Guichard c. Domaine de Parc Cloverdale			2016 QCCS 1384
JP1900   SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF		MONTREAL
No:	500-17-055228-095
DATE:	MARCH 30, 2016
____________________________________________________________________________
BEFORE THE HONOURABLE MR. JUSTICE MARK G. PEACOCK, J.S.C.
____________________________________________________________________________
JACQUES GUICHARD
Plaintiff
v.
DOMAINE DE PARC CLOVERDALE
Defendant/Plaintiff in Warranty (the “Landlord”)
v.
DANIEL DA SILVA
Defendant in Warranty (the “Contractor”)
-And-
SOCIÉTÉ DE L’ASSURANCE AUTOMOBILE DU QUÉBEC
Impleaded Party (the SAAQ)
____________________________________________________________________________
JUDGMENT
____________________________________________________________________________

Introduction

[1]   This is a wintertime slip and fall case. The Plaintiff alleges he suffered serious injuries when he slipped on ice, hidden by snow, in his apartment parking lot while removing snow from his car rear window. He blames the Landlord for negligent maintenance

[2]   The Landlord in turn denies all liability but argues in the alternative that any liability is the sole fault of the snow and ice removal Contractor.  Also in the alternative, the latter two parties allege the Superior Court has no jurisdiction since this incident is governed by the no-fault Quebec auto insurance regime.

[3]   Proof of the fall and the injuries involve numerous factual and legal questions, including the Plaintiff's pre-existing medical condition, past work record to calculate future damages and disputes between medical and actuarial experts. The headings, under which these questions are analyzed, are outlined in the attached index (Annex A).

Factual Context

[4]   Up until December 28, 2006, it had been a relatively green Christmas time. That morning, however, as the Plaintiff walked to his car, there was a light coating of snow on the walkway and in the parking lot of his apartment complex in Pierrefonds, Quebec. Before starting to remove the snow from his car, the Plaintiff got in, started his vehicle, and turned on the air-conditioning so as to remove the humidity in the vehicle. He then got out to remove the snow from the vehicle to drive to work. The Plaintiff cleaned the hood and roof of his car without incident. It was when he started to clean his rear window that the Plaintiff alleges he fell on ice hidden by the snow[1].

[5]   The Plaintiff asserts that he in fact fell getting up two more times—three in all—before he was able to safely regain entry to the vehicle.

[6]   In the ensuing weeks, he was overcome by paralysis in his legs, for which he was hospitalized.

[7]   He underwent surgery on his spinal cord which provided limited relief but still left him wheelchair-bound for the rest of his life.

[8]   As a child, the Plaintiff suffered from cerebral palsy. Throughout his younger life, he was plagued by a series of medical issues, which, in the main, he overcame. He enjoyed physical activity, particularly walking and bicycling (and for a period of time, martial arts).

[9]   While he walked with certain instability, he only needed a cane for balance when he walked more than a kilometre.

[10]       From the February 2007 surgery, the Plaintiff has been confined to an electric wheelchair where, as a left-handed person, he only has use of his left arm and hand to approximately 40% of their capacity; both of his legs and his right arm are paralyzed.

[11]       Shortly before the expiry of the 3-year prescription period, he initiated these legal proceedings against the Defendant Landlord (the “Landlord”) claiming that his fall was caused by the Landlord’s negligent maintenance of the parking lot.

[12]       In its written defence, the Landlord denied liability and alleged, amongst other things, that the Plaintiff was the author of his own misfortune, particularly because of his pre-existing unstable mobility. In addition, the Landlord took an action in warranty against the snow and ice removal Contractor for the sidewalks and parking lots of the Landlord’s 3200-person apartment complex.

[13]       For this part, the Contractor denied liability and both he and the Landlord asserted that the incident constituted an “automobile accident” under the Loi sur l’assurance automobile and was thereby a “non-fault” claim within the exclusive jurisdiction of the Société d’assurance automobile du Québec (“SAAQ”). On November 27, 2013, Mr. Justice Bénoît Emery disallowed the Defendant’s interlocutory application to dismiss the Plaintiff’s claim based on this argument. Nonetheless, this issue was raised again on the merits and will be analyzed later in this judgment.

The Plaintiff

[14]       The Plaintiff was born on […], 1965. He was 41 years old at the time of the incident on December 28, 2006. At the time of trial, he was 50 years old.

[15]       There was no evidence of the Plaintiff’s work activities prior to his attendance at the University of Sherbrooke where he obtained the following diplomas:

a.   successful completion of the « Microprogramme de qualification au certificat d’administration des affaires » awarded on December 19, 2001;

b.   successful completion of the « Certificat d’administration des affaires » awarded on December 20, 2002;

c.   successful completion of the « Programme de formation continue en toxicomanie» certificate awarded on July 19, 2004; and

d.   successful completion of the « Certificat de toxicomanie » awarded on December 23, 2004.

[16]       Following the completion of these diploma courses, the Plaintiff was employed at different office jobs in Sherbrooke, Quebec. At the time of the incident, he was living in Pierrefonds and was working as an office manager for a financial services company in Laval, completing a one-year probationary employment period beginning on March 1, 2006.

[17]       The Plaintiff married his Wife, Ms. Diop, on September 11, 2004 in Senegal. At the time, she was working in France. Following immigration formalities, she finally came to reside in Canada almost two years later around March 18, 2006. Ms. Diop[2] was born on […], 1957. At the time of the accident, she was 49 years of age and at the time of trial she was 58 years old.

[18]       The couple lived in a 4½ second floor unit in the apartment complex owned by the Landlord.

[19]       The Plaintiff owned a four-door GM Cavalier motor vehicle for which he rented a specific outdoor parking space located directly in front of his apartment building for $10 per month. The 12-month lease for the apartment and the parking space began on June 1, 2006.

The Defendant

[20]       The Landlord is a not-for-profit corporation that owns the extensive apartment complex including the apartment building. In the relevant period, the Coop Cloverdale (the “Cooperative”), a not-for-profit residential cooperative, incorporated the Landlord as a not-for-profit organisation to allow it to purchase the privately owned Domaine Cloverdale. The ultimate goal of the Cooperative was to eventually join both entities into one housing cooperative. At the time of this incident, the Cooperative part of the apartment complex had 243 units while the Domaine part had 491 units, with a total of approximately 3,200 residents in all. The Plaintiff and his Wife lived in the Domaine part of the complex.

[21]       The Landlord’s Director General, Mr. C. Roberge, testified that many of the residents were lower income families with three to four children.

[22]       The Cooperative acquired the Domaine at the end of 2005. A board of directors that was composed exclusively of Coop residents administered both the Coop and Domaine properties.

[23]       The apartment building in which the Plaintiff and his Wife lived had three stories.

[24]       While the Domaine Parc Cloverdale was not a cooperative, Mr. Roberge indicated that a “spirit of cooperation and collaboration” amongst the tenants was encouraged in a manner similar to that of the Cooperative. An aspect of this spirit can be seen in the minutes of a January 23, 2006 meeting of the board of directors of the “Coopérative d’habitations Village Cloverdale - Domaine Parc Cloverdale” prepared by Mr. Roberge:

« 12.2. Piques à glace et pelles d’acier : Toby Staples (Editor’s note : one of the directors) demande que la Coop fournisse des piques à glace et des pelles en acier aux résidents pour que ces derniers puissent briser la glace sur les trottoirs et stationnements - les pelles dont disposent les résidents ne sont pas assez rigides pour briser la glace. Il est entendu que la Coop en aura de disponibles et les prêtera au besoin aux résidents qui en font demande.

Résolution CA-2006-007 : Proposée par Toby Staples et appuyée par Abdullah Diarrah. Que la Coopérative circule une note auprès des résidents les invitant à se procurer un pique à glace et une pelle auprès du bureau ».

[25]       Consistent with this “spirit of collaboration”, the Plaintiff’s pre-printed lease required him to remove the snow from the “balcony and stairs”[3] while the Landlord was required to remove the snow from the outdoor parking lot and the entrance to the apartment building.[4] Rent was $590 per month for the apartment and $10 per month for the designated outdoor parking space.

