IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150514

Docket: S123585

Registry:
Vancouver

Between:

Samir Khoury

Plaintiff

And

City of Vancouver
and
Vancouver Board of Parks and Recreation

Defendants

Before:
The Honourable Madam Justice Sharma

Reasons for Judgment

[1]           
The plaintiff, Mr. Khoury, slipped and fell while visiting VanDusen Botanical
Garden (the “Garden”) on November 19, 2011. He hurt his shoulder, which he says
has interfered with his ability to earn income from his occupation, long haul
trucking. He sues the owners and operators of the Garden, the Vancouver Board
of Parks and Recreation and the City of Vancouver (collectively, the
defendants) in negligence and under the Occupiers Liability Act,
R.S.B.C. 1996, c. 337 [OLA]. He says they did not do enough to protect patrons
of the Garden from snow and ice hazards.

[2]           
The defendants say they met the duty of care required of them and stress
the standard cannot be one of perfection. The defendants also say that snow and
ice on a path in the Garden during winter months is an inherent risk to which
any adult would be aware. In the alternative, if liability is found, the
defendants dispute the extent and duration of any injury and the degree to
which it prevented Mr. Khoury from earning an income.

[3]           
I will address the two main issues, liability and damages, separately.

The Fall at THE GARDEN

[4]           
Both Mr. and Mrs. Khoury testified in relation to the facts relevant to
establishing liability. Their testimony on important facts was very similar and
I found them both to be reliable and credible witnesses.

[5]           
Mr. Khoury and his wife live close to the Garden and they visited it frequently.
They found it relaxing. They decided to visit it on November 19, 2011, which
was a Saturday. It was cold, but sunny. They arrived at the Garden at about
3:30 p.m.

[6]           
Mrs. Khoury had two favourite areas in the park that feature maple trees
and they decided to visit those areas. Mrs. Khoury tended to walk faster so she
was typically two or three metres ahead of Mr. Khoury as they walked through
the park. The park was not crowded at that time, although there were some
visitors. They visited the maple trees and then walked around a main path working
their way back towards the park exit. That main path took them over a wooden
bridge (referred to as the zig-zag bridge). As soon as one walks off the
zig-zag bridge, the pathway immediately slopes upwards.

[7]           
Both Mr. and Mrs. Khoury testified they saw water and snow on parts of
some paths and snow on some surrounding grass. Mr. Khoury testified via an Arabic
interpreter. The interpreter informed me that the Arabic word for snow also
means ice. For that reason, it is not clear to me whether Mr. Khoury said he
saw any ice in the Garden that day. Mrs. Khoury did not mention seeing ice on
any pathways. I find on a balance of probabilities that neither noticed ice on
the pathways that day.

[8]           
Mrs. Khoury walked over the bridge first and warned her husband that it
was slippery. He admitted he heard her and took extra care to walk cautiously
on the bridge. Unfortunately, Mr. Khoury fell shortly after he stepped off the
bridge.

[9]           
He fell quickly and was unable to break his fall. His right shoulder hit
the ground first. It became dislocated. He could not feel his right arm but had
pain in his left arm. He called out for his wife. He was aware that something
was wrong because his right arm “was not working”. His wife had to assist him
using both her arms to help him stand. Mr. Khoury was in a lot of pain and his
right arm was “swinging” freely. They walked back towards their car with Mr.
Khoury leaning on his wife for support.

[10]       
As they were leaving the park, Mrs. Khoury told a security guard that Mr. Khoury
had fallen and that the guard was a witness to her husband’s condition. The
guard was rude and rushed them out of the park because it was closing. Neither
of them saw any of the Garden staff in the park during their visit.

[11]       
Mrs. Khoury drove her husband to the Richmond Hospital. He was in an unbearable
amount of pain. They spent about five hours at the hospital. He was given
morphine and his arm was put in a sling after his shoulder was re-set. He was
sent home at that time with some medication.

