seven days per week from 7:30 or 8 a.m. until 6 or 7
p.m.

[9]            
The first of the two significant factual issues is precisely where the
plaintiff fell – on city property or New Orient property. The only two
eyewitnesses to the plaintiff’s accident were the plaintiff himself and his
wife, Ms. Park. They both gave their evidence in a straightforward and
forthright manner. No issue was raised as to their credibility; the only issue
is as to their reliability in fixing the precise location of Mr. Chamberlain’s
fall. Ms. Hassard was working in the laundromat when the plaintiff fell.
Although she did not see him fall, she came out immediately after to offer
assistance.

[10]        
I am satisfied that the plaintiff fell while on New Orient’s property.
Both the plaintiff and Ms. Park marked the location of his fall on a
photograph of the area. The plaintiff commissioned a survey of the boundaries
of New Orient’s property. The surveyor superimposed those boundaries on
photographs and when those boundaries are superimposed on the photograph marked
by the plaintiff and his wife, the location they identified is on the New
Orient property. In addition, the narrative account given by the plaintiff and Ms. Park
corresponds with the location they plotted. They both testified that they had
planned to go shopping after their meeting and that they left the recovery
centre by the front entrance because they intended to cross 48th Avenue and
continue on to the nearby shopping mall. The most direct route from the front
entrance of the treatment centre to the mall involves travelling at a 45-degree
angle to the front of the building and crossing 48th Avenue on that tangent.
The plaintiff and his wife tacitly agreed to follow that route. It was cold on
December 23, 2007, and it had snowed the night before. Both Mr. Chamberlain
and his wife testified that once they were outside, they stopped at the
threshold of the door and Mr. Chamberlain adjusted his wife’s coat. They
then set off at a 45-degree angle. They had taken no more than two paces before
Mr. Chamberlain fell. The point that they marked on the photographic
exhibit is approximately two paces from the threshold of the treatment centre’s
front entrance.

[11]        
Ms. Hassard also marked a photograph indicating where Mr. Chamberlain
was when she saw him lying on the sidewalk. Based on her evidence, the
plaintiff came to rest entirely on city property. She very candidly
acknowledged that her evidence of where she saw the plaintiff was an estimate
and one given long after the fact. She testified that if she was mistaken in
her estimate, she was not mistaken to a significant degree because she said
that she could see Mr. Chamberlain on the sidewalk from inside the
laundromat, and given the position she was in and the location of the windows
at the front of her business, had he been significantly closer to the front of
the building, she would not have been able to see him.

[12]        
As noted, I am satisfied that Mr. Chamberlain slipped on New
Orient’s property. Ms. Hassard was not particularly confident of her
evidence as to his eventual location, and she noted that when she saw him, he
was trying to get up, and thus it is not entirely clear that where he was when
she saw him is where he fell. Indeed, I think it more likely that he fell
closer to the recovery centre door than the position where he eventually came
to rest. In any event, I am satisfied on a balance of probabilities based
primarily on the clear and forthright evidence of the plaintiff and his wife
that their estimate of the location at which he fell is the more accurate one.

[13]        
The second factual issue is whether the plaintiff slipped on ice or
something else. I am satisfied that he slipped on ice. I reach that conclusion
for three reasons. First, the nature of his fall, as attested to by him and Ms. Park,
is consistent with him having stepped on something extremely slippery. Both
described his feet as simply and instantly coming out from under him, so
quickly in fact that he did not have time to brace for the fall. Second, Ms. Park
saw ice on the sidewalk in the area that had been cleared by the action of Mr. Chamberlain’s
fall. Third, and finally, there is no evidence of anything else on the sidewalk
that may account for Mr. Chamberlain’s fall.

