In Wiseman v. Carleton Place Oil Inc., 2014 ONSC 1987, the Ontario Superior Court of Justice addressed the summary judgment motion brought by the two remaining Defendants in a case involving a slip and fall in a Tim Hortons parking lot. The Plaintiff alleged that she broke her wrist when she slipped and fell on accumulated snow along the curb of the drive-through lane. The owner of the parking lot took the position that they had satisfied their duty of care by contracting out for snow removal on the premises. The snow removal contractor argued that they had performed all their contractual obligations on the day of the incident.
After summarizing the law on summary judgment as set out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Justice Pedlar held that there were genuine issues requiring a trial in respect to whether the owner was negligent in designing a parking lot that required customers to step over the drive-through curbing to get into the Tim Hortons, and whether the owner had an adequate plan for snow removal in place around the drive-through curbing. In considering the principles of timeliness, affordability and proportionality, Justice Pedlar held that he was not prepared to exercise his fact-finding powers under the circumstances. This Simplified Procedure action was not particularly complex and the issues regarding the owner’s negligence may be heard and resolved in a one day trial.
On the other hand, Justice Pedler found that there was no evidence that the snow removal contractor had failed to fulfill the specific terms of their contract with the owner. The contractor had plowed the parking lot in the morning as required. The contractor was not required to hand shovel around the drive-through curbing or to inspect the parking lot. After considering the evidence, Justice Pedler held that there were no genuine issues requiring a trial and dismissed the claims against the snow removal contractor.
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