The Garden

[12]       
The defendant relies on the testimony of James Warkentin and Shawn Longpre.
I found both to be credible and reliable witnesses.

[13]       
Mr. Warkentin is a park superintendent and has been working for the Parks
Board for about 37 years, 18 years of which have been at the Garden. It was
clear from his testimony that he takes great pride in his work and in the
Garden itself. Mr. Warkentin supervises about 10 employees which include
groundskeepers and gardeners. He is responsible for the general maintenance of
the Garden which includes overseeing the condition of the interior paths as
they relate to snow and ice treatment.

[14]       
Mr. Longpre is the equipment manager at the Garden and he reports to
Mr. Warkentin. He is responsible for running all the large equipment which
consists of a front-end loader, one tonne truck and mowers. Mr. Longpre is
responsible for the maintenance of most of the trails in the Garden. He has 15
years’ experience working at parks, including eight at the Garden.

[15]       
Mr. Warkentin described the park as 55 acres of rolling terrain with a
botanically-based garden. Typically the Garden is open from 9:00 or 10:00 in
the morning until dusk during the summer hours and from 10:00 a.m. to 4:00 p.m.
during the winter hours but the gardening/facility staff typically work from about
7:00 a.m. to 3:30 p.m. They also do a light display in the Christmas season
called Festival of Lights that is very popular. Mr. Warkentin is responsible
for planning and erecting the Festival of Lights.

[16]       
Visitors walk through the gardens on trails. There are three types of trails
in the Garden: asphalt trails that are about 3 metres wide; screenings or
gravel trails that are a bit less than 2 metres wide; and tertiary paths that
have bark mulch, wood chip or other trail mix material. Mr. Longpre is
responsible for the maintenance and upkeep of the first two of those but not
the third. He is also responsible for maintenance of the wooden and stone
bridges within the Garden and areas covered with pavers (around the visitors’ centre).

The Manual

[17]       
There are more than 200 parks in Vancouver. The Parks Board publishes a manual
entitled “Snow Removal & Ice Control:  For Road, Parking Lots and Sidewalks
Only” (the “Manual”) which is updated annually.

[18]       
Mr. Warkentin understood the Manual to set out the hierarchy of
priorities for snow and ice treatment. He testified the primary focus for the
Garden’s snow and ice treatment is the external sidewalks along Oak Street and
37^th Avenue, followed by the parking lot and the circular drive in
front of the Garden’s entrance. The internal paths are of secondary concern.
This is consistent with the Manual. The Foreword states:

The Vancouver Park Board Snow and Ice Control Schedule
provides for a reasonable level of service on major park access roads, primary
parking areas, perimeter and direct internal park pathways in the downtown area
and access paths to major facilities. These priority areas are treated as soon
as practicable during a snowfall or icy conditions and reasonable efforts are
made to ensure that they are kept open during and from the first day of
snowfall or icy conditions.

The Vancouver Park Board provides
very limited snow clearing on the less frequently used parks including
perimeter sidewalks and internal pathways, and parking areas. Those that are
scheduled are treated as soon as practicable.

[19]       
In summary, the major objectives are:

1.       to
treat perimeter sidewalks and direct internal park walkways in the downtown
area, park access roads, primary parking areas, and access paths to major
facilities as soon as practicable following a snowfall. Response to these areas
is initiated on a call-out basis or treated first on regular work days;

2.       to
treat the more heavily used perimeter sidewalks, direct internal park walkways,
and the more frequently used parking areas only under heavier snowfall
conditions; and

3.       to
provide a limited snow clearing program on less frequently used perimeter sidewalks
and direct internal park pathways and parking areas.

[20]       
The Manual is organized according to the priorities as listed in the Forward.
Section A addresses background issues (purpose, scope, climate, weather
reports, authority, communications and revisions to manual), section B deals
with organizational matters and section C is entitled “Snow and Ice Control Standard
Sites and Routes”.

[21]       
The introductory comments at C.1 state that snow clearing and ice
control identified in sections C.5.1 – C.5.7 “shall be carried out as a first priority
as soon as practicable during the first day of snowfall.” The response to those
areas is to be initiated on a call-out basis if outside regular working hours
or attended to first during regular working days.

[22]       
Section C.1 also identifies and defines what are primary or secondary
roads, sidewalks, parking lots, etc. Section C.1.1(a) states primary roads are
“the highest priority and shall be attended on a seven days a week, twenty-four
hours a day basis.” Primary roads are identified in Stanley Park, Queen
Elizabeth Park, Vanier Park Road to Burrard Marina and Jericho Service Yard Road.

[23]       
Next in the hierarchy are primary sidewalks and pathways which are
defined as “[p]erimeter sidewalks and internal park pathways that provide direct
access to major facilities” (section C.1.1(b)). They are to be cleared as soon
as practicable during the first day of snowfall. Section C.1.1.(c) deals with
primary public parking areas which are those heavily used by the public and
they “shall have areas immediately adjacent to the facility they serve treated
to 25% capacity as soon as practicable” after snowfall. Any additional areas
within these parking lots that need to be cleared to allow for more parking
shall be done during regular work hours.

[24]       
Section C.1.2 addresses secondary sidewalks, pathways and public parking
areas. Perimeter sidewalks and internal park pathways “that provide access to a
destination or are more heavily used shall be treated as soon as practicable.” Secondary
public parking areas are those more heavily used that serve Parks Board facilities
and they are to be re-treated as soon as practicable after the initial snowfall
but during regular working hours. The area immediately adjacent to the facilities
is to be treated to 50% capacity.

[25]       
Section C.1.3 deals with tertiary sidewalks and pathways which are
identified as “perimeter sidewalks and internal park pathways that are less
frequently used but where there are no viable alternative means of access
around or through the area” and they are meant to be treated as soon as
practicable after the decision being made to embark on this treatment.

[26]       
Section C.5.7 applies exclusively to the Garden and it states that
“[p]erimeter and building access sidewalks are [a] principal concern then 100%
clear parking spaces during initial treatment. Internal pathways are treated
secondarily [with] available equipment.” The parking lots are identified to
include the circular drive through the main parking lot, the main parking lot
and internal service roads. Sidewalks are divided into primary (park perimeter
and internal pathways near Christmas display) and secondary (internal pathways
– remainder).

[27]       
The defendants agree the Manual gives no specific guidance nor sets
criteria for the actual maintenance of a secondary pathway.

Maintenance

[28]       
Mr. Warkentin’s evidence is that the Garden always has a lot of rain but
the amount of snow differs each winter. For example, as of December 2014, there
had already been four or five times where snow and ice treatment actions were needed
whereas, during 2013, there was little need due to the mild weather.

[29]       
In terms of administrative organization, Mr. Warkentin communicates with
a city employee (Ms. Johnson) who acts as a conduit to the building service
workers. Those workers do not report to Mr. Warkentin; they report directly to Mr.
Warkentin’s boss. Mr. Warkentin typically contacts Ms. Johnson in the fall (via
phone call, emails and/or personal meetings) and he sets out his expectations
with regard to snow and ice treatment for the coming winter, among other
things. According to Mr. Warkentin, he provides Ms. Johnson a list of tasks to
be done when snow or ice treatment is needed. His understanding is that the
list became a document available to building service workers but no such
document was put into evidence.

[30]       
At the end of each week, Mr. Warkentin would communicate to Ms. Johnson if,
based on the weather forecast, he concluded there was a possibility of needing snow
or ice treatment for the upcoming weekend. He would typically contact his
gardening staff to see who might be available for overtime if it was needed. A
building service worker is supposed to be on-site during weekends and Mr. Warkentin
understood that person was supposed to report to him in a timely manner (by
about 7:30 a.m.) if there is any concern about the weather and conditions at
the Garden on the weekend. Regardless of getting a phone call, Mr. Warkentin
checks the weather and forecast early in the morning on the weekend.

November 19,
2011

[31]       
Mr. Warkentin has some direct recollection of events on November 19, 2011.
He did confirm that he always checks a couple of weather forecasts (he accesses
more than one weather app) Saturday and Sunday mornings in the winter. However,
he was clear that he does not rely on the weather reports; he always wants a
“first person” report about the conditions at the Garden. Mr. Warkentin keeps a
log at his home for occasions when snow or ice treatment is needed on the
weekend. A copy of the page of that log for November 19, 2011 was put into
evidence and it showed he recorded a temperature of -3 degrees Celsius and
clear skies that morning. The note was made contemporaneous with events.

[32]       
The note indicates Mr. Warkentin called Mr. Longpre at about 7:40 a.m. after
trying at least three times to reach Mr. Morallis. Because Mr. Warkentin could
not reach Mr. Morallis, he had not personal report about conditions at the
Garden. He then tried to reach his boss by phone and left a message. He spoke
again to Mr. Longpre asking him to go to the Garden for about one hour to
salt. He would be in contact again with Mr. Longpre before the job was
completed. One reason for that is to check whether Mr. Longpre needed more time
to complete the job, for which he would need Mr. Warkentin’s approval. Mr.
Warkentin also wanted a report back about conditions at the Garden. Mr.
Warkentin said there was nothing out of the ordinary in how events unfolded
that morning.

[33]       
Mr. Longpre confirmed that he invariably follows the same routine when
called in on the weekend. He has no specific recollection of what he did on
November 19, 2011. But he is confident he would have followed his normal
routine. That routine starts with him checking the parking lot, the “C” driveway
and the sidewalks along 37th Avenue and Cambie Street before going into the
park to check the entrance and exit to and from the visitors’ centre. If ice or
snow is present, he treats it. His priority then shifts to addressing any snow
or ice on all the bridges as well as the sloped areas because they are known to
get slippery even if no snow is present or ice has not formed. He testified
that he always treats the sloped areas, specifically the area where Mr.
Khoury fell, because it was a known slippery spot. His evidence on that point
was challenged but he remained resolute.

[34]       
 The log notes indicate that Mr. Warkentin got a call from Mr. Longpre
at about 9:30 a.m. and Mr. Longpre described the conditions and work he had
done. The time card entry for November 19, 2011 indicates Mr. Longpre worked
for two hours. Both Mr. Longpre and Mr. Warkentin stated phone contact is
usually made just before the work is completed, not after.

[35]       
Mr. Warkentin described Mr. Longpre as a “solid” employee, someone that
knew his job and was experienced; Mr. Warkentin relied on him to undertake the
snow and ice treatment properly and had no reason to think it would not be so
done. It was clear he had a lot of confidence in Mr. Longpre’s capacity to do a
good job.

[36]       
Mr. Longpre described his normal routine when dealing with snow or ice on
weekdays in the winter and his evidence was consistent with Mr. Warkentin’s. If
there is snow on the ground when he arrives at work in the morning, Mr.
Longpre’s priority is to ensure that the parking lot, “C” driveway, the
entrance to the visitors’ centre and sidewalks along Oak Street and 37th Avenue
are clear. He is able to use a front-end loader with a plough on the front to
clear the parking lot, “C” driveway and external sidewalks.

[37]       
The next priority is the internal trails but most of those areas need
manual work to clear snow. All crews working at the Garden pitch in to help
with snow removal on a weekday. Small all-terrain vehicles called “gators” bring
salt from the storage pile in the parking lot (it has to be loaded by shovel)
into the park. While one worker drives on the paved and gravel trails, another
worker follows behind distributing the salt on the pathway using a shovel in a
fanning motion. The bark mulch pathways are not treated.

[38]       
Mr. Longpre also described his regular routine on weekdays when it is
cold but no snow has fallen or snow remains on the ground. On those days he first
checks the bridges and other areas that are known to be problem areas. That
includes the slopes near the zig-zag bridge where Mr. Khoury fell. He checks
for icy spots. He breaks up any ice that has not melted and then (whether there
was ice or not) he puts down salt or a mixture of salt and gravel. For bridges
and sloped areas, they usually use ice melt and sand (not salt) because it is
not as harmful to the water and vegetation as salt.

[39]       
Staff have a system of placing buckets with secure lids at strategic
locations around the park filled with gravel and, at some other places, also ice
melt for ease of use. Both Mr. Warkentin and Mr. Longpre confirmed there is
always a bucket at the entrance and exit of the zig-zag bridge. There are
approximately 20 locations within the park where buckets are placed.

[40]       
The Garden does not keep records of accidents or falls, but Mr.
Warkentin testified that if someone (a worker or visitor) had been injured by a
fall at the Garden, he would have heard about it. He can recall only one such
incident ever being reported to him.

Findings of
Fact

[41]       
In light of all the evidence, I am persuaded of the following on a
balance of probabilities:

a)    The Manual
represents the Park Board’s policy regarding snow and ice treatment for parks,
including the Garden.

b)    Mr. Khoury fell
and dislocated his shoulder at the Garden on November 19, 2011, just
before the Garden closed for that day.

c)    Mr. Khoury’s
fall occurred on what is classified as a “secondary pathway” in the Garden.

d)    The conditions
at the Garden on November 19, 2011 were such that ice could have melted during
the day (the defendants admitted this fact).

e)    The zig-zag
bridge deck was slippery because of the weather conditions that day.

f)      Mr.
Warkentin called Shawn Longpre on the morning of November 19, 2011 at about 8:00
a.m. and instructed him to treat any snow or ice issues at the Garden.

g)    Mr. Longpre immediately
left for the Garden and followed his regular routine for addressing the snow
and ice issues at the Garden that morning.

h)    Snow did not
blanket the Garden that day. There was some snow on some pathways and grass.

i)     
Mr. Longpre placed material from the nearest bucket on the
zig-zag bridge and its exit pathway.

ANALYSIS

[42]       
This claim is brought pursuant to the OLA and negligence. The
Court of Appeal has found that the OLA is “a complete code regarding the
duty of an occupier of land” and there is no need to refer to earlier common
law cases about occupiers’ duties: Foley v. Imperial Oil Ltd.,
2011 BCCA 262 at para. 29. The general principles of the OLA are not in
dispute and are conveniently summarized in Wickham v. Cineplex Inc.,
2014 BCSC 850 at paras. 29 – 31 and Kerr v. Global Investments
House Inc., 2014 BCSC 1544 at paras. 26 – 29. Occupiers have a duty to take
reasonable care in the circumstances to make premises safe. What is reasonable
depends on the nature and use of the premises. The standard is reasonableness
and occupiers are not expected to achieve perfection, nor are they meant to act
as insurers to those who get injured on their premises.

[43]       
The OLA does not “create a presumption of negligence” or, to put
it another way, “the fact that the plaintiff fell does not, on its own,
establish that the occupier failed to take reasonable care to ensure that the plaintiff
was reasonably safe”: Kerr at para. 26. Evidence of prior safety and
continued safe use is relevant but not determinative to whether the area was reasonably
safe at the time of the fall. Finally, even if the plaintiff can prove a breach
of the standard of care, the plaintiff must still prove that the breach caused
the fall.

[44]       
The plaintiff referred to case law that discusses the significance of policy
decisions to the liability of governmental actors: Brown v. British
Columbia (Ministry of Transportation and Highways), [1994] 1 S.C.R. 420; Just
v. British Columbia, [1989] 2 S.C.R. 1228. Fortunately, the issue
of whether “policy” immunity can be invoked in this case does not arise because
the defendants agree they owed Mr. Khoury a duty of care. They also
concede liability may flow from the negligent implementation of a policy. Because
the defendants are not attempting to shield themselves from liability on the
basis of a policy defence, my analysis will be undertaken under the OLA.
The parties did not take the position that a separate analysis of liability
would need to be engaged for negligence (apart from the policy/operational
issue).

[45]       
Under either negligence or the OLA, the central issue is whether
Mr. Warkentin and Mr. Longpre took reasonable steps on the day in question
to ensure Mr. Khoury was reasonably safe when visiting the Garden. For the
reasons that follow, I find they did and, therefore, the duty of care was not
breached.

[46]       
A significant factor in this case is the nature of the premises where
Mr. Khoury fell. The Garden is not a typical park. Rather, it is intended
to provide a botanical and non-urban experience in the heart of the city. Not
all trails are paved. The land is not necessarily level. But for special events
(such as the Festival of Lights), the Garden generally closes when it gets dark
outside. Some of the trails have rough surfaces similar to bark mulch.

[47]       
Visitors choose to attend the Garden. Mr. and Mrs. Khoury were familiar
with the Garden having visited it many times before. They were clearly aware of
its characteristics. They were aware of the weather conditions and what impact
that might have on the Garden. Specifically, I find they realized the bridge
may be slippery on November 29, 2011, and Mrs. Khoury, in fact, called out to
Mr. Khoury to be cautious.

[48]       
 Mr. Warkentin was clear the degree of snow and ice the Garden
experiences differs every winter. Moreover, “[i]ce is a natural hazard of
Canadian winters” and “[i]t can form quickly and unexpectedly”: Brown at
439. In my view, the conditions at the Garden were not out of the ordinary for
a cold but sunny winter’s day. Mr. and Mrs. Khoury have both lived in Vancouver
for some time, and I find they were familiar with the phenomenon that snow or
ice that melts during the day may produce ice or a slippery surface when the
sun goes down and the temperature drops. I do not have enough information to
make a finding whether there was ice on the bridge or bridge exit at the time
Mr. Khoury fell. In my view, that is not necessary to determine liability.
Whether the standard of care was met is determined not by whether ice existed
but by what the Garden’s response was to possible snow and ice.

[49]       
In all these circumstances, I find the Garden’s response to possible ice
and snow conditions to be reasonable. While somewhat informal, the system in
place was effective. Mr. Warkentin can remember only one fall at the Garden,
but that was in a different location where there is a dip in the asphalt
walkway where ice could form. He thinks it was an employee, not a visitor, that
fell. I am persuaded that if there had been other falls involving injury near
or at the zig-zag bridge, Mr. Warkentin would have been advised. The fact there
has only been one incident during the time he has worked at the Garden has some
bearing on both the effectiveness of the Garden’s method of addressing snow and
ice and the level of safety at the area just past the zig-zag bridge.

[50]       
The plaintiff argues the Garden’s system of inspection and maintenance
for snow and ice was inadequate because it was not in writing (relying on Tom
v. Burnaby, [1999] B.C.J. No. 109 (S.C.)) and because, on the weekends,
it was done on an ad hoc basis. The defendants’ policy with regard to snow and
ice treatment is contained in the Manual. Instructions or descriptions of
specific tasks to achieve the Manual’s goals are not written down. Despite Mr.
Warkentin’s testimony that he believed his outline of expected tasks was documented
for building safety workers, I find on a balance of probabilities that it was
not written down.

[51]       
In my view, however, Tom can be distinguished because I do not find
it was unreasonable that instructions for snow and ice treatment were not
written down. In Brown,
Mr. Justice Cory says this at 439:

…Ice is a natural hazard of
Canadian winters. It can form quickly and unexpectedly. Although it is an
expected hazard it is one that can never be completely prevented. Any attempt
to do so would be prohibitively expensive.

[52]       
The Garden’s system for addressing snow and ice was tailored to the
reality of the unpredictability of ice formation. It is not as if the Garden
was oblivious to the dangers of ice formation. It was reactive depending upon
the weather, which I find to be reasonable for two reasons. For one thing, the Manual
is in writing and it provides the order of priority for addressing snow and ice;
that priority was followed in this case. Mr. Warkentin confirmed he was
satisfied that Mr. Longpre was familiar with the Manual’s priorities because of
his experience. He was also satisfied Mr. Longpre knew exactly what to do to
treat ice or snow and would do so well whenever called upon. Secondly, there is
no special knowledge or skill associated with treating ice and snow on a
pathway. Dispersing sand, ice-melt or salt is not a complicated task and the
lack of written instructions is no indication of the adequacy of the
defendants’ response to snow and ice.

[53]       
Furthermore, in Tom, the City of Burnaby only addressed problems
if a complaint was received about a particular location. In contrast, the
Garden’s system was not dependent on visitors reporting problems. It was
consistent with the priorities identified in the Manual. I am also satisfied
that Mr. Warkentin was diligent about addressing possible snow or ice
conditions on the weekend, anticipating on Friday what might be needed, but
also checking the weather early weekend mornings. Indeed, this case illustrates
his diligence. The building maintenance worker did not call him Saturday morning,
but he took action anyway.

[54]       
The plaintiff also argues it was unreasonable for there to be only one
person, working an hour or two, to address ice and snow on a weekend morning. The
plaintiff compares that to the evidence that the whole gardening crew would
need about two hours to treat the entire park. Mr. Longpre took under two hours
to treat the Garden on that particular Saturday morning.

[55]       
However, the plaintiff is not comparing identical activities. Mr.
Longpre’s evidence was that the gardening crew could take up to two hours to
clear the entire park if it was blanketed in snow. That was not the situation
on November 19, 2011. Mr. Longpre was clear that on days with no snow but when
it was sunny and cold, the treatment during weekdays does not differ from the
weekend days. On such days, material from strategically located buckets is manually
dispersed to address the potential that ice will form at that spot. There are
about 20 buckets on the property. More workers are involved on weekdays simply because
they are on site, not because the job is too onerous for one person.

[56]       
The plaintiff argues there was no evidence there had been ice melt, sand
and/or salt spread on the slope just past the zig-zag bridge on the day in
question. This is based partly on Mr. and Mrs. Khoury’s testimony that they saw
nothing. But the plaintiff also argues there was no evidence of what was done
with regard to snow or ice treatment because Mr. Longpre has no specific
recollection of that day. I rely on Belknap v. Meakes (1989), 64 D.L.R.
(4^th) 452 (B.C.C.A.) to find as a fact Mr. Longpre did follow
his normal routine on November 19, 2011, and his normal routine involved always
treating the zig-zag bridge and exit/entrance area. His evidence on that point was
clear and unshaken.

[57]       
The plaintiff introduced into evidence pictures of the spot where Mr. Khoury
fell. Having viewed those pictures, and hearing the evidence, it is not clear
to me that in the late afternoon on a winter’s day any material that had been
spread on the pathway would be visible. More importantly, quite understandably,
Mr. and Mrs. Khoury were pre-occupied with Mr. Khoury’s condition and
would not have undertaken a careful examination of the spot on the day in
question.

[58]       
For all those reasons, I find the defendants did not breach the standard
of care and they are not liable to Mr. Khoury for any losses caused by his fall.
Because of my conclusions, it is not necessary to address any remaining issues.

[59]       
If the parties cannot agree on costs, they can contact the Registry no
later than 30 days from the date of this decision either to set down a short appearance
before me, or to arrange a schedule for the exchange of written submissions.

“Sharma
J.”