Liability

[14]        
Section 1 of the Occupiers Liability Act defines “occupier” as
follows:

"occupier" means a person who

(a) is in physical possession of
premises, or

(b) has responsibility for, and
control over, the condition of premises, the activities conducted on those
premises and the persons allowed to enter those premises,

and, for this Act, there may be
more than one occupier of the same premises;

[15]        
Section 3 of the Act defines an occupiers’ duty of care. It
provides in part as follows:

3(1) An occupier of premises owes a duty to take that
care that in all the circumstances of the case is reasonable to see that a
person, and the person’s property, on the premises, and property on the
premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1)
applies in relation to the

(a) condition of the premises,

(b) activities on the premises, or

(c) conduct of third parties on the
premises.

(3) Despite subsection (1), an occupier has no duty of care
to a person in respect of risks willingly assumed by that person other than a
duty not to

(a) create a danger with intent to
do harm to the person or damage to the person’s property, or

(b) act with reckless disregard to the safety of the person
or the integrity of the person’s property.

[16]        
Both Ms. Jodoin and New Orient argue that they are not “occupiers”
as defined by the Act. In the alternative, they argue that the plaintiff
has not established that they were in breach of any duty imposed by the Act.
I will deal with the question of whether either defendant has been proven to be
an occupier first and then turn to the issue of liability more generally.

(a) Liability of New Orient under the Act

[17]        
Counsel for New Orient argues that New Orient was not in “physical
possession of the premises”, nor did it have or assume responsibility for, and
control over, the condition of the premises and the persons allowed to enter on
those premises and thus was not an occupier under the Act. Further, she
argues that New Orient is not liable under s. 6 of the Act. I will
address these issues in turn.

[18]        
“Physical possession” as used in the first definition of “occupier” in
the Act is not synonymous with mere ownership (Wiley v. Tymar
Management Inc. (1995), 1 B.C.L.R. (3d) 201, [1995] 3 W.W.R. 684
(S.C.) at para. 18; and Zavaglia v. Maq Holdings Ltd. (1983), 50
B.C.L.R. 204 (Co.Ct.), aff’d (1996), 6 B.C.L.R. (2d) 286 (C.A.)). It involves
more, usually some degree of physical presence on the property. In Wiley v.
Tymar Management Inc., the plaintiff was injured when a chair he was
sitting in collapsed. The accident occurred in a mall owned by Tymar but leased
to various charities that held bingos there. The plaintiff was at such a bingo
when the accident happened. Tymar had purchased the mall about six weeks before
the accident. Its general manager went to the mall roughly one day every other
week to remove garbage. He did not have a key to premises and only went inside
when in the company of an official from one of the charities. Allen J. held
that this occasional attendance was insufficient to amount to “physical
possession” within the meaning of the Act. A similar issue arose with respect
to the landlord in Goldmanis v. Mador, [1991] B.C.J. No. 3049
(S.C.). In that case, the plaintiff was injured when he fell into a ditch excavated
immediately in front of the door to the defendant Mador’s truck repair shop.
The excavation was commissioned by the landlord and was on property it owned. The
tenant did not lease the portion of property on which the plaintiff fell. As to
the landlord’s connection to the property, aside from commissioning the sewer
work, the evidence was that he tried to go to the property once every three or
four weeks and otherwise “as needed”. Prowse J. (as she then was) concluded
that “this occasional physical presence on the premises” was not sufficient to
put the landlord in physical possession within the meaning of the Act.

[19]        
Mr. Wong testified that he was not permitted to, and did not go
into any of the rented premises in his building unless he was accompanied by a
tenant. He said that he drives by the building once a week for the purpose of
checking it. In addition, he sometimes visually checks the building if he was
in the area on other business (something that occurs with some regularity). He does
not enter on any portion of the premises when conducting these inspections; in
fact, he does not usually even get out of his vehicle. When he notes a problem
with the condition of the premises, he typically telephones the tenant
concerned rather than physically going into the premises.

[20]        
Ms. Jodoin had a written lease. In it, the “demised premises” are
defined by reference to a plan diagram. That plan diagram extends to and
includes the exterior walls of the building but not any property beyond those
walls. The property on which Mr. Chamberlain fell was not, therefore,
leased to Ms. Jodoin or anyone else for that matter. In this respect, New
Orient’s position is similar to the position of the landlord in Goldmanis v.
Mador. I am not satisfied that New Orient was in physical possession of the
property on which the plaintiff fell. Driving by once a week or even more
frequently without physically entering on any part of the property is not
sufficient to amount to physical possession.