[26]       While the Landlord denied all liability to the lawsuit instituted on December 23, 2009, it alleged, by action in warranty dated September 28, 2010, in the alternative that if the Landlord were found liable to the Plaintiff, the Landlord requested that the Contractor take over its defence and indemnify the Landlord for any damages awarded to the Plaintiff. The Landlord requested this relief since snow removal and de-icing were the responsibility of the Contractor under an undated « contrat de déneigement » between the Landlord and the Contractor but covering the three winter seasons: 2006-2007, 2007-2008, and 2008-2009 (the “Contract”).

The Third Party

[27]       The Contract required the « déneigement et déglaçage des stationnements et des trottoirs du Domaine Parc Cloverdale » for certain specific named streets which included the parking lot of the Plaintiff’s apartment building.

[28]       For the annual sum of $30,673.34 (including all taxes), the Contract required:

28.1. « les stationnements seront déneigés avant 6:30 h et encore avant 17:00 h;

28.2. durant la journée les stationnements devraient être libres entre 11:30 h et 1:45 h pour le déneigement complet, si possible;

28.3. les trottoirs mentionnés seront déneigés avant 5 :30 h et encore avant 17: 00 h ».

[29]       While the Contract services were to start as of the first snowfall, there was no indication as to the amount of snow that was required to fall or ice needed to accumulate before the Contractor was to perform his services.

[30]       The Contractor, Mr. Daniel Da Silva was 28 years old in 2008. He had been working in snow removal since he was 15 years old and had run his own snow removal business since 2003. He had five employees including himself.

[31]       Mr. Roberge testified that none of the Landlord’s employees were responsible for supervising the snow removal and de-icing with the Contractor.

[32]       At trial, it was common ground between the Landlord and the Contractor that, although not specified by the Contract, the Contractor was not required to undertake snow removal until 5 cm of snow had fallen. The Contractor removed the snow in the parking lot with a tractor that had a plough on the front. Thereafter, salt was spread using a heavy-duty six-wheel truck that was driven by Mr. Da Silva himself. From the driver’s position in the cab of this truck, Mr. Da Silva controlled how, when and where the salt (carried by the truck) was spread. The salt was spread in a circular pattern from behind the truck by a gravity-fed rotary spreader.

[33]       If there was an open space between parked cars, the Contractor was able to spread salt into the space. When the cars were parked beside each other, there was insufficient space for the Contractor’s equipment to get between the cars to either shovel the snow, or spread salt since the flying salt from the spreader would damage the paint on the cars.

[34]       For the Landlord’s sidewalks, Mr. Da Silva used a small tractor with a 54-inch wide blade which had a box containing salt that was spread from the back of the tractor.

[35]       The parking lot used by the Plaintiff was entered from Alexander Street and ran in an east-west direction. The parking spaces allotted to the Plaintiff’s building were situated in the southwest sector of the parking lot.

The SAAQ

[36]       Counsel for the SAAQ was in attendance throughout the trial. The SAAQ was added as a Mise-en-cause by the Landlord in its Amended Motion to Dismiss dated October 30, 2013. SAAQ counsel was provided with the opportunity to question every witness and to provide a closing argument. No witnesses were called on behalf of the SAAQ.

Liability

Legal Obligations: Landlord Tenant

Governing Law: (a) Provisions of Residential Lease, (b) C.C.Q. Suppletive Articles and (c) Jurisprudence Regarding Landlord's Obligations for Snow and Ice Removal

 

[37]       The Lease[5] constitutes the sole residential rental agreement. As noted, the Landlord assumes the obligation to remove the snow both from the parking lot and the entrance to the apartment building.

[38]       The Landlord’s obligation for maintenance is confirmed by C.C.Q. art. 1854 which requires that the Landlord deliver the leased property in a good state of repair in all respects and to “maintain the property for that purpose throughout the term of the lease, i.e. for the purpose for which the property was leased”.

[39]       As a tenant, the Plaintiff benefits from the stipulation on his behalf (C.C.Q. arts. 1444 and 1445) contained in the Contract to the effect that both snow removal and de-icing will be undertaken by the Contractor.

[40]       The formation of ice on travelled walkways and roadways in Quebec creates an inherent risk to all Quebec pedestrians and drivers during the winter months.  The Court recognizes that context is critical when analyzing the parties’ respective obligations when pedestrians fall and injure themselves in icy conditions. As one might expect, the harshness of Quebec winters and the diverse climatic conditions that make walking difficult in the winter have produced an extensive body of jurisprudence. The following relevant principles are drawn from this body of jurisprudence.

[41]       Mr. Justice Pierre Ouellet in the case of Trudel v. Caisse Desjardins de Pohênêgamook[6] cites two leading authorities for the principles applying to property owners in matters of snow and ice removal:

[22]  Notre collègue, le juge Gilles Blanchet, traduit bien l’état du droit :

« Selon une jurisprudence on ne peut plus constante, toutefois, l’obligation du propriétaire des lieux en est une de moyens, et non de résultat.  Ainsi, il doit prendre tous les moyens raisonnables pour éviter qu’un accident ne se produise, mais il n’est pas pour autant l’assureur des usagers de son terrain et il n’a pas à pousser la perfection jusqu’à prévoir et à se prémunir contre la possibilité la plus lointaine et imprévisible d’accident.

Au Québec, en particulier, les accumulations de neige et les variations importantes de la température pendant la période hivernale engendrent souvent des conditions de circulation périlleuses pour toute personne circulant à pied ou en automobile.  Dans ce contexte, chacun doit faire montre de prudence dans ses déplacements.  Le propriétaire d’un établissement, par ailleurs, ne saurait raisonnablement être tenu de surveiller constamment ses voies d’accès ni d’y appliquer des mesures de sécurité allant au delà de celles que l’usager lui-même appliquerait à son domicile. » [10]

(Page 5)

[23]  Le juge André Forget, alors qu’il siégeait à notre Cour, résume ainsi les critères qui ressortent de la jurisprudence :

« Il n'est pas nécessaire d'en faire une étude extensive, tant sont connus les principes applicables en semblable matière; on peut en dégager un certain nombre:

1)     le propriétaire des lieux n'est pas l'assureur des personnes qui y circulent;

2)     la victime doit prouver une faute du propriétaire;

3)     le propriétaire est tenu d'entretenir les lieux de façon sécuritaire;

4)     cette obligation doit être appréciée selon la norme d'une personne normalement diligente et raisonnablement prudente;

5)     on ne peut toutefois exiger un degré de perfection;

6)     il faut tenir compte des conditions climatiques;

7)     on ne peut en hiver s'attendre au même degré de sécurité;

8)     les piétons ont, en hiver, une plus grande obligation de prudence;

9)     il y aura toujours des accidents, particulièrement en hiver, où l'on ne pourra imputer de responsabilité au propriétaire des lieux.

S'il faut absolument citer de la jurisprudence, on peut se limiter aux décisions de la Cour Suprême invoquées par les avocats des parties.  Dans l'affaire Garberi c. Cité de Montréal, il s'agissait d'une chute sur un trottoir d'une ville, mais les principes sont similaires.  L'honorable juge Taschereau s'exprime ainsi:

« … Dans notre pays, où les intempéries de nos saisons sont fréquentes,  où la température hivernale présente de soudaines variations, on ne peut évidemment pas s'attendre sur nos trottoirs à la sécurité dont bénéficient ceux qui vivent sous des ciels plus cléments.  Ces changements climatiques offrent toujours des dangers subits, dont ne peuvent dans tous les cas, être tenues responsables les municipalités.

Ce que l'on exige de ces dernières, ce n'est pas un standard de perfection. Elles ne sont pas les assureurs des piétons, et on ne peut leur demander de prévoir l'incertitude des éléments.  La vigilance simultanée de tous les moments, dans tous les endroits de leur territoire, serait leur imposer une obligation déraisonnable.  Il peut arriver, et il arrive malheureusement des accidents où s'exerce cependant très bien la surveillance municipale, qui résultent d'aucune négligence et pour lesquels il n'y a pas de compensation sanctionnée par la loi civile. … » [11]

10. Castro v. 4258649 Canada Inc., 2003 QCCA at 997

11. Supra, note 6 at para. 86.

 

[42]       The 2009 Court of Appeal case of Rivard v. Harnois et al.[7] involved freezing rain combined with descending temperature that went below freezing approximately 36 hours before the incident. There was also snowfall that covered an icy surface. The Court of Appeal divided liability between the plaintiff and the property owner, amongst other reasons, because the plaintiff had parked their vehicle in the lot the day before and as a result, was well aware of the difficult conditions.

