2019 BCSC 48 Scheck v. Parkdale Place Housing Society

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Scheck v. Parkdale Place Housing Society,
	2019 BCSC 48

Date: 20190118

Docket: 12828

Registry: Rossland

Between:

Muriel Winona Scheck

Plaintiff

And:

Parkdale Place Housing Society and
The Corporation of the District of Summerland

Defendants

Before: The Honourable Mr. Justice Johnston

Reasons for Judgment

(In Chambers)

Counsel for the Plaintiff:	J.T.E. Gelber
Counsel for the Defendant: The Corporation of the District of Summerland	J.J. Krusell
Place and Date of Hearing:	Rossland, B.C. October 30, 2018
Place and Date of Judgment:	Rossland, B.C. January 18, 2019

[1] On December 29, 2015, the plaintiff Ms. Scheck was injured when she slipped and fell on a sidewalk adjoining her seniors’ residence in Summerland, B.C.

[2] She sued Parkdale Place Housing Society (“Parkdale”), the occupier of the building in which she lived, and the Corporation of the District of Summerland (“Summerland”), on whose sidewalk she slipped and fell.

[3] Both defendants applied to dismiss Ms. Scheck’s claims on a summary trial. For reasons found at 2018 BCSC 938, the claim against Parkdale was dismissed, and Summerland’s application was adjourned for further evidence. As this trial is a continuation of the earlier one, those reasons are integral to these, and the two must be read together.

[4] Further evidence has been provided in the form of an affidavit from Ms. Scheck in which she swears that she slipped on a patch of ice and fell in spite of using her four-wheeled walker. She swears that this happened shortly before lunch time, and that she saw fresh snow on the public sidewalk on which she fell, which she describes as “significant.” Ms. Scheck swears that it had recently snowed during the night or early morning and there was a coating of snow on the sidewalks. I accept this evidence. In doing so, I have preferred it over the evidence of Mr. Cook, the maintenance coordinator of Parkdale Place, who testified on discovery that the sidewalks were bare and dry, and that it had not snowed for some time. Mr. Cook’s evidence was heavily reliant on his records, and his conviction that he would have followed his normal routine of morning inspection, including looking out for snow or ice. I find Ms. Scheck’s recall of her observations on December 29, 2015, more reliable than Mr. Cook’s recollection based largely on entries in records, or the absence of a notation of snow in those records. As well, slipping on ice is the most likely explanation for Ms. Scheck’s fall in spite of using her four-wheeled walker.

[5] I place no weight on Ms. Scheck’s opinions that no one had attempted to clear this snow before she fell or that the ice underneath the snow was a “hidden hazard.”

[6] With the fresh evidence from Ms. Scheck, and a further affidavit from Mr. Denegar, Summerland’s Director of Corporate Services, Summerland has renewed its application to dismiss Ms. Scheck’s claims.

[7] As stated in the earlier reasons, Summerland’s primary argument is that any duty of care it owed to Ms. Scheck that related to the condition of its sidewalks was vitiated or negated in this case by Bylaw No. 93-065, A Bylaw to Require the Removal of Snow, Ice, and Rubbish from the Municipality’s Sidewalks & Footpaths (25 October 1993). Summerland maintains it adopted the Bylaw in good faith, after weighing the public good against the municipality’s available resources, and that the Bylaw represents a reasonable and rational policy decision on its part.

[8] The earlier reasons referred to the decisions in Brown v. British Columbia, [1994] 1 S.C.R. 420 and Just v. British Columbia, [1989] 2 S.C.R. 1228. These decisions are part of a line of Supreme Court of Canada authorities regarding the intersection between duties owed by public authorities on application of the Anns test and public authorities’ legitimate need to establish priorities among the demands on finite public resources.

[9] I am satisfied that Bylaw 93-065 represented a reasonable, rational, and bona fide policy decision by Summerland’s Council. It was a genuine attempt to balance the duty of care Summerland owed to those using its sidewalks against the services that Summerland could afford to deliver to those users.

[10] That does not end the matter. Bylaw 93-065 does not stand alone. As the earlier reasons indicate (at para. 25), Bylaw 93-065 does not deal with inspection of municipal sidewalks. However, Summerland assumed an obligation to inspect its sidewalks for the presence of snow and ice through its policy manual, which it revised in 2014. Policy No. 400.3, Winter Road and Sidewalk Maintenance (10 October 2014) includes the following provisions:

1. During winter months, roads and sidewalks shall be inspected daily for the presence of snow and ice.

…

3. Winter sidewalk maintenance will be performed exclusively on those portions of sidewalks that are within the frontage of a District property.

4. The Director may, at any time and at his sole discretion, alter winter road and sidewalk maintenance priorities and schedules due to current availability of equipment and personnel or to current weather conditions.

5. The Director may, at any time and at his sole discretion, delay or alter winter road and sidewalk maintenance in order to delegate trucks, equipment, and personnel to other concurrent emergent events.

[11] Mr. Denegar has provided the following affidavit evidence regarding Summerland’s usual practices in relation to snow and ice maintenance:

6. Due to the limited budget and human resources of the District, the District’s bylaw inspection and enforcement (via its Bylaw Services department) is a reactive, complaints-driven service, and there is no active monitoring of inspection by District staff in respect of compliance with Bylaw 93-065, nor of any other District bylaws.

…

8, Each year before snow or ice is likely to accumulate, the District reminds residents and businesses of their requirement to clear their sidewalks as per Bylaw 93-065. This is done with a notice in our monthly newsletter, which is sent along with District utility bills to every property owner, and via e-mail to any resident who has signed up for our electronic newsletters. Further, the reminder is also posted on our website’s home page and on our Facebook and Twitter pages.

9. If a complaint is received regarding a sidewalk that is uncleaned or which has ice or snow on it, District staff will then inspect and photograph the area, and give notice to the adjacent owner (and tenant, if applicable) to clear the accumulation.

10. Final notice from District staff to the property owner gives one hour to clear the accumulation. If the accumulation is not cleared or ice removed, the District will have its contractor clean or clear the accumulation, and the expense is charged back to the property owner. A District Bylaw Services Officer then re-inspects the area to see that it has been cleared.

[12] In a previous affidavit, Mr. Denegar affirmed that he reviewed Summerland’s records and found nothing to indicate that prior to December 29, 2015, Summerland had received a complaint of snow or ice on the sidewalk in the area of the plaintiff’s fall, nor any record that Summerland gave notice to Parkdale that it was not complying with its snow clearing obligations under Bylaw 93-065. Additionally, Mr. Denegar found no record that Summerland had penalized Parkland under Bylaw 93‑065, and no record of a reported fall and injury in the area of the plaintiff’s fall.

[13] It appears that there is a disconnect between Summerland’s written policy requiring daily sidewalk inspections and Mr. Denegar’s evidence that because of budget and human resources limitations, “there is no active monitoring or inspection by District staff in respect of compliance with Bylaw 93-065.”

[14] While Summerland has established that its policy decision to shift the obligation to clear sidewalks onto adjacent owners and occupiers, as set out in Bylaw 93-065, was reached in good faith and is both rational and reasonable, it has also established that its Council adopted a companion policy, No. 400.3, which required it to inspect for snow and ice on a daily basis during the winter months. Summerland has established that this daily inspection policy was not followed. Mr. Denegar’s explanation that Summerland’s failure to follow its written inspection policy was due to its limited budget and human resources does not, in the face of the formally adopted policy to inspect, rise to the level of a “policy immunity defence.” At best, it is an operational decision to ignore the policy adopted by the municipal council.

[15] Put simply, Summerland breached its own policy by failing to inspect its sidewalks for snow and ice, which I have already found were present on the sidewalk outside Ms. Scheck’s home on December 29, 2015.

[16] When Ms. Scheck fell she was on her way home from a store a short distance away. She puts the fall “shortly before lunch time,” and there is no reason to challenge her on that assertion. Mr. Cook’s discovery evidence was to the effect that he routinely inspected the outside of Parkdale Place each morning, including the adjacent sidewalks, as he was alive to the burden placed on Parkdale Place by Bylaw 93-065. Although December 29, 2015 was a holiday for Mr. Cook, he testified that he would have conducted his usual inspection anyway as he lived nearby. Although I have already preferred Ms. Scheck’s direct evidence that there was ice and snow on the sidewalk over Mr. Cook’s inference drawn from the lack of a record of snow or ice in his logs, it is possible that it snowed between any early inspection and the accident. Unfortunately, no meteorological or other evidence has been presented to establish whether snow fell during the morning of December 29, 2015.

[17] Having found that the prima facie duty Summerland owed to Ms. Scheck to take reasonable care to make its sidewalk safe for her passage was negated by the policy decision reflected in Bylaw 93-065, but that Summerland had assumed an obligation to inspect its sidewalks for snow and ice on a daily basis during snow and ice season through Policy No. 400.3, and that it deliberately decided not to conduct the inspections, I conclude that the failure to inspect was a breach of the duty Summerland owed to Ms. Scheck.

[18] There is no question that Ms. Scheck suffered compensable damage when she was injured by her fall on December 29, 2015, and I have accepted her evidence that she fell as a result of slipping on ice covered by snow that had accumulated on the sidewalk. The presence of snow on a sidewalk is easily observable on even a cursory inspection of the sort that can be done by driving along the street. As I have already found, Summerland assumed an obligation to inspect its sidewalks for snow and ice daily during winter months under Policy No. 400.3. Thus, Ms. Scheck has proved on a balance of probabilities that Summerland owed her a duty to inspect for snow and ice, that Summerland breached that duty by adopting a practice of reacting to complaints rather than inspecting as required by its written policy, and that she sustained compensable damage.

[19] What remains is to decide whether Summerland’s breach of the duty to inspect that it owed Ms. Scheck caused her damage.

[20] The traditional test for causation is the “but for” test, which requires a plaintiff to show on a balance of probabilities that “but for” the defendant’s negligence, the injuries complained of would not have occurred: see Clements v. Clements, 2012 SCC 32 at para. 8.

[21] For some time, there appeared to be another possible route to finding a causal relationship between a breach of duty and injury or damage, if a breach were found to be a “material contribution” to the injury. As the Court said in Athey v. Leonati, [1996] 3 S.C.R. 458:

15. The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, [[1972] 3 All E.R. 1008 (H.L.)]. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

16. In Snell v. Farrell, [[1990] 2 S.C.R. 311] this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.

17. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [Emphasis in original.]

[22] The Supreme Court of Canada has considered the question of causation in tort in Clements, and Ediger v. Johnston, 2013 SCC 18.

[23] In Clements a woman was injured when a motorcycle operated by her husband (on which she was a passenger) crashed. The crash was found to have occurred because the defendant husband had overloaded the motorcycle, and was exceeding the speed limit. The husband did not know that a nail had punctured the motorcycle’s rear tire, and the nail fell out when he sped up to pass a vehicle. The rear tire started to lose pressure and the motorcycle began to wobble. The crash and consequent injuries were contributed to by the husband’s speeding on a motorcycle he had loaded beyond its safe capacity, and by the nail puncture in the rear tire. The trial judge found that on the facts, the injured passenger was unable to show that “but for” her husband’s negligent driving her injuries would not have occurred, but held that the husband’s negligence was a “material contribution” to her injuries, and found him liable. The Court of Appeal set aside the trial judgment on the basis that the “material contribution” test did not apply, and the plaintiff had failed to prove on a balance of probabilities that “but for” her husband’s negligence she would not have been injured. The Supreme Court of Canada considered the possibility that a “material contribution” test might apply where a plaintiff was unable to meet the “but for” test for causation, and concluded at para. 46:

46. The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

[24] The Court reaffirmed the general rule in Ediger at paras. 28-29, omitting any discussion of the exceptional “material contribution” scenario:

28. This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. Causation is assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred (Clements, at para. 8). “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (para. 8 (emphasis deleted)).

29. Causation is a factual inquiry (Clements, at paras. 8 and 13)…

[25] This case does not involve multiple tortfeasors: I have already found that Parkdale owed no duty of care to Ms. Scheck. Summerland did owe her a duty to inspect, and breached it by failing to follow its own written inspection policy. Accordingly, I decline to consider whether Summerland’s breach “materially contributed” to Ms. Scheck’s risk of injury, and will apply the general “but for” test.

[26] I find that because Summerland did not look for snow or ice on December 29, 2015, the steps necessary to remove it were not taken, either by Summerland notifying Parkdale of the icy condition so Parkdale could do what Bylaw 93-065 required of it, or by Summerland calling its contractor in the event of Parkdale’s failure to deal with the snow and ice accumulation.

[27] I conclude that Summerland’s breach was a significant factor in Ms. Scheck’s injury, as that phrase is used in Clements at para. 23:

23. In Athey, [t]his Court, per Major J., discussed the limitations of the “but for” test and the propriety of exceptionally using a material contribution test. Major J. emphasized that a robust common sense approach to the “but for” test permits an inference of “but for” causation from evidence that the defendant’s conduct was a significant factor in the injury, and concluded that “[t]he plaintiff must prove causation by meeting the ‘but for’ or material contribution test” (para. 41). Major J. concluded that the 25 percent contribution found by the trial judge was a “material contribution” sufficient to meet the “but for” test. The term “material contribution”, read in context, does not detract from the fact that the Court in the end applied a robust, common sense application of the “but for” test, in accordance with Snell.

[28] By inference, I find on the balance of probabilities that Summerland’s failure to inspect for snow and ice was a cause of Ms. Scheck’s slip, fall, and injury, and order Summerland to pay damages to Ms. Scheck, to be assessed or agreed.

“The Honourable Mr. Justice Johnston”