[21]        
The next issue is whether New Orient was an occupier on the basis of the
second definition of that term. The component elements of that definition are
to be read conjunctively (Goldmanis v. Mador; Brown v. Mohawk
Property Corp., [1998] B.C.J. No. 1529 (S.C.) at para. 15; and Hodgson
v. Christensen, [1989] B.C.J. No. 2322 (S.C.)). Thus, to be an
occupier under the second definition in the Act, it must be shown that
the putative occupier had both responsibility for and control over the three
listed aspects or characteristics of occupation, namely, the condition of the
premises, the activities conducted on those premises, and the persons allowed
to enter the premises.

[22]        
In Hodgson v. Christensen, the plaintiff was injured when she
fell from a deck on a house owned by one of the defendants and leased by
another. At issue was the liability of the owner/landlord. The deck from which
the plaintiff fell was under repair. The landlord had agreed with the tenant to
permit the tenant to undertake the repairs. The repairs had been underway for
two or three weeks at the time of the accident. During that time, the landlord
had visited the house on two or three occasions and made decisions about the
ongoing repairs. Spencer J. held that the landlord did not meet the second
definition of “occupier” in the Act. He wrote that “he did not have the
minute to minute, hour to hour and day to day control over the premises”
envisioned by the definition.

[23]        
New Orient’s situation is similar to that of the landlord in Goldmanis
v. Mador. Prowse J. concluded in that case that the landlord was not an
occupier within the second aspect of the definition. She wrote that:

…not only did [the landlord]
not have day-to-day control over the premises, but it also did not have control
over the persons allowed to enter the premises. The premises were immediately
adjacent to the plaintiff’s shop, and it was the plaintiff who had control over
the customers and others coming to the repair shop.

A similar result was reached by Beames J. in Brown v.
Mohawk Property Corp., [1998] B.C.J. No. 1529 at para. 18. Even
if it might be said that New Orient exercised some control over the activities
in Ms. Jodoin’s shop, there is no evidence it exercised any control over
who went in the shop and thus who passed over the apron in front of it. Those
were matters entirely within Ms. Jodoin’s purview.

[24]        
Thus, I am not satisfied that New Orient was an occupier under the
second definition of that term.

[25]        
A landlord may be liable under the Occupier’s Liability Act even
if it is not an occupier. That is so because s. 6 of the Act
imposes a duty on landlords “if premises are occupied or used under a tenancy
under which a landlord is responsible for the maintenance or repair of the
premises”.

[26]        
The leases that New Orient had with the other two tenants in the
building specifically addressed the responsibility of those tenants to maintain
common areas of the building and the surrounding property. The lease that Ms. Jodoin
entered into is silent on responsibility for the maintenance and repair of
common areas. It imposes an obligation on Ms. Jodoin “to repair”, and
although that obligation is not specifically limited to the “demised premises”,
that is the only reasonable interpretation of the contract.

[27]        
Mr. Wong testified that when he negotiated the terms of Ms. Jodoin’s
lease, he dealt both with her and with her husband. He said that they asked
about their responsibilities and that he emphasized to them, their obligation
to attend to snow removal. He said that he told them that, like the other
tenants, they had to keep the sidewalks in front of and behind the portion of
the building that they leased clear of snow. He was not sure if he specifically
communicated this requirement to Ms. Jodoin, but he did communicate to her
husband. For her part, Ms. Jodoin testified that she could not recall
discussing snow removal with Mr. Wong; she did not, however, rule out that
possibility. Further, she testified that her husband may well have had such
discussions with Mr. Wong; in fact, she assumed that he did. In part based
on that assumption, she said that she did not raise the issue of clearing snow
from the sidewalks but rather simply assumed that responsibility. According to
all of the witnesses, Ms. Jodoin regularly shovelled the sidewalk in front
of her premises, and there is no evidence that Mr. Wong or anyone else on
behalf of New Orient ever shovelled the snow.