[43]       In the 2009 case of E.M. v. Lagueux[8], the tenant was found to be the author of his own misfortune where: (a) he went out into a snow storm when he did not need to; (b) he knew that a substantial quantity of snow has fallen; and (c) he knew that there were difficult walking conditions when he left his front door. Additional relevant paragraphs from this 2009 judgment of Madam Justice Suzanne Ouellet are:

[59] En effet, lorsqu'il loue un bien, un locataire est en droit de s'attendre à ce que le seul accès possible en hiver soit correctement entretenu et ne présente pas de danger.  Le locateur doit prendre les mesures appropriées.

[61] De plus, le fait qu'un tiers soit chargé d'une partie de l'entretien ne libère pas le locateur de son obligation à l'égard du locataire: 

« Que le propriétaire charge ses locataires ou même un tiers d'exécuter cette obligation d'entretien importe peu.  Il reste responsable en principe à l'endroit de la victime, quitte ensuite à se retourner contre le locataire ou le tiers au terme de l'entente qu'il a pu conclure avec eux. »[40]

[63] Il s'agit de "moyens raisonnables pour assurer la sécurité des usagers"[42] en tenant compte toutefois des particularités de chaque affaire.

[65] Dans l'affaire Fortin c. Gestion Mimax Inc.[44], le juge Blanchet, j.c.s. rappelait ce qui suit :

« Au Québec, en particulier, les accumulations de neige et les variations importantes de la température pendant la période hivernale engendrent souvent des conditions de circulation périlleuses pour toute personne circulant à pied ou en automobile. Dans ce contexte, chacun doit faire montre de prudence dans ses déplacements. Le propriétaire d'un établissement, par ailleurs, ne saurait raisonnablement être tenu de surveiller constamment ses voies d'accès ni d'y appliquer des mesures de sécurité allant au-delà de celles que l'usager lui-même appliquerait à son domicile. »

[40] Stern c. Rutman, [1990] R.R.A. 235 (C.A.).  Cet arrêt a été cité dans Mathieu c. Carrier, [2005] R.R.A. 1069 (C.A.); voir également Lavoie c. Gaudreault & Noël, 2008 QCCS 1828.

[42]   Coutu c. Desjardins, EYB 2005-98642 (C.S.).

[44]   B.E. 2000BE-740 (C.S.).

                                                      (this Court’s emphasis)

 

[44]       The 2014 case of St-Pierre v. Québec (Attorney General)[9] involved a senior citizen who, prior to his slip and fall, had suffered important injuries to his legs as a result of previous falls, falls which required him to always walk with a cane. The Court found that in his particular circumstances, extreme prudence was required for his walking outside in the winter, which meant he should have taken a different and safer route.[10]

[45]       Finally, the Court relies on the 2006 judgment of Madam Justice Marie-Christine Laberge in St-Jacques v. Coopérative d’habitations Les gens heureux[11]. The relevant legal principles arising from this case are as follows:

a.  there was a defect in the construction of the sidewalk where the plaintiff fell, which permitted the accumulation of water. This defect had been known by the building owner for over ten years but nothing had been done to effectively correct the problem (para. 37, 38);

b.  where the building owner can reasonably presume that the tenants leave the premises every morning to go to work, the building owner has an obligation to maintain the ingress and egress to promote safe passage for the tenants (para. 49);

c.   where the building owner has the obligation to maintain the property, the building owner cannot shift this responsibility to the tenants and make them partially responsible for the damages resulting from their fall (para. 48); and

d.  where the Landlord knew or should have known that accumulations of water would collect and freeze due to defects in the sidewalk (or a parking lot) then a reasonable obligation was on the Landlord to prevent the formation of such ice so as not to compromise the safety of the tenants (para. 51).

[46]       The standard of care expected of the property owner always depends on the context. In the 2011 case of Castro v. 4258649 Canada Inc. et al.[12], the shopping center owner hired security guards to do an hourly inspection of the sidewalks and parking lot with the responsibility of applying an abrasive where any slippery area was of small dimension but for large areas required the presence of the snow removal company to spread abrasive. During snowfall, the snow removal company made regular inspections. The Court found that the actions of the shopping center owner and the snow removal company were reasonable and the plaintiff’s action was dismissed.

[47]       The additional legal principles established by the Court of Appeal in Castro v. 4258649 Canada Inc. [13] include:

a.   The plaintiff has the burden to prove the fault committed by the owner or its agents and the causal link between fault and the accident of the Plaintiff.  This burden of proof is not an easy one in the context of a Quebec winter (para. 10);

b.   A residential tenant has the right to have the sole access to the building maintained so that it does not present a danger (para. 59);

c.   The property owner’s obligation is one of reasonable means depending on the particular circumstances of the case (para. 62 and 63);

d.   The property owner is not obliged to undertake constant surveillance nor use more security than would a person apply to their own personal residence (para. 65); and

e.   The property owner must maintain the premises in a secure manner in the context of the climatic conditions but at the same time the tenant must be reasonably prudent and diligent and more so in winter (para. 77).

Of what, if any, Application is the S.C.C. Case of Rubis v. Grey Rocks?

[48]       The Plaintiff relied on the 1982 Supreme Court of Canada case of Rubis v. Grey Rocks Inn Ltd.[14] to allege that the ice under the snow where the Plaintiff fell constituted a “trap”.

[49]       In this case, the majority in the Supreme Court of Canada relied upon this legal concept of “trap” which is imported from the common law. The dissenting judges criticized the importing of the concept of “trap” into the civil law since the matter was fully settled by applying art. 1053 of the then Civil Code of Law of Canada.

[50]       Doctrine has criticized the importation of this concept of “trap” into Quebec civil law in relation to ice and snow surfaces and accordingly this Court will rely on the standard principles of negligence and will not rely on this concept.[15] 

How did the Fall Occur?

[51]       The Plaintiff was the only one present at the time of the fall in the morning of December 28, 2006. The Plaintiff’s examination on discovery of June 2, 2010 - approximately 3.5 years after the fall - was filed into the Court record. In addition, the Plaintiff testified at the trial on September 21, 2015, almost 9 years after the fall.

[52]       Unless otherwise indicated, the Court relies on the Plaintiff’s testimony on discovery since his memory should be clearer when he testifies closer to the actual time of the event. Where the Plaintiff did not testify on a particular point, his evidence at trial will be considered and any important conflicts in the testimony given at the two different times will also be analyzed. Where testimony from the examination on discovery is used, reference to page and line are provided in the footnotes.

[53]       On the day prior to the fall (December 27, 2006), the Plaintiff and his Wife arrived home between 18:00 and 19:00 and parked their car in their designated spot. At trial, the Plaintiff testified that he stepped out of the vehicle onto the pavement; there was neither snow nor ice on the pavement.

[54]       On the morning of December 28, 2006, the Plaintiff left his apartment on the second floor at approximately 07:40. As the office manager of the financial services company for which he worked, one of his tasks was to open the office in the morning before the other employees arrived.

[55]       He was wearing heavy-duty winter snow boots with a sturdy lug rubber sole.

[56]       To get to his car, he had to walk down the walkway from the apartment building, turn left on a short stretch of sidewalk and then go between his vehicle and that of his neighbours, which was parked in the adjacent parking spot to the west of his vehicle. He did not feel it was slippery as he went to the car since he was wearing winter snow boots[16] although he did know « que c’était glacé pareil » because his Wife had told him.[17]

[57]       It took him approximately 10 seconds to undertake this walk to his car.[18]

[58]       He rolled his briefcase to the car on its self-contained wheels in his right hand (because it was heavy[19]) and held a mug of coffee in his left hand.

[59]       After removing some snow over the driver’s door, he entered the car and started it. He also turned on the air-conditioning so as to remove the humidity. He left his rolling briefcase behind him at about the location of the outside rear door. The front of the vehicle was closest to the apartment building.

[60]       After exiting the vehicle, he was able to clean the whole vehicle from the front including the hood, front windshield and roof, using a telescopic tool that had a brush at one end and a scraper at the other. He did all this snow removal from the driver’s side of the vehicle.

[61]       All of the work was being done using his left hand since he was left-handed. He had moved down his car to be level with the rear window so that he could clean it when he fell: « … les deux pieds m’ont parti »[20], essentially doing the splits and landing on his backside.

