The obligation of mall owners to maintain their propertyThe obligation of mall owners to maintain their propertyhttp://chad.ca/en/members/professional-practice/industry/commercial-lines-insurance/152/the-obligation-of-mall-owners-to-maintain-their-propertyobligation entretien

This summary does not constitute a legal opinion. The information it contains may not reflect the current state of the law..

By Me Caroline Tremblay, Gilbert Simard Tremblay, LLP

Over the past few years, shopping malls have begun appearing throughout Quebec. In a recent judgement1, the Quebec Court of Appeal ruled on mall owners’ obligations with respect to maintenance and safety as well as on the burden of proof required to hold owners liable for accidents.

On March 15, 2008, Mario Castro and his daughter went to the mall. A thin layer of snow lay on the ground. As Mr. Castro was walking down the aisle between two rows of cars, he lost his footing, slipped and injured himself.

In the wake of his fall, Mr. Castro sued the owner of the mall for negligence, alleging that the owner had failed to spread an abrasive mixture on the slippery patches of ground in the parking lot. The owner called in warranty M.Y. Desjardins Inc., its parking lot maintenance company.

 

The Superior Court Judgement

According to the evidence adduced at trial, the parking lot had approximately 1,200 spaces. During the winter, M.Y. Desjardins Inc. was responsible for parking lot maintenance. Security guards were also on-site, in particular to ensure sidewalk and parking lot safety. If an area looked icy, they would spread an abrasive mixture. If they saw that a large patch of ground was icy, they would follow procedure and call their supervisor to arrange to have a representative of M.Y. Desjardins Inc. come and spread additional abrasive.

The on-site security guard testified that on March 15, 2008, he did not notice anything out of the ordinary in the parking lot. His report did not mention that any additional abrasive material had been spread. M.Y. Desjardins Inc.’s representative testified that when he had to clear snow or ice from his clients’ property, he always started with the mall, since the parking lot had to be safe very early in the morning for both the grocery store and the restaurant that served breakfast. M. Desjardins also testified that he visited each of his clients during a snowfall and that snow-clearing teams remained on-site until the snowfall had ended. Finally, when his teams finished clearing the snow and spreading the abrasive material, Mr. Desjardins would re-visit every site to make sure that it was safe.

Justice Arcand stressed the fact that in order to hold the owner liable, it was not enough to prove that the fall was the result of ice on the ground, but also that the area had been poorly maintained.

The trial court judge concluded that Mr. Castro had not proved that either the mall or M.Y. Desjardins Inc. were at fault and had therefore not met the burden of proof. Rather, the evidence showed that he knew that the ground was slippery, having admitted that he saw so before getting out of his car. Furthermore, according to the judge, Mr. Castro should have been even more careful, since he was only wearing shoes. The court thus dismissed Mr. Castro’s complaint, concluding that his fall was simply an unfortunate accident for which the mall and M.Y. Desjardins Inc. could not be held liable.

 

The Court of Appeal Judgement

Before the Court of Appeal, Mr. Castro pled that Justice Arcand had imposed a burden of proof on him that was not his to meet. He believed that from the moment it had been established that the parking lot was icy, that there was no abrasive material and that the temperature had remained stable during the days preceding his fall, it was up to the respondents to conclusively prove that the area had been properly maintained.

In the opinion of the Court of Appeal, the trial judge had not erred with respect to the burden of proof. There was no reverse onus and no presumption of law could be drawn from the simple presence of ice in the parking lot. The owner’s liability could only result from a wrongful act that he or his employees had committed. It was up to the complainant to show a causal link between the wrongful act and his accident.

The Court of Appeal believed that the evidence presented at trial showed that there was ice at the spot where the complainant fell, but not throughout the parking lot, which would have been an indication of poor maintenance. The presence of an icy patch in a 1,200-space parking lot where vehicles were constantly arriving and leaving could not lead one to assume that maintenance was poor since it was obviously impossible to clear every centimetre of ice from the ground. The Court of Appeal therefore dismissed Mr. Castro’s appeal and upheld the judgement at trial.

 

Conclusion

As the Honorable Justice Taschereau wrote in the Garberi2 case: :

In our country, where bad weather occurs frequently throughout the year [and] where winter temperatures change abruptly, one can obviously not expect to be as safe on the sidewalk as are those who live in milder climates. [unofficial translation]

Due to the very nature of our winters, falls on slippery patches are unfortunately quite common and are not necessarily the result of poor maintenance. In the Castro judgement, the Court of Appeal reminds us that evidence of ice and a lack of abrasive material alone are not enough. The evidence must also show that the owner was negligent in the upkeep of the parking lot. Otherwise, he cannot be held liable for damages incurred as a result of a fall.

 

1. Castro v. 4258649 Canada Inc., 2013 QCCA 917.

2. Garberi v. Montreal (City of), [1961] SCR 408.

8/14/2014 8:23:02 PM