[28]        
I accept the evidence of both Mr. Wong and Ms. Jodoin. They
both impressed me as honest witnesses. From their evidence, I conclude that it
was a term of Ms. Jodoin’s tenancy, albeit an oral term, that she was
responsible for clearing snow and other debris from the sidewalk in front of
her store. I note in passing that the lease does not contain an entire contract
clause or any similar provision. It follows that New Orient is not liable by
operation of s. 6 of the Act.

[29]        
In summary, I am not satisfied that New Orient is liable under the Act.

(b) Liability of Ms. Jodoin under the Act

[30]        
The plaintiff argues that Ms. Jodoin was an occupier of the area on
which he fell. In the alternative, the plaintiff argues that Ms. Jodoin is
liable for the injuries he suffered on the basis of the ordinary law of
negligence, that is, whether she was an occupier of the premises or not.

[31]        
Counsel for Ms. Jodoin argues that she was not an occupier of the
premises in that she was neither in physical possession of the area nor did she
have responsibility for and control over the three characteristics of
occupation listed in the second part of the definition of that term in the Act.
Counsel likens Ms. Jodoin’s position to that of the tenant in Gardner
v. Unimet Investments Ltd. (1996), 19 B.C.L.R. (3d) 196 (C.A.). For
the reasons already given, I am satisfied that Ms. Jodoin was responsible
for the condition of the walkway or apron where Mr. Chamberlain fell, by
virtue of the terms of her lease with New Orient. Further, I am satisfied
that she also had control over and responsibility for activities on the apron.
In addition to shovelling and otherwise maintaining the area, she routinely put
a sandwich board style advertising sign on the walkway, inviting walk-in
customers to her business. Finally, I am satisfied that she had some
control over the people who were allowed to enter on the walkway.

[32]        
The circumstances in Gardner v. Unimet were different. In that
case, the plaintiff was walking on a city sidewalk in front of commercial
premises rented by one of the defendants. He fell through the plate glass
window of the tenant’s store after slipping on snow or ice on the sidewalk. The
tenant was found not to be an occupier under the Act at trial. The
plaintiff appealed and the issue on appeal was limited to whether the tenant
was an occupier within the second component of the definition in the Act.
The court dismissed the appeal, noting that even if by unilaterally assuming
responsibility for clearing the sidewalk and therefore assuming some responsibility
over its condition, there was no basis to conclude that the tenant had control
over persons using the sidewalk.

[33]        
Goldmanis was referred to in Gardner v. Unimet and it is
instructive on the issue of whether Ms. Jodoin is an occupier. In Goldmanis,
the tenant made use of the property in front of its shop; property owned by the
landlord but not leased to the tenant. The trial judge in Gardner
described the tenant in Goldmanis as having “effectively appropriated”
the area where the plaintiff fell. The tenant in Goldmanis did that by
parking equipment in front of his shop and storing material in the area. Prowse
J. also noted that the tenant had some measure of control over the area in that
the area was used primarily by people making use of the tenant’s shop. She
noted that the tenant had:

…some control over the
condition of the premises, at least insofar as being in a position to control
the day-to-day condition of the premises. For example, if someone left a truck
or tools blocking the office doorway, I have no doubt that [the tenant] had the
authority to require that the truck or tools be moved, or that other debris be
removed from the area. These daily responsibilities are the type that one would
usually associate with the daily user of premises…

All of these observations are true of Ms. Jodoin’s
relationship to the apron in front of her shop.

[34]        
In these circumstances, I am satisfied that she was occupier within the
second aspect of the definition of that term in the Act.