[62]       The Plaintiff was making his first pass with the snow-removing tool when he fell.[21] After he did “the splits”, he fell on his backside and then on his back[22]. When he tried to get up, he saw there was nothing but ice under the snow.[23]

[63]       As he tried to get up, he fell a second time.[24] Then, he testified: « J’ai tombé, puis j’essayais de me relever, puis je retombais ». In total, he fell three times[25], but the second and third times would have been from a lesser height since he was in the process of getting up.

[64]       Finally, he got into the car by crawling on his hands and knees to the front driver’s door since the backdoor was locked.[26]

[65]       He then backed up the vehicle and picked up his briefcase while he was still in the vehicle.[27]

[66]       One important discrepancy between the Plaintiff’s testimony on examination on discovery and his testimony at trial concerned the third fall. At trial, examined in chief, he said he remembers falling and hitting his head on his briefcase.

[67]       In his discovery, the Plaintiff does not have a clear recollection that he hit his head on the briefcase. In fact, in his own words, this would appear to have been his medical expert’s hypothesis[28]:

« Il (le “briefcase”) était encore dehors parce que c’est là-dessus que selon le médecin, que je m’ai … de la manière que ça s’est fait ».[29]

[68]       Hence, reviewing his exact words from the discovery, it was not the Plaintiff himself that remembered hitting his head. None of the contemporaneous medical reports following the fall, either on December 29, 2006 or afterwards on January 20, 2007[30], make reference to the Plaintiff hitting his head on the fall or having any concussion as a result thereof. In fact, the January 17, 2007 medical report states:

 

« Il glisse sur de la glace, impact sur fesse surtout côté droit. S’est relevé mais chute à nouveau sur la glace, s’est finalement relevé seul, a marché jusqu’à sa voiture, ne s’est pas cogné la tête, pas de perte de conscience. Chute accidentelle. Pas de prodrome. »[31]

(this Court’s emphasis)

 

[69]       Dr. L’Espérance, neurosurgeon testifying as part of the Plaintiff’s case, first interviewed the Plaintiff in early December 2009 - almost three years after the accident. In the interview, the Plaintiff said that he fell a second or third time and the doctor reported « …il indique à ce moment que la nuque lui aurait frappé soit sur son attaché-case soit sur la voiture à côté de la sienne. C’est là où il dit qu’il en a perdu « un petit bout »[32] ».

[70]       Since the Plaintiff’s memory of the events should be a lot clearer closer to those events, the Court accepts as fact his contemporaneous statements to various hospital staffs in which he never mentioned that he hit either his head or his neck during the fall.

[71]       Accordingly, the Court determines that over the years since the accident, the Plaintiff’s memory has failed him on this point. The Court determines that at no time in the fall did he hit his head on his briefcase or anywhere else.

 

Why did the Fall Occur: Condition of the Parking Lot Before and at the Time of the Fall

(i) Physical Condition: Due to Construction

[72]       In the present case, the uncontradicted evidence of the Contractor, Mr. Da Silva, was that in his original inspection of the parking lot used by the Plaintiff, Mr. Da Silva noted the following anomalies:

a.  that the parking lot was not sloped the proper way to permit appropriate drainage by manholes located in the centre of the parking lot. In fact, any slope there was, was contrary to what it should have been; and

b.  the parking lot had unfilled potholes that trapped water that froze in the winter.

[73]       Mr. Roberge, on behalf of the Landlord, conceded that in front of the Plaintiff’s apartment building the parking lot was not sloped but was flat.

[74]       Exhibit DG-8 at page 5 shows a photograph of potholes in June 2010. Mr. Da Silva indicated that the situation of the potholes was worse in the winter of 2006-2007.

[75]       A photograph taken by the Plaintiff from the window of his apartment, in the days around January 3, 2007[33], shows a very large width of ice stretching from the back wheel of the Plaintiff’s vehicle across an empty parking space to the back wheel of a vehicle two spaces west. What this photograph demonstrates is the improper drainage which permits water to accumulate and then freeze when the temperature goes down below freezing in winter.

[76]       Madam Justice Suzanne Ouellet, in the E.M.[34] decision, refers to such a situation. In her judgment, she cites with approval Professor Pierre-Gabriel Jobin:

[53] […] 

« Les tribunaux restent donc libres d'imposer au locateur résidentiel des devoirs qui ne sont pas prévus par une loi ou un règlement. »[35]

[54] Il écrit aussi:

« L'objet de l'obligation de sécurité du locateur est double […].  D'une part le locateur doit éviter une défectuosité quelconque, ou tout état de fait, présentant un risque caché et anormal pour l'intégrité physique du locataire ou de ses biens. »[36]  (accentuation ajoutée)

[35] JOBIN, P.G., Le Louage dans Traité de droit civil, 2^e éd., Cowansville, Les Éditions Yvon Blais inc., 1996, 409-410 repris dans Ouellet c. Société immobilière Arbois inc., 2007 QCCQ 13467 , p. 5.

[36] Pierre-Gabriel JOBIN, Le louage, Traité de droit civil, 2^e édition, Cowansville, Éditions Yvon Blais inc., p. 408.

[77]       The following factors created a duty of care for the Landlord. In the paragraphs that follow, the Court will analyse whether the required reasonable standard of care was met. Mr. Roberge indicated that the parking lot in question was constructed in or about 1960. Although the Landlord had only acquired the property one year prior to the incident, the fact remains that this improper drainage constituted an elevated risk for any of the tenants whose cars were parked where this water could accumulate, freeze, and then be concealed under a layer of freshly fallen snow.

[78]       The photographs[35] filed by the Contractor, taken in June 2010 are of little assistance in showing any slope.

[79]       However, the Plaintiff’s photograph[36] which shows the large patch of ice, confirms by implication that there was a sufficiently flat surface for water to accumulate and not drain away.

[80]       Mr. Da Silva also testified that there were numerous potholes that collected water and allowed it to freeze.

[81]       The Court has inspected photograph P-2-4 which showed the parking lot condition several days after the fall.  The date on the photo showing January 3, at 16:00 hours must be incorrect since the meteorological reports indicate it was too mild on that date to form ice.[37] 

[82]       The Plaintiff provided enlarged photographs of Exhibit P-2-4.  In particular photo P-2-5 shows the ice around the back door of the vehicle.  While the photo was not taken on the day of the accident, it does confirm inadequate drainage around the level of the back door of the Plaintiff’s vehicle and is corroborative that water collected and, with sufficient freezing conditions, formed ice.

[83]       The Court notes the difference between (a) the large areas of ice in the parking lot in photo P-2-4 with (b) the lack of much snow on the ground and the fact that there is little or no ice showing on the sidewalks.  This demonstrates that the sidewalks had better drainage than the parking lot.

[84]       Photograph DG-8-5, which shows evident potholes, supports Mr. Da Silva’s evidence that the parking lot was in bad condition with many potholes. However, there was no evidence to place any such potholes near the rear door of the Plaintiff’s vehicle at the relevant time.

[85]       No photos were taken by the Plaintiff on the day of the incident nor were there any photos taken on days preceding the incident.

[86]       The Court determines that inadequate and deficient drainage in the parking lot created the problem of the freezing ice in the winter upon which the Plaintiff slipped.

[87]       The Contractor knew of this problem and the Landlord should have known of this problem since Mr. Roberge was aware of the flat surface of the parking lot in question.  Such knowledge - real or implied - obligated the Landlord to take additional precautions, particularly in those areas where it knew or should have known that tenants would be walking to their cars to go to and from work. 

(ii) Physical Condition: Due to Meteorological Conditions

[88]       The Plaintiff testified that after he had fallen, he had observed that his fall was due to the presence of ice under the snow where he fell.  What do the Government of Canada meteorological reports show (Exhibits D-4A and DG-7)? Do they corroborate or negate the existence of ice?  The reports are from Montreal-Pierre Elliott Trudeau International Airport, which is located in the West Island of Montreal, as is the Plaintiff’s apartment building.  Looking at Exhibit D-4A for December 26, 2006, rain fell from 01:00 to 06:00 with the temperature decreasing from 3.7 degrees to 2.1 degrees Celsius. After 06:00, snow fell and the temperature hovered around the 0 degree Celsius mark. On December 26, 2006 there was a snowfall of 10.8 centimetres and a total precipitation of 1.62 centimetres.

[89]       At 23:00 on December 26, 2006, the temperature fell below 0 degrees Celsius, for the first time, to -0.5 degrees Celsius.

[90]       Accordingly, the rain that had already fallen would freeze as the temperature kept dropping below 0 degrees Celsius.

[91]       If there was proper drainage, the water could have drained away from the parking space of the Plaintiff; but given the condition of the parking lot, it did not.

[92]       The next day, on December 27, 2006, the temperature kept going down from -2.0 degrees Celsius at 01:00 to -7.6 degrees Celsius at 23:00.

[93]       From midnight on December 27, 2006 to 05:00, the temperature went from -0.9 degrees Celsius to -5.0 degrees Celsius.  As noted, the rain that had fallen previously would have frozen.  At 05:00 on December 27, 2006, snow was falling every hour from 05:00 to 22:00. According to Exhibit DG-7, there were but traces of snowfall on the ground on December 26, 2006 while there were 9 centimetres on the ground on December 27, 2006.

[94]       The Plaintiff was out with his Wife during the day and returned between 18:00 and 19:00 in the evening. When he parked his car, he stepped out onto bare pavement according to his testimony.

[95]       Although Mr. Da Silva has no records to confirm that he removed the snow on December 27, 2006, given the amount of snow that fell (as explained in para 93) and his general practice, it can be concluded on the balance of probabilities, that Mr. Da Silva removed the snow.[38]

[96]       It is important to observe with photo Exhibit P-2-4 that it shows no ice forming around the driver’s door at the front of the Plaintiff’s vehicle.  The presence of ice around the back wheel indicates that the area there was flat or slightly depressed and retained the water, while the pavement around the driver’s door had a slope that permitted the water to drain.

[97]       The Contractor testified that Environment Canada can be wrong in terms of its precipitation measurements but gave no evidence to substantiate this allegation.

[98]       The Court accepts the meteorological reports as the best evidence.  It prefers them to the Plaintiff’s testimony that on the morning of December 28, 2006 there were 2-3 inches (5.08 cm - 7.62 cm) of snow on the roof and 3-4 inches (7.62 cm - 10.16 cm) of snow on the ground.[39]

[99]       In fact, the meteorological reports show that while the snow on the ground was 9 centimetres on December 27, 2006 it was only 3 centimetres more, i.e. 12 centimetres, on December 28, 2006.

[100]    From this analysis, the Court determines that from the time when the Plaintiff parked his car at 18:00 or 19:00 on December 27, 2006 the likely amount of snow that could have fallen by 07:45 on December 28, 2006 was in the order of 3 centimetres.

Plaintiff's Complaint to the Landlord

[101]    Mr. Ndala was a rental agent for the Landlord but was also the person to whom complaints were directed regarding snow removal. He confirmed that the Plaintiff was « une personne sympathique » with whom he spoke often.  However, Mr. Ndala also testified that the Plaintiff was prone to complain.

[102]    Mr. Ndala does not remember the specific incident of December 28, 2006.  In particular, he does not remember the Plaintiff complaining to him about the fall.  Under cross examination by counsel for the SAAQ, Mr. Ndala testified that the Plaintiff never told him about the fall, since if the Plaintiff had done so, Mr. Ndala would have made a written report as he was required to do.

[103]    On the other hand, Mr. Ndala did recall that the Plaintiff had made several complaints regarding snow removal and that, on one occasion Mr. Ndala did inspect an area which he circled in orange on photograph Exhibit P-2-4, which was essentially the area covering the Plaintiff’s designated parking space and the two parking spaces immediately to the west.

[104]    On that occasion, Mr. Ndala testified that there was snow in the parking lot and that no snow removal had been undertaken within that orange circle.

[105]    Mr. Ndala had a clear recollection of this particular inspection he undertook as a result of a complaint from the Plaintiff. The Court determines that this particular inspection must have occurred during the month of December 2006 due to the Plaintiff’s lack of mobility after the fall.

[106]    The Court concludes that on the balance of probabilities, this particular inspection is most probably the inspection connected with the fall.  The Plaintiff has a very clear recollection of this inspection by Mr. Ndala and this is expressed in his examination on discovery on June 2, 2010— immediately after falling, the Plaintiff went to the rental office to complain and Mr. Ndala came to inspect. This is consistent with Mr. Ndala’s evidence that the Plaintiff was prone to complain regularly to him.  Given such a proclivity to complain and the fact that the Plaintiff had multiple falls on the same spot, this corroborates the Plaintiff's own evidence that the Plaintiff complained immediately. The Court concludes that since Mr. Ndala’s testimony at trial was almost 9 years after the event, he must have forgotten about the Plaintiff's falls and also forgot to note the complaint at the time.

Snow and Ice Removal Operations of Landlord in State of Transition

[107]    Snow removal for the Domaine parking lots in December 2006 was in a state of transition: (a) this was the first winter for the Landlord to have a snow removal contract with the Contractor.  The addition of the Domaine property to the Cooperative's landholdings had increased by 200% the number of units for which the Landlord was responsible; (b) while the Cooperative apartments had had a “culture of cooperation”, the Domaine apartments were the usual residential tenancies without the same level of cooperative culture; (c) this was the first time that the Contractor had this particular snow removal contract; and (d) the lines of responsibility were unclear within the Landlord’s organization as to who was responsible to remove the snow and de-ice between the parked cars in the parking lot, as the following evidence demonstrates.

[108]    The two senior administrators testifying on behalf of the Landlord - Messrs Roberge and Ndala - had superior academic qualifications but less experience in the direct running of a 700-plus unit apartment complex.

[109]    The director general, Mr. Roberge, 63 years of age at trial, held a Masters degree in Urban Planning. Before this job, he was director of finance at Jeunesse Canada Monde.  He had already been appointed the director general for the Landlord when in December, 2005 the Cooperative (which had 243 units) purchased the Domaine (which had 491 units).

[110]    Mr. Ndala began as a rental agent for the Landlord in December, 2003.  He held a Masters degree in Economics from a university in South Africa.  For the combined total of 734 units, he was responsible for signing the leases and for managing any complaints made by the tenants.

Notices to Tenants to Remove Cars

[111]    Mr. Roberge testified that a large number of the tenants were either unemployed or retired, so that they left their cars in the parking lot all day.

[112]    At trial, Mr. Roberge confirmed that no information was provided to the tenants regarding how or when snow removal was to be undertaken. Mr. Ndala directly contradicted this testimony.

[113]    Mr. Ndala testified that in December 2006, if snowfall was expected during the night, written notices were put in the tenants’ mail boxes advising them to park their vehicles on the neighbouring city streets (which he said was legal) so as to facilitate the work of the Contractor to complete snow removal during the night when the parking lots were free of vehicles.

[114]    In general, Mr. Ndala’s recollection as a witness was better than that of Mr. Roberge and furthermore, he was the direct person that tenants reported to if they had problems with snow removal.

[115]    Accordingly, the Court accepts Mr. Ndala’s testimony of this practice. However, there is no evidence that any such notices were provided to the tenants on December 26, 27, or 28, 2006.

[116]    The Court concludes that the Landlord undertook to advise the tenants to remove their vehicles from the parking lot in advance of snow removal operations but that this undertaking was not met during the relevant period for this case.

Role of the Concierge and Role of Mr. Ndala

[117]    Mr. Roberge said that there were 8-10 “concierges” for the Landlord’s apartment complex.

[118]    Mr. Ndala said it was not the responsibility of the concierge to put salt or sand in the winter nor was it the tenants’ responsibility. However, it was Mr. Ndala’s responsibility if he made an inspection and found that he could correct a problem in the parking lot by shovelling or putting salt himself. This understanding is directly contradicted by Mr. Roberge who testified that the concierge for the Plaintiff’s building - who was conscientious and lived approximately a three-minute walk away in another apartment building - was responsible to clean and sand the walkway out to the sidewalk that parallels the parking lot.  Mr. Roberge said there is salt, sand, and a shovel inside the door of each apartment building in the complex, which is provided by the Landlord.[40]

[119]    Mr. Ndala agreed about the salt and sand being provided by the Landlord but said there were no shovels in the Plaintiff’s apartment building since the Cooperative had only just begun to buy shovels in December, 2006.

