Canada: Summary Dismissal Unsuccessful When Respondent Has Expert Evidence

In Bundschuh v. MacDonald Development Corporation, 2018 ABQB 188, Master Mason dismissed a summary dismissal application brought by one of the defendants because the plaintiffs served a Standard of Care Report raising a triable issue.  In Bundschuh, the plaintiff alleges she slipped and fell five years ago on snow and ice on a pathway in her neighbourhood.  Several defendants were named including the developer, the property manager, the municipality, the home owners association and the maintenance contractor.  The maintenance contractor was responsible for the maintenance of the pathway, and as a result of maintaining that pathway clear of snow and ice, they applied for summary dismissal of the claim against them.

Master Mason considered all the arguments presented by the contractor and ruled upon each of them.  The contractor argued that it was not an occupier and thus could not be responsible for the plaintiff's accident under the Occupiers' Liability Act.  Master Mason agreed. 

However, while the contractor argued that it was only responsible for the removal of snow under the contract, Master Mason disagreed.  There was evidence indicating the contractor had gone above and beyond the contract and was addressing ice on the pathway as well.  Accordingly, Master Mason was not prepared to dismiss the claim against the contractor just because the contract did not expressly refer to ice. 

The contractor presented evidence that on the days leading up to the accident, very little snow had fallen.  Nonetheless, the contractor had attended for approximately three to 12 hours clearing snow and applying salt to patches of ice.  While Master Mason first thought that this set of activities resembled a reasonable system of maintenance, she was referred to the plaintiffs' expert evidence.  The plaintiff hired an accident reconstruction engineer who opined that the maintenance activities of the contractor made matters worse.  Specifically, because the contractor was clearing snow all the way to the bottom of the pathway, this contributed to the formation of ice.  Due to the weather conditions, there was a freeze-thaw cycle at the time of the accident.  In addition, the expert felt that without the continual use of salt, ice formed. 

The contractor argued that the expert had made assumptions that were not based on observations, but rather only a review of photographs taken one month and two months after the accident.  The expert had also not made a personal visit to the site of the accident.  Master Mason did not think these steps were necessary.  She said often times an expert is provided with pictures and must assume the truth of the facts supplied.  While the contractor argued that the pictures were taken after the accident when no maintenance was being done, and that the statements from the plaintiffs that the pictures accurately depicted the conditions of the pathway at the time of the Accident were self-serving, Master Mason disagreed. 

Master Mason was not willing to summarily conclude that the contractor's winter maintenance system was reasonable.  Interestingly enough, the plaintiffs applied for a summary judgment.  That application was also dismissed as a wide variety of outcomes could result at trial, including apportionment of liability amongst the other defendants and a finding of the plaintiffs' contributory negligence.

There are two propositions Bundschuh stands for.  First, even though a contract will specifically direct a contractor to clear snow and not ice, there is risk that if the contractor takes any steps outside the scope of the contract, there will be a finding that the contractor assumed more responsibility for the area they were hired to maintain.  Second, when applying for summary dismissal, there is risk that a respondent will file expert evidence which could serve to raise a triable issue such that the Court is unable to summarily dismiss the action.

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Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms .

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