[35]        
The next issue is whether the plaintiff has proven that Ms. Jodoin
was negligent. The duty imposed under the Occupiers Liability Act is no
different than the duty imposed by the general law of negligence (Rendall v.
Ewertt (1989), 38 B.C.L.R. (2d) 1 (C.A.)). The standard of care in negligence
was described by Major J. in Ryan v. Victoria (City), [1999] 1
S.C.R. 201 at para. 28 in the following terms:

Conduct is negligent if it
creates an objectively unreasonable risk of harm. To avoid liability, a person
must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances. The measure of what is
reasonable depends on the facts of each case, including the likelihood of a
known or foreseeable harm, the gravity of that harm, and the burden or cost
which would be incurred to prevent the injury…

[36]        
Ryan J.A. in Atkins v. Jim Pattison Industries Ltd. (1998), 61
B.C.L.R. (3d) 183, expressed a similar proposition at para. 2:

The care which must be taken by
the occupier will therefore, differ according to the nature and use of the
premises.

The standard, however, is one of reasonableness not
perfection (O’Leary v. Rupert, 2010 BCSC 240 at para. 43, and Nicoll
v. The Owners of Strata Plan 1611, 2005 BCSC 770 at para. 25).

[37]        
Turning to the circumstances of this case, the gravity of the harm to
which users of the premises that Ms. Jodoin occupied is perhaps best
illustrated by the injuries suffered by Mr. Chamberlain. In view of the
risk of injuries of that kind, the question to be resolved is whether the care
taken by Ms. Jodoin was reasonable. The greater the likelihood that people
would frequent the area, and the greater the likelihood that they would be at
risk in doing so, the more rigorous and exacting will be the care necessary to
amount to reasonable care.

[38]        
Several aspects of the use of the area in which Mr. Chamberlain
fell are significant. The accident occurred on a Sunday morning. Ms. Jodoin’s
shop was not open on Sundays. Judging from the photographs, the window in the
front of her shop does not appear designed to or otherwise likely to attract
window shoppers. Further, although the apron area in front of Ms. Jodoin’s
store is largely indistinguishable from the sidewalk that it abuts, a
reasonable and prudent person in Ms. Jodoin’s circumstances would conclude
that people merely using the sidewalk to travel up and down 48th Avenue would
not wander onto the apron. That is so in part because the apron is in an area
recessed from the sidewalk proper; the east and west boundary of the apron is
marked by the protruding walls of the New Orient building. Pedestrians would
have to deviate from the most direct east-west path on 48th Avenue to walk on
the apron. On Sunday mornings, there would be no reason for pedestrians to do
that. In short, a reasonable person in Ms. Jodoin’s position would not
foresee any routine use of the apron on Sundays and even exceptional use would
be rare.

[39]        
It is also relevant to consider the treatment centre’s routine. It was
open at least some Sundays, although how frequently is not clear. Ms. Jodoin
was aware that it was open on some Sundays. In the absence of anything to
suggest otherwise, a reasonable person in her situation would be entitled to
assume that the treatment centre would discharge its responsibilities towards
its patrons by keeping the area in front of its entrance cleared, salted and
sanded when it was open for business. It would be reasonable for Ms. Jodoin
to proceed on the basis that patrons of the treatment centre would use the
cleared path available to them when accessing the sidewalk. Thus, while it
might be reasonable for Ms. Jodoin to assume some use of the apron area
associated with the treatment centre’s operations, it would not be reasonable
for her to assume that its patrons would use the apron area in front of her
store.

[40]        
A second aspect of the analysis of the likelihood of foreseeable harm is
the likelihood of the presence of ice on the apron. If, even in an area of low
pedestrian usage, there is a likelihood of the presence of ice, or some similar
hazzard, adjacent to a sidewalk, greater care will be necessary on the part of
an occupier if they are to avoid liability.

[41]        
The plaintiff in this case has advanced a theory about how the ice came
to be present on the sidewalk on the day in question. Specifically, the
plaintiff argues that the ice resulted from water dripping from Ms. Jodoin’s
overhead sign. When Ms. Jodoin purchased the beauty salon in the summer of
2007, she acquired an uninstalled backlit overhead sign. With New Orient’s
permission, she had the sign installed above her shop on the lower portion of
the north facing second-storey wall. The sign is approximately 10 feet long, 2
feet high and 4 or 5 inches deep. It is attached to the building such that it
faces or is parallel to the street. The sign is backlit and the lights are
hooked up to a photosensitive cell, such that they come on when it is dark and
are extinguished during daylight hours. The eastern edge of the sign is
immediately above the ice that Mr. Chamberlain slipped on. It snowed lightly
the night before he fell. The plaintiff theorizes that snow accumulated on the
top of the sign, melted during the night as a result of the heat generated by
the lights in the sign, and the resulting water ran off the sign and dripped
onto the sidewalk where it froze.