[120]    On the contrary, Mr. Roberge, at trial, testified that it was the responsibility of the tenants to shovel between the parked cars and apply any abrasive that the tenants purchased themselves.  However, Mr. Roberge confirmed that the tenants had never been told that this was their responsibility.

[121]    What is the Court to conclude from this conflicting evidence from the Landlord’s two representatives?

[122]    The Court determines that the lease corroborates Mr. Ndala’s testimony— the responsibility for the parking lot was that of the Landlord only.

[123]    In his 2010 examination on discovery, the Plaintiff testifies[41] to a telephone call with Mr. Roberge around 10:00 on the day of his falls. Mr. Roberge told him in no uncertain terms that snow removal between parked vehicles was the responsibility of the tenants and the purchase of any abrasive was at the tenant’s own costs. However, Mr. Roberge confirms at trial that this responsibility was never explained to the tenants.

[124]    On the other hand, Mr. Ndala testified that the tenants had no responsibility for snow removal or de-icing in the parking lot.

[125]    Accordingly, the Court concludes that the Landlord's employees operated on an ad hoc basis regarding spreading of salt and sand in the parking lot between the cars. However, the Landlord did provide salt and sand in the building although not for use by the tenants.

[126]     The Court also concludes that on the morning in question, the Landlord's employees had neither removed the snow nor spread salt or sand between the cars in the parking lot.

Provision of (a) Salt and Sand at Door of Building and (b) Metal Snow Shovels and Ice Picks by Landlord

[127]    Based on the evidence, the Court concludes the following: (a) the Landlord was well aware of problems regarding ice in the parking lot; (b) there was salt and sand provided by the Landlord inside the front door of the Plaintiff’s building but not for the tenants' use; and (c) the lease is clear that the only responsibility of the tenant for snow removal is their personal balcony and the stairs, which is consistent with Mr. Ndala’s testimony that the tenants had no responsibility to do any snow removal or de-icing in the parking lot.

[128]    The Board of Directors of the joint complex of the Cooperative and the Domaine raised concerns about snow and ice in their January 23 and February 20, 2006 meetings.[42]

[129]    Mr. Roberge confirmed that he drafted the minutes.

[130]    The Cooperative was well aware of the problem of ice forming in the parking lot.  The minutes for January 23, 2006 note that one of the directors asked that the Cooperative furnish both metal shovels and ice picks to the residents so that the residents could “break the ice on the sidewalks and in the parking lot” (Court’s translation) since the shovels given to the residents were not strong enough to break the ice.[43]  The minutes note that it is understood that the Cooperative will make such equipment available to all residents and will loan this equipment to the residents when they requested it.  The resolution from the directors following this discussion confirms that the Landlord will « circule une note auprès des résidents les invitants à se procurer un pic à glace et une pelle auprès du bureau ».  No evidence was produced to confirm that such a notice was ever sent to the tenants in general and the Plaintiff in particular.

[131]    The next month on February 20, 2006, in the minutes - under the heading « Glace sur les stationnements » - the same director proposes to identify certain members of the Cooperative who would be responsible for distributing the ice picks, as requested, after office hours. 

[132]    The minutes also note that Mr. Roberge is to write a letter to the Arrondissement in order to improve the snow removal and de-icing of municipal streets and sidewalks.

[133]    Mr. Roberge testified that this particular wording related directly to difficulties with the Arrondissement.  However, it is not the Arrondissement that is responsible for the Landlord’s parking lots and therefore, this reference underscores that 10 months before the accident, the Landlord had knowledge of an ice issue in the parking lots and gave an undertaking to provide ice picks.  There is no evidence of whether the Landlord ever fulfilled this undertaking.

Practical Issue: Snow Removal and De-Icing Between Parked Cars

[134]    The mention in the snow removal contract, Exhibit P-16, that snow removal was to be undertaken before 06:30 and again before 17:00 confirms the Landlord’s understanding that some tenants would be walking to their vehicles in the morning to go to work and then walking back from those vehicles on return from work in the evening.  Equally, the Landlord knew or should have known that because of the improper parking lot drainage in front of the Plaintiff’s building, there may be important accumulations of water in the parking lot if (a) there is unfrozen precipitation i.e. rain or (b) if precipitation melts due to temperature change.  The Landlord knew that due to the way these outdoor parking spaces were allotted, the tenants would need to walk between their vehicles to gain access.  At the same time, due to the narrowness of the space between the parked vehicles, the Landlord knew or should have known that the Contractor’s equipment could not get in between these vehicles either to shovel the snow or spread abrasive.  In fact, Mr. Roberge himself agreed that it was not the Contractor’s responsibility to do this work between parked vehicles and, as noted earlier, Mr. Roberge put this responsibility squarely on the shoulders of the tenants.

[135]    Over the period of December 26, 27 and the morning of December 28, 2006, the Landlord knew or should have been aware of the following factors: (a) the changing temperature which hovered around the freezing mark; (b) the presence of rainfall followed by snowfall; and (c) the certainty of accumulations of water due to improper drainage which when frozen into ice, could cause hazardous walking conditions in the parking lot for those tenants going to, or leaving, their vehicles.

[136]    In these circumstances, particular maintenance had to be exercised by the Landlord.

[137]    The Court finds that there was probably 3 centimetres of fresh snow that covered the parking lot, over top of a surface of ice located to the west of the rear wheel of the Plaintiff’s vehicle during the evening of December 27 and 28, 2006.

[138]    The Plaintiff paid a rental fee to park his vehicle in the outdoor parking—the Landlord had an obligation to take reasonable means to ensure that access from the apartment building to the vehicle was safe.  In the circumstances of the days in question, and since the concierge was only a three minute walk from the building, and since the building only had three floors, a properly-instructed concierge could have: (a) removed the snow between the vehicles; (b) which, if done, would have disclosed whether there was ice underneath at which point (c) appropriate abrasive could have been applied.

[139]    Such reasonable means were not followed and thereby the Landlord has committed a breach of its contractual obligations, which caused the Plaintiff’s falls, and led to the ensuing damages.

Conclusion of the Court's Analysis

[140]    The evidence confirms that the Plaintiff had some difficulty walking as a result of his pre-existing medical conditions.  However, the opposing parties have not proven that this contributed to the falls.

[141]    Since the beginning of the winter 2006-2007, the Plaintiff had gone to work without incident.

[142]    The Plaintiff was wearing proper winter shoes with lug soles.  He had not noticed any slippery surface in his walk from the front of the apartment building to his vehicle.  Critically, the Plaintiff had stepped out from the driver’s side onto bare pavement on the evening of December 27, 2006: he would not be expecting ice underneath on December 28, 2006 simply because of the limited snowfall.  Both the Contractor and the Landlord knew about the improper drainage but there is no evidence that the Plaintiff did.  Furthermore, the Plaintiff had been able to clear off both the hood and roof of the vehicle without incident, before the fall.  There is no evidence that there was any ice underneath the light coating of snow from the front of the vehicle up to the driver’s door. Considering all the circumstances, the Court cannot find any fault by the Plaintiff that contributed to the fall.

[143]    On the other hand, the lack of proper drainage existed in all probability at the time the Landlord purchased the Domaine.  The lack of proper drainage could have been caused by a design defect or settlement of the pavement over the years—the evidence is not determinative as to the cause.

[144]    Since the Landlord is fixed with real or implied knowledge of this defect - in the minimum - the following choices present themselves to the Landlord: (a) correct the problem; (b) without correcting the problem, warn the tenants and seek to transfer the knowledge and risk to the tenants if possible; or (c) have the concierges do regular inspections and remove snow from the pavement between the cars to ensure that any ice that may have formed is visible and spread abrasive as required.  The Landlord did none of this.

[145]    The Landlord should have: (a) kept an eye on climatic conditions; (b) had regular inspections undertaken; and (c) undertaken regular maintenance.  The difficulty in the present case is that as far as the area in the parking lot between parked cars was concerned, the Landlord had not transferred its responsibility to the tenants. The question remains whether the Landlord has transferred this responsibility to the Contractor.

Legal Obligations: Landlord-Contractor

Governing Principles

Unique Factor: Who was Responsible for Snow Removal and De-Icing as between the Landlord and the Contractor

[146]    The Contract[44] requires the Contractor to undertake « déneigement et déglaçage des stationnements et trottoirs ».  The Contract indicates times of the day before which the snow removal must be undertaken but nowhere is it indicated how much snow must fall before the Contractor must perform the services.

