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Tuesday Morning Case Bites for November 13, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Radovanovic v Dubensky, 2018 ABQB 890
Slip and Fall l Occupier’s Liability Act l Negligence l Homeowner l Snow Removal Contractor

Allen v Telfer, 2018 ABQB 876
Undertakings l Broad Request l Transcripts and Medical Records from prior Litigation l Particularize Special Damages

Radovanovic v Dubensky, 2018 ABQB 890

The Plaintiff health care aid worker brought a claim for injuries from a slip and fall, and was unsuccessful at trial. She slipped on steps as she exited her patient’s home. The Plaintiff had been to the home earlier that day, and had been providing heath services for over a year at this location. The Defendant patient was elderly, and due to declining health, retained a snow removal contractor, who attended at the premises to remove snow on the date of the fall, and had put down a 25 kg bag of salt. The Court accepted that the steps may have been unsafe at the time of the fall, because of the weather conditions.

[41] Applying the test to the facts of this case, Ms. Radovanovic must prove that the steps leading to the house were in an unsafe condition. Her evidence was that she slipped and fell on the steps, and that upon placing her hand on a step to get up, her hand slipped, clearing away the snow, exposing thick ice, described as white and about two inches thick. She further testified that although there was a section of the steps that was cleared, they were not fully cleared, as there was still snow on the sides of the steps. Her evidence was that she did not observe any, or the presence of any, salt or melting agent.

[42] Given the weather conditions on the day in question, and the fact that it continued to snow after Triple R attended the premises to clear the snow, I am satisfied that the steps leading to the premises may have become slippery, and thus were in an unsafe condition.

Although the court felt that the contractor was mistaken in his evidence that he put a full 25 kg of salt down, it did accept that the sidewalks were cleared, and about a quarter of a bag of salt had be laid down.

Given the evidence, the Court concluded that the Occupier had discharged her duty to the Plaintiff:

[47] Ms. Dubensky was not required to ensure that the steps leading to her home were absolutely free of snow and ice. The home is located in Edmonton: a winter city; it gets cold, it snows, it blows, and ice forms, resulting in slippery conditions. What the Court must determine is: was Ms. Dubensky, who was unable to attend to the snow removal herself and thus hired a professional contractor to remove snow and ice and to maintain the front steps leading to her home, negligent?

[48] I am satisfied that Ms. Dubensky took such care as in all of the circumstances was reasonable and was not negligent. She contracted snow and ice removal services from an experienced contractor recommended to her: Triple R. The agreement between Ms. Dubensky and Triple R, although verbal, specified terms that were reasonable in imposing a protocol for snow removal within a reasonable time of the snow falling, and the use of an ice melting agent.

[49] Although Ms. Moore’s evidence confirmed that she did not physically inspect the sidewalks after each occasion Triple R attended to the snow removal, both Mr. Remesz and Mr. Mendoza testified that Triple R’s standards required that snow and ice be removed, such that the bare concrete was exposed in all circumstances, and that specifically with respect to Ms. Dubensky’s home, salt was laid as a preventative measure on every occasion. Both Mr. Remesz and Mr. Mendoza were present at the premises on the date in question, and both confirmed that they exposed the bare concrete, that the steps were free of snow and ice, and that they applied salt. They both further testified that it was snowing while they were at the premises, and continued to snow after they left the premises.

Although the snow removal contractor did not keep detailed records, the Court accepted that the work was performed adequately. Further, it was not reasonable to expect an ailing homeowner to inspect the steps herself given her condition:

[53] Ms. Radovanovic is critical of the fact that Triple R did not keep detailed records of their snow removal efforts, including the date and time of their attendance, what they did when they attended, and whether or not they laid salt. While clearly it would have been useful to have such records available to the Court, I accept the evidence of Triple R that their policy was to, in all circumstances, remove snow and ice and expose bare concrete and lay salt where appropriate and, in the particular case of the Defendant’s home, always lay salt as a preventative measure.

[53] Ms. Radovanovic is also critical that Ms. Dubensky did not inspect the steps after the snow had been removed. I find that it is not reasonable to expect a homeowner, particularly given the Defendant’s health concerns, to go out and inspect the areas cleared each time Triple R attended. I am satisfied with Ms. Moore’s evidence that on prior occasions she had personally observed the snow being removed to bare concrete on the pad where she parked, and on the pathway where she walked, and that she observed the condition of the front steps from the front window.

The Court also noted that if liability had been made out, the homeowner exercised due care under section 11 of the Occupiers’ Liability Act notwithstanding that she did not do a reference check or review the contractors policies:

[56] If I am wrong, and Triple R failed to properly remove the snow and ice and leave the steps in a reasonably safe condition, then I must determine if, in compliance with Section 11 of the OLA, Ms. Dubensky exercised reasonable care in the selection and supervision of Triple R, and that it was reasonable in all the circumstances that Triple R’s work should have been undertaken. Homeowners are required by municipal bylaws to keep their sidewalks and walkways clear of snow and ice, thus clearly it was reasonable for the Defendant to engage a contractor to undertake this work for her, given her limitations. I also find that the Defendant exercised reasonable care in selecting Triple R. The evidence was that Triple R performed landscaping work for the Defendant during the prior Spring, and that Triple R was recommended to her by a neighbour, who also retained Triple R to perform snow removal.