[42]        
I am satisfied on a balance of probabilities that the ice on the
sidewalk on which Mr. Chamberlain slipped was caused in the manner that
the plaintiff theorizes. I reach that conclusion for two primary reasons. First,
the plaintiff had photographs of the sign taken at night when it was snowing. Mr. Strand,
who took the photographs, testified that snow accumulated on the top of the
laundromat sign, which appears to be almost the same size as Ms. Jodoin’s
sign but is not backlit. Snow did not accumulate on Ms. Jodoin’s sign. The
photographs support Mr. Strand’s observations. Second, there is no other
source of water in the vicinity of the ice that Mr. Chamberlain slipped on.
In the result, I think it more likely than not that the ice on the sidewalk
that he slipped on was the result of water dripping from Ms. Jodoin’s
overhead sign and then freezing once it accumulated on the apron.

[43]        
The question that remains is whether a reasonable person in Ms. Jodoin’s
circumstances would foresee the presence of ice accumulating on the apron area
on days or at times when her business is not open. I limit the inquiry to such
times because ice or a slippery surface may result from the compaction of snow due
to routine pedestrian traffic. For the reasons already given, there was no
reason for Ms. Jodoin to anticipate pedestrian traffic in the area in
front of her store. Ms. Jodoin testified that neither before December 23,
2007, nor at any time since has she ever noticed ice on the apron in the area
at or near the treatment centre’s doorway. Further, she testified that no one
has ever expressed concern to her about the presence of ice. Ms. Jodoin
impressed me as a careful and forthright witness. I accept her evidence on
these and other matters. She testified that she did not become aware of Mr. Chamberlain’s
accident until September 2008, some 10 months after the fact. She learned
of his accident when she was visited by an insurance adjuster. After that
visit, she began to pay particular attention to the area underneath her sign
and in the vicinity of the treatment centre’s front entrance. Even with her
attention drawn to the concern, she did not notice ice on the sidewalk. She did
notice small icicles forming on the east end of the sign on one occasion, and
she called the insurance adjuster as a result.

[44]        
From the foregoing, I am satisfied that the presence of ice on the
sidewalk in front of Ms. Jodoin’s business is a rare occurrence. I reach
that conclusion because I accept Ms. Jodoin’s evidence to the effect
that she is not aware of ice forming in that area otherwise than in connection
with the fall that Mr. Chamberlain suffered. Further, I accept that the
ice formed as a result of the operation of the overhead sign. For ice to form
as it did on the day in question, it is necessary that there be a snowfall when
temperatures are not so cold as to counteract the effect of the heat generated
by the lights in the sign, but not so warm as to allow the melted snow to
simply evaporate. The confluence of those conditions is rare and that is
consistent with Ms. Jodoin’s empirical experience.

[45]        
In summary, the risk of anyone coming to harm as a result of the
condition of the apron on a Sunday morning in the winter is, in my view, very
low. That is so both because very few people could reasonably be expected to be
on the premises and because the presence of ice is, if anything, even less
likely. It is as against this background that the issue of Ms. Jodoin’s
conduct falls to be assessed.