[147]    A great deal of court time was spent on this issue.

[148]    However, after hearing all the evidence, the Court determines that the Contractor has no liability under the Contract for the Plaintiff’s damages since Mr. Roberge agreed that it was not the Contractor’s responsibility to remove snow and ice between parked cars.  On this admission alone, the Landlord’s warranty proceedings against the Contractor are dismissed.

What Factors Determined when the Contractor was Required to (a) Remove Snow and (b) De-ice

[149]    The Contractor testified that he first cleaned the parking lot with a tractor that removed the snow before driving a six-wheeled truck that spread road salt. He confirmed that his equipment was too large to get between parked vehicles but that if there were enough spaces empty between parked vehicles, he was able to control the salt spreader that distributed salt from the back of his truck. Effectively, he controlled the speed and distance of the spreader to ensure that the abrasive was spread if the vacant space between parked vehicles was sufficiently large. However, he was categorical that where cars were parked beside each other without vacant spaces, his equipment neither removed the snow nor was able to spread abrasive between the vehicles.

[150]    As noted, the Contract did not specify either that a particular amount of snow had to fall or that there had to be ice before contractual performance was required.

[151]    Counsel for the Landlord objected to a question put by the Contractor’s counsel to the Contractor regarding just what was the « événement déclencheur » for such contractual performance.

[152]    The Court maintained this objection.

[153]    The next day, when the Contractor’s counsel put the same question to Mr. Roberge, the Landlord’s counsel did not object and Mr. Roberge said that the Contractor was not required to perform services unless 5 centimetres of snow had fallen.  The Court was told this was a minimum condition required by the City of Montreal before it sent out its snow removal crews for municipal roadways.

[154]    The Contractor also took this position, although there was no specific reference to that effect in the Contract.

[155]    As for the ice, Mr. Roberge testified that it was the obligation of the Contractor to undertake appropriate inspections and to remove ice when it was seen.

[156]    The Contractor firmly disagreed saying that he inspected as regards to snow but that for ice, it was the responsibility of Mr. Roberge and the concierge to verify this each day since « c’est eux de vérifier les lieux ».

[157]    In counter-proof, Mr. Roberge testified that the Contractor must come when necessary and it was necessary for him to come when there was ice.

[158]    On this conflict, the Court prefers the evidence of the Contractor whose recollection of the Contract and its performance was much more precise than that of Mr. Roberge.

[159]    It is sufficient that both Mr. Roberge and the Contractor confirmed that the latter had no responsibility for cleaning between parked cars, which was the case here for the Court also, to find that the Contractor had no responsibility for ice removal between parked vehicles.

[160]    The Contractor said that to have good drainage, the parking lot required sloping towards the sewer manholes located in the middle of the lot.  He added that salt acts as an abrasive as well as thawing agent.  Once applied, salt will unthaw for four to five hours but accumulated water will then re-freeze if the temperature goes down. 

[161]    He confirmed that - although he had neither recollection nor records of the specific dates that he removed the snow - he would have undertaken snow removal on December 27, 2006 if there had been a nine-centimetre accumulation.

[162]    He confirmed that the Landlord never instructed him when to come to do his work.  In December, 2006, he measured the depth of the snow by eye to determine when he would come.  After a snowfall, he would always remove the snow and then put down salt.  However, he would come to de-ice on his own initiative in two specific circumstances: (a) after a freezing rainfall; and (b) if there were melting and freezing conditions.

[163]    However, again, such inspections and de-icing would not occur between parked vehicles.

Whether the Contractor Met his Performance Obligations Under the Contract

Analysis

[164]      While there is evidence of some dissatisfaction with the Contractor’s work, there is no evidence - in the particular circumstances of this case - that there was any independent fault by the Contractor.

[165]    Firstly, Mr. Ndala testified that in the month of December, 2006 before the incident, he was the person responsible for receiving any complaints from the tenants regarding snow and ice removal. He said that he had received 3-4 complaints per week, which did not change his opinion that the snow removal service was satisfactory.

[166]    Secondly, Mr. Roberge indicated that the three-year snow removal contract was not renewed after the first year but this was because there were complaints about the danger caused to children by excessive speed of the Contractor’s snow plough driver.

[167]    This affirmation by Mr. Roberge is not confirmed by the minutes of the Board of Director’s meeting dated March 20, 2007.[45]  In those minutes, no mention is made of speed but rather the references are to the fact that the Contractor was not able to complete the work on a timely basis.  It also says: « Claude Roberge rajoute que nous ne sommes pas satisfaits du travail du déneigement de notre contracteur ».

[168]    However, whatever reproaches there may have been at the end of the snow removal season, there is no specific evidence of negligent performance of the Contract on December 26, 27, or 28, 2006 in relation to the Plaintiff's parking space. The Landlord has not proven that any obligations it owed to the Plaintiff were transferred to the Contractor.

Whether this is an “Automobile Accident” Legislated Exclusively by the Loi sur l’assurance automobile[46]?

Statutory Framework

[169]    One of the positions asserted by the Landlord and the Contractor is that the incident alleged by the Plaintiff falls exclusively under the definition of « préjudice causé par une automobile » as defined by the Loi sur l’assurance automobile (the “LAA”):

« Préjudice causé par une automobile[47] : Tout préjudice causé par une automobile, par son usage ou par son chargement, y compris le préjudice causé par une remorque utilisée avec une automobile, mais à l'exception du préjudice causé par l'acte autonome d'un animal faisant partie du chargement et du préjudice causé à une personne ou à un bien en raison d'une action de cette personne reliée à l'entretien, la réparation, la modification ou l'amélioration d'une automobile ».[48]

[170]    If this assertion is valid, the Superior Court has no jurisdiction.  For reasons that follow, the Court determines that the LAA is not applicable on the facts of this case. The Court determines that the removal of snow from the back window of the vehicle - even if the Plaintiff had started the vehicle and turned on the air-conditioning after getting out to remove the snow - does not constitute « son usage » as contemplated by art. 1 of the LAA. In the alternative, even if this definition were applicable, the Court decides that the actions taken by the Plaintiff in this case to remove the snow are exempt from the application of this article since they are covered by the specific exemption of « l’entretien d’une automobile ».

Jurisprudential Interpretations: Pram and Rossy

[171]    A seminal case on the determination of what the Legislator intended to include in the definition of “injury caused by an automobile” is the 1992 Court of Appeal decision of Productions Pram Inc. v. Lemay.[49]  Succinctly put, the Court of Appeal confirms that the active or passive role played by the motor vehicle in the incident is not determinative of an "automobile accident" within the meaning of the LAA: it is sufficient if the damages resulted from « le cadre général de l'usage de l'automobile »[50] and, in determining whether the LAA applies, the Courts are not to look at the traditional civil law causality between fault and damage.

[172]    It is important to note that the Court of Appeal emphasizes that the Courts’ interpretation of this clause must be plausible and logical:

Il m'apparaît donc qu'effectivement, lorsqu'on tient compte des buts poursuivis par le législateur d'une part, du caractère social et indemnitaire de la loi d'autre part, et enfin de la tradition jurisprudentielle très fortement majoritaire que la loi doive recevoir une interprétation large et libérale. Cette interprétation doit cependant rester plausible et logique eu égard au libellé de la loi. [51]

[173]    In the 2012 Supreme Court of Canada judgment in Westmount (Ville) v. Rossy, the Supreme Court confirms:

« Un accident qui découle de l’utilisation d’un véhicule comme moyen de transport répondra à la définition du terme « accident » utilisé dans la Loi […]. La simple utilisation ou conduite du véhicule en tant que véhicule suffiront pour que la Loi s’applique. »[52]

[174]    Mr. Justice Benjamin J. Greenberg of the Superior Court in 1979 made a similar point regarding "use", and its important connection with the transport of persons or goods:

It is clear that “use” is not synonymous with “operation”. […] The cases have held that, as the fundamental function of an automobile is to transport persons and their property from one place to another, entering upon and exiting from an automobile is part of the use of such automobile.[53]

[this Court’s emphasis]