[57] Ms. Radovanovic is critical of Ms. Dubensky because she did not undertake a reference check of Triple R, nor did she ask to review Triple R’s training, policies, and procedures. With respect, Triple R was engaged to do what many homeowners (and often the homeowner’s minor children), do themselves: shovel snow on their property to ensure safe access for visitors. There are no unique or special skills required to perform such work. It is not reasonable to expect Ms. Dubensky to make full investigations into Triple R’s training, policies and procedures, or to make detailed inquiries into references. Ms. Radovanovic acted reasonably in hiring professional contractors to perform the snow removal duties, when she was unable to attend to them herself.

Allen v Telfer, 2018 ABQB 876

A defendant brought an Application to compel answers to questions that were refused at Questioning, and to provide answers to Undertakings that were refused. The defendant was mostly successful and costs were payable to the defendant forthwith. The Court highlighted the goals of the Rules of Court, and directed that even if an undertaking is too broad, that does not relieve a party from producing what is relevant and material:

[9] That is, if the objection is to produce an entire document, where only a few pages of it are relevant, or the request is to produce an entire file, where a portion of it is relevant, counsel for the witness being examined must reflect on the fact that if a portion of the those records are producible, they should have been produced in the first place.

[10] Accordingly, it is not an appropriate objection to say, “The request is too broad, therefore I need not produce any of the records sought.” Technically, the objection could be made that the request for production is too broad, and then the party being examined could provide a revised affidavit of records at a later date listing the records that are proper to produce, but that may simply delay matters. When further records are going to be produced, the opposing party is entitled to examine on them. Why not focus on what will be produced, see if an agreement can be reached as to the parameters, and give the appropriate undertaking? That would seem to be the best way to comply with rule 2.2(d) in the circumstances.

In terms of insurance documents, the Court noted that those are within the power of a Plaintiff to produce:

[25] In my view, subject to the possibility that the insurance company might make an objection, which can be dealt with under the Personal Information Protection Act, the personal information held by the insurance company is within the power of the plaintiff Mr. Allan to produce.

The Court was critical of the argument that a party could not control the production of documents in the hands of another entity.

Ultimately, the Court directed that transcripts and medical records from prior litigation be produced:

[62] In this case, it appears that the prior MVA action records are in the possession of plaintiff’s own counsel, since the same counsel represented him in those actions. In any event, the documents from the previous lawsuits, in particular the transcripts, medical records, and expert medical opinions prepared on behalf of the plaintiff in those actions are directed to be produced. (I am advised that the expert reports have already been provided.)

The Plaintiff was directly to produce the relevant an material portions of the Section B file,

[64] Requiring the plaintiff to produce the entire file of the insurer is overly broad, for the same reasons apparently in the mind of the Court in to Nagtegaal v Stad. However, the plaintiff is directed to request the file of the insurers and to provide them to his counsel so that counsel may determine what portions of those files are relevant and material to this claim, in light of the comments I have made in this memorandum. In particular, the insurer’s expert opinions, if they exist, are to be produced.

Maintenance records were not considered to be in the Plaintiffs’ control. The Plaintiff was required to produce his WCB file. Further the Plaintiff was required to provide particulars of the out of pockets claim notwithstanding that the undertaking required the Plaintiff to create a record:

[68] The objections to producing these records largely revolves around the assertion that providing a breakdown of special damages, with supporting receipts, requires the plaintiff to create a record, and that is inappropriate. A similar complaint is made about providing a breakdown of the dates in which the plaintiff was employed since the accident, including the name of the employer or contractor he was working for as well as the rate of pay. This complaint is also used to explain the refusal to provide a breakdown of WCB benefits that were paid out to the plaintiff.

[69] Questions about the plaintiff’s damages are proper questions to ask at a questioning, and they are routinely answered by most counsel by way of written undertaking response, rather than requiring the plaintiff to guess, and rely on memory, or go away, find the various receipts that should have been produced in the first place, memorize dates when work was done or not done or help was received or not received and other information that is not clearly recorded in the records, and then provide the information in a continuation of the examination.

[70] Competent counsel would never go to trial without details of special damages identified and organized either in a binder or in a tab in a larger binder of agreed exhibits, so as to avoid a trial judge having to deal with loose unorganized pieces of paper. It is appropriate to request that sort of organization at the questioning stage.

[71] With the foundational rules in mind, it has now become clearly appropriate to insist on an undertaking of this nature. Of course if damages, loss of income, housekeeping expenses, and other details continue to expand before trial, then of course the plaintiff can provide revised information from time to time. That is consistent with the ongoing obligation to produce relevant and material records.

The Court was also critical of Plaintiff cousnel’s refusal to answer questions on the basis that they had already been answered:

[72] (a) You hadn’t looked in your rearview mirror prior to the accident and noticed the defendant’s vehicle? The reason given for the objection is that the plaintiff had already answered that he first saw the defendant’s vehicle after he was struck. I set out my views about the “asked and answered” objection in Allan v Epp, 2018 ABQB 85 (CanLII) starting at para 65. It is appropriate for questioning counsel to approach important topics from a couple of directions. This question focused on whether he had looked in his rearview mirror, although it included the question as to whether he had seen the defendant’s vehicle, but the question is not objectionable. It must be answered.

Although the Court directed that some questions need not be answered, costs were awarded to the Defendant payable forthwith.