[46]        
Ms. Jodoin testified that she is meticulous about the condition of
her shop and the sidewalk or apron area in front of it when she is open for
business. She said that a significant number of her customers wear high
heels and thus are at greater risk of slipping and falling in the winter, and
because she wants them to be safe when they use her premises, she takes
particular care to ensure that the area in front of her store is free of ice
and snow. A former employee of hers, Pamela Sagh, testified that Ms. Jodoin
made it clear to her staff that it was important to salt and shovel the area in
front of the store. She said that the store kept a logbook in which staff
members had to enter the date and time at which they shovelled or salted. I
digress to note that the logbook for the winter of 2007/2008 was inadvertently
discarded after her basement, where she had stored the book, was flooded. Helen
Hassard, the proprietor of the laundromat next door to Ms. Jodoin’s shop,
testified that Ms. Jodoin was “very diligent” about snow removal. She said
that she had seen Ms. Jodoin shovelling snow in her high heels. She also
saw her putting an ice melting agent on the sidewalk as necessary. Mr. Wong
testified that Ms. Jodoin was conscientious about her responsibilities,
including keeping the area surrounding her shop clear of snow. He said that he
had never received any complaints of ice on the sidewalk in front of her store.

[47]        
Ms. Jodoin testified that either she or one of her employees would
shovel and salt the apron in front of her store before the store opened if it
had snowed the night before. She also said that they would do that as necessary
throughout the day. On Saturday, December 22, 2007 (the day before the
accident), she and Ms. Sagh and another employee were working. She was
able to say that not because she has any particular memory of that day but
rather because her accounting records indicate as much. She testified that it
was her invariable practice to salt and sand throughout the day as necessary.
On days when her store was closed, she did not shovel snow unless the snow fall
was such that the City ploughed the streets. She was aware when the City
ploughed the streets because she lived in Vernon and because her husband’s job
involved snowploughing.

[48]        
I accept that Ms. Jodoin followed the practice she described and
did so before, during and after December 23, 2007.

[49]        
Counsel for Mr. Chamberlain argues that Ms. Jodoin’s practice,
in effect, amounted to doing nothing. He likens this situation to that in Waldick
v. Malcolm, [1991] 2 S.C.R. 456. The plaintiff in that case was seriously
injured when he fell on an icy parking area on the defendant’s rural residential
property in February in Ontario. The accident occurred four days after an ice
storm had left the area treacherous. The defendant testified that she did not
sand or salt the area where the plaintiff fell because she did not consider it
necessary or reasonable to do so. She said that to her knowledge, few if any of
the residents in the area salted or sanded their laneways in the winter. Austin
J. found the defendant liable. In doing so, he wrote that “to do nothing at all
regardless of changing conditions is surely not reasonable care to see that
visitors are reasonably safe”. It is worth noting that the defendant in Waldick
knew that the plaintiff was using the area. The plaintiff was in the midst
of a visit with the defendant when the accident happened. Iacobucci J. observed
at para. 33 that:

…the statutory duty on
occupiers is framed quite generally, as indeed it must be. That duty is to take
reasonable care in the circumstances to make the premises safe. That duty does
not change but the factors which are relevant to an assessment of what
constitutes reasonable care will necessarily be very specific to each fact
situation — thus the proviso "such care as in all circumstances of the
case is reasonable"…

[50]        
In my view, Waldick does not stand for the proposition that
“doing nothing” will always amount to a want of reasonable care. It will in the
face of known and foreseeable risks, as the circumstances in Waldick
demonstrate. In the matter at hand, the defendant’s system for ensuring a reasonably
safe area in front of her store did not amount to doing nothing in a general
sense. To the contrary, when she was open for business, she was meticulous in
keeping the area safe for use. Even when she was not open, she took some steps
to maintain the premises in a reasonably safe condition. The level of care she
employed, however, did not extend to attending on the day that the plaintiff
suffered his injuries. The question is whether, in all of the circumstances,
the method that she employed and followed amounted to reasonable care. It was
reasonable for Ms. Jodoin to conclude that people would not use the area
in front of her store when her store was not open for business. Further,
it was reasonable for her to conclude that ice would not accumulate in the
area. Given the relatively remote prospect of either of these circumstances
occurring, I am satisfied that the steps Ms. Jodoin took amounted to
reasonable care.

[51]        
It follows that the plaintiff’s action is dismissed.

[52]        
Unless there are matters touching on the issue of costs about which I am
unaware, the defendants are entitled to their costs at Scale B.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow