This article was originally published in the legal edge on February 16, 2016

Early February seems an appropriate time to revisit the all-too-common tale of someone who slips on a municipal sidewalk and sues both the municipality and the snow removal contractor. When will the contractor be liable, how can a municipality protect itself, and what proof of “ice and snow” is required to found a claim? These issues were recently explored in the case of Parkinson v. the Corporation of The City of Brampton et al., 2015 ONSC 7241.

Ms. Undine Parkinson alleged that she slipped on “ice and/or snow” on the sidewalk in the City of Brampton on February 8, 2013, and she sued both Brampton and Four Seasons Site Development Ltd., the City’s municipal snow removal contractor, for unspecified damages. Brampton filed a cross-claim against Four Seasons, alleging that Four Seasons owed a duty to Parkinson and had breached that duty by failing to follow the reasonable standards set out in the snow removal contract with the City. Four Seasons brought a summary application to dismiss the claims against it, and the application was heard November 20, 2015.

Although Parkinson was represented by counsel when the claims were filed, she did not bring forward any evidence whatsoever that Four Seasons had left the sidewalk in an unsafe or dangerous condition, nor did she provide any evidence that there had indeed been a fall, or that she had suffered any injuries arising therefrom. She also did not appear for the hearing of the Four Seasons application. The Judge therefore dismissed Parkinson’s claim as against Four Seasons, leaving the Court to decide whether Brampton’s cross-claim against Four Seasons could be determined upon this summary application. The issue of Brampton’s potential liability to Parkinson also remained outstanding, to be heard at a later date. Because Brampton could still be found liable to Parkinson, it was important for Brampton to pursue its cross-claim against Four Seasons and resist dismissal at this juncture.

Four Seasons was contracted for snow removal services for the area in question on an on-call basis, attending only when requested to do so by Brampton. The evidence showed that Four Seasons had provided services to the location on January 31, 2013, and was not called out again until February 8, after Parkinson’s alleged fall. Brampton alleged that Four Seasons had not been in compliance with the levels of service under the contract when it attended on January 31, and therefore, any liability should be borne by Four Seasons. The contract required Four Seasons to drop both sand and salt during its deployment, to clear the sidewalk to “bare surface,” and to distribute the sand evenly across the entire width of the sidewalk. Brampton alleged that if these contractual standards had been met, the sidewalk would not have been in a hazardous or unsafe condition at the time of Parkinson’s alleged fall, and therefore, Four Seasons’ failure to comply could have caused or contributed to Parkinson’s alleged incident.

The amount of snowfall that occurred after January 31, and whether or not the snowfall had constituted a hazard, became a central issue in this hearing. Neither Four Seasons nor Brampton presented the Court with conclusive evidence about snowfall during the period between January 31 and February 8. Therefore, Four Seasons submitted that, even if Parkinson could establish liability against Brampton, Brampton had not presented any evidence to demonstrate either breach of contract or breach of duty of care by Four Seasons, such as to warrant contribution or indemnity. While not in disagreement with this submission, the Court found that there was insufficient evidence about the weather to decide the matter on a summary judgement motion, and concluded that a full hearing would be required.

Accordingly, Four Seasons’ application to dismiss the cross-claim by Brampton was dismissed. However, Four Seasons’ application to dismiss Parkinson’s claim against it was successful, since Parkinson had failed to appear and oppose the application or provide any evidence to support her claim against Four Seasons.

Editor’s Note

This application underscores the importance of crafting specific, measurable, reasonable service standards for all service contracts, and for ensuring that the contractual standards are met. In the Court’s words: “A contractor will be in breach of its duty of care to the users of the sidewalk if it is in breach of the contractual maintenance standards, provided the contract standards are within the municipality’s duty of care and are equal to or less than a reasonable standard determined by the court.”.

In other words, a contractor will only be held to the standards in the contract, and those standards must be reasonable. A provision purporting to shift all risk of liability to the snow removal contractor, for example, would be unlikely to be upheld by the courts (assuming that a contractor would agree to such a provision, and further assuming that an owner could pay the huge risk premium that such a provision would attract). Municipalities are particularly exposed to these types of slip-and-fall claims that happen on a ridiculously frequent basis, and should be keeping an eye on cases such as this one – as well as the one that will follow, when the claim by Parkinson against Brampton, and Brampton’s cross-claim against Four Seasons, is finally heard.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.