In this recent decision, the court had to contend with a slip and fall personal injury claim where neither the plaintiff nor the defendant led expert evidence on the standard of care required of a property maintenance company and of a snow removal company that were taking care of a mall.
In tort cases, where standard of care is always an essential element, the courts often have to grapple with whether the standard of care is too scientific for them to decide without expert help or assistance, versus situations where they can apply common knowledge and common sense to define the standard of care, and whether it has been met. The two polar extremes would be, for example:
- Medical malpractice torts: Where the courts have consistently required standard of care expert evidence to be tendered, unless in the most extreme cases where negligence is palpable and doesn’t require expert evidence (ie: plaintiff goes in for one operation and gets another, or surgical tools are left inside the body, etc). Outside those rare obvious medical mishaps (where negligence may be admitted in any event), the standard of care is generally outside general common knowledge and hence outside the scope of judges to assess and evaluate (see for example my prior blog entitled “Medical Malpractice Claims Will be Summarily Dismissed if no Liability Expert Evidence is Tendered”);
- Motor vehicle accident torts: Where the courts have consistently dispensed with standard of care expert evidence because the standard of care required of drivers and pedestrians is easily understood, and for the most part common knowledge. Daily personal experience helps shapes this knowledge.
Then there are certain possible grey areas: activities that the average Jane will have some experience throughout their lives, but perhaps not on a professional or regular basis. In terms of snow and ice removal, a lot of people have experience around their homes dealing with how snow behaves, how ice behaves, how to remove it, how to treat it, and this experience transcends into dealing with snow and ice on sidewalks, roads, and parking lots.
But very few people remove and treat snow and ice on a professional level, or on a large scale. Does this then require some expertise when the lawsuit is about removing snow and treating ice in a large facility on a professional level? This was a significant issue in this recent decision because the defendants asked the court to draw a negative inference against the plaintiff for their failure to call an expert to opine on the best practices concerning salt application. In support, the defendants relied on Parkinson v. The Corporation of The City of Brampton et al., 2015 ONSC 7241, where the court considered it necessary to have an expert report on the standard of care where the weather on the day of the slip and fall was contentious.
In response to the defendant’s request to rule against the Plaintiff for failing to tender expert evidence on standard of care, the judge said the following (at paragraph 43):
“… it was open to either party to call expert evidence and neither chose to do so. Expert evidence could have been helpful, but, it in my view, it is not mandatory. In this case, I am satisfied the court can take a “common sense” approach as suggested by Perell J in Nandlal approach based on the available evidence.”
The judge proceeded to apply a two part analysis: First, did the defendants have a reasonable snow removal and ice control procedure in place, and second, did they carry it out. After reviewing all the evidence, the court concluded that the defendants did have a reasonable snow removal and ice control procedure in place. The second phase of the analysis was to determine whether the defendants took sufficient steps to comply with their procedure. According to the judge, the defendant failed: it was expressed this way (starting at paragraph 105) in relation to the slip and fall accident that occurred at 8 a.m. when the plaintiff arrived at the mall for work:
“The mall is a commercial premise frequented by clientele, employees and workers on a regular basis. The defendants were aware that the mall doors opened at 7 a.m. and that mall users would be in attendance. The contract guidelines stipulated a timeline of 7 a.m. to complete the snow maintenance and people do commence arriving at the mall after that time.
…
I find there was negligence on the part of the defendants in their omission to apply the salt in a timely manner which caused a dangerous icy surface to form in the parking lot. This created an unreasonable risk of injury by slipping and falling.
I find on the balance of probabilities that this dangerous parking lot condition maintained by a commercial contractor was the proximate cause of the plaintiff’s slip and fall and resultant injury.
But for the salting deficiencies and build-up of salt, I find that on the balance of probabilities, the plaintiff would not have fallen. I am satisfied that on a balance of probabilities that had the salting operation been conducted in a more timely and careful manner in the circumstances in this case, the fall and resultant injuries would not have occurred.”
Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc600/2023onsc600.html