[175]    In 2014, Mr. Justice Robert Mongeon of the Superior Court rendered a decision on an interlocutory application to dismiss based on the argument that a fall caused while removing snow from a vehicle was covered by the LAA. Mr. Justice Mongeon made a lengthy study of the existing jurisprudence and concluded that, even with a large and liberal interpretation of the law, removing snow from a vehicle—in his case one that was neither started nor was the air-conditioning on—could not be considered « préjudice causé par l’automobile ».[54] To paraphrase the Court of Appeal in Pram, this interpretation was both “logical and plausible” based on the state of the jurisprudence since to decide « autrement serait faire obstacle au sens ordinaire des mots que l’on retrouve à l’article 1, LAAQ ».[55]

[176]    The authors Baudouin, Deslauriers and Moore also emphasize such a practical, common sense interpretation. They state that a liberal interpretation must nonetheless be reasonable:

L’interprétation de ce que constitue un accident automobile ne devrait pas, cependant, s’écarter trop du sens de cette expression dans le langage courant. […] L’interprétation libérale, bien que souhaitable, ne doit cependant pas avoir l’effet de soumettre à la loi tout évènement impliquant une automobile. Il importe en effet que le lien entre l’automobile et l’accident ne soit pas purement fortuit.[56]

[177]    With regard to the ordinary meaning of words, Le Petit Robert defines the term « usage » as an « action d’utiliser, d’exploiter quelque chose ».[57]  As for the verb « utiliser », it is defined as « [r]endre utile, faire servir à une fin précise ». According to Mr. Justice Greenberg - above-mentioned - this specific purpose would be that of being used as a means of transport.

[178]     In the February 9 2015 decision of the Court of Appeal in Gargantiel v. Procureure Generale du Quebec et al., [58] the Court of Appeal re-stated the approach to be taken to dealing with the LAA this way:

(21) Bref, des propos du juge Baudouin dans Pram, réaffirmés par la Cour suprême dans Rossy[59], je retiens que l’analyse de toute situation s’articule autour des sept énoncés que voici :

Identifier les circonstances propres à l’espèce;

Rejeter l’application de la notion traditionnelle civile de causalité;

Refuser de s’enfermer dans les constructions traditionnelles de la causa causans, causa proxima, causalité adéquate, causalité immédiate ou équivalence des conditions;

Retenir que le lien de causalité requis aux termes de la LAA est sui generis;

S’abstenir de divorcer la détermination du type de causalité des buts poursuivis par la LAA, une loi rémédiatrice et à caractère social;

Se rappeler, en retournant au texte même de la Loi, qu’il est non seulement question du dommage causé par une automobile, mais aussi de celui causé par son chargement ou par son usage; et

Donner à la LAA l’interprétation large et libérale qu’elle mérite, visant l’indemnisation rapide et efficace de toute victime sans égard à la responsabilité de quiconque, tout en s’assurant, cela dit, que l’interprétation retenue demeure plausible et logique eu égard au libellé de la Loi.

(this Court's emphasis)

[179]    Furthermore, the Court of Appeal emphasised—following an approving citation of the Supreme Court of Canada—the following passage from Professor Gardner's doctrine: that in applying the LAA, the Courts should « rechercher la présence d’un rapport suffisamment étroit entre la présence de l’automobile et le préjudice subi ».[60]

[180]    In light of both the ordinary meaning of the words in the LAA and the case law, the Court determines that a large and liberal but also plausible and logical interpretation of the use of an automobile within the meaning of the Act does not include slipping on an icy surface while removing snow from the vehicle.

[181]    Therefore, as opposed to embarking into and disembarking from an automobile,[61] the specific purpose of which is to serve as a means of transport, clearing snow from an automobile - is too remote from that specific purpose - and is not an action pertaining to the general usage of the vehicle. It is neither part of its usage nor of its handling nor of its operation:[62] it is an action taken in advance of all three. In fact, the Court determines that an interpretation that assimilates snow removal with usage of an automobile within the meaning of the Act is too remote from the common sense meaning of an automobile accident in ordinary language.[63]

Effect of Legal Obligation to Remove Snow from Windshield Pursuant to le Code de securité routière

[182]    Under art. 265, Code de securité routière, the driver of a vehicle has a legal obligation to remove snow from the windows of a motor vehicle before it is driven.  Accordingly, a motor vehicle cannot be legally used until the snow is removed from the vehicle’s windows.  Mr. Justice Robert Mongeon in Dorian concludes that slipping on a bar of soap while washing a vehicle cannot be considered an automobile accident.  Since one can legally drive a dirty vehicle, all the more reason that the act of rendering a vehicle ready for use by taking snow off the rear window is preliminary to that use and not simply an earlier component in the continuum of that use.

Can Removing Snow from an Automobile be Considered Maintenance of an Automobile (« l’entretien d’une automobile »)?

[183]    Also for the reasons that follow, the Court determines that removing snow from a vehicle in the Quebec winter constitutes "maintenance" of that vehicle. Accordingly, even if the Court had concluded that snow removal was “use of a vehicle”, this exclusion would apply to avoid the application of the LAA.

[184]    While the Superior Court has not yet had occasion to define the term “maintenance” in the context of the LAA, the Tribunal administrative du Québec (“TAQ”) has done so on several occasions[64] and has referred to the ordinary meaning of that term.[65] In this context, here are certain dictionary definitions of that term referred to by the TAQ:

« Maintien d'un bien en bon état. Angl. maintenance. Entretien (dépenses d') : Dépenses courantes résultant de réparations destinées à maintenir un bien en bon état, par opposition à celles qui sont encourues pour les grosses réparations ou les améliorations. Ex. Les dépenses d'entretien du locataire d'un immeuble. Angl. maintenance costs, maintenance expenses ».[66]

« Soins, réparations, dépenses qu’exige le maintien (de qqch) en bon état ».[67]

«The care and work put into property to keep it operating and productive; general repair and upkeep».[68]

[185]    In a 1992 decision, the Court of Appeal points out that “exceptions to the no fault compensation for bodily injury plan must […] be strictly construed”.[69]  Nevertheless, the 1991 amendments to the Act “extended the scope of the exclusion, which does no longer cover the injury caused ‘due to maintenance or repair works’ but does exclude the injury caused to an individual or a property «due to an act […] related to maintenance, repair, modification or improvement» of an automobile”.[70]

[186]    This is one of the reasons why the TAQ, in a 2014 decision, considers clearing snow from an automobile as part of maintenance within the meaning of the Act:

 

[16] L’action de dégager la neige humide accumulée dans la partie inférieure du pare-brise et autour des axes de rotation des essuie-glaces relève de l’entretien d’une automobile, même si l’action se situe dans le cadre de l’utilisation du véhicule ou n’est qu’un intermède au cours de l’usage.

[17] […] Même si l’action de dégager des essuie-glaces peut être considérée comme un geste posé couramment par tout usager d’une automobile, reste qu’il s’agit là d’un geste qui relève de l’entretien notamment hivernal. Convenons que la notion d’« action reliée à l’entretien » est davantage inclusive que la notion de « travaux d’entretien ». […]

[18] En raison de la soustraction de l’expression « travaux d’entretien » et de son remplacement par les expressions « action reliée à l’entretien », le Tribunal est davantage justifié de ne pas créer des distinctions entre les gestes d’entretien couramment posés par le conducteur, dans le cadre de l’usage d’un véhicule automobile, de ceux nécessitant une intervention plus intrusive, voire davantage significative du point de vue de l’outillage ou du recours à d’autres ressources techniques.[71]

(this Court’s emphasis)

[187]    For these same reasons, and considering the ordinary use of the word “maintenance”, the Court concludes that removing snow from a vehicle in a Quebec winter is an aspect of maintenance related to ensuring the functionality of the automobile as a means of transport.

SAAQ Argument: None of the Contemporaneous Medical Documents Note that the Plaintiff was Cleaning Snow from the Car when he Fell

[188]    On a completely different line of argument, the SAAQ argues that the Court must infer that, since contemporaneous medical reports for the Plaintiff make no reference to the fact that the Plaintiff fell while cleaning snow from the rear window of his vehicle, the Court should draw the inference that he fell while doing something else totally unrelated to the vehicle.[72]

[189]    The Court does not accept this SAAQ argument because:

a)    The Plaintiff’s version of events—that he fell while cleaning snow from the rear window of his vehicle—was not seriously contradicted either at discovery or on cross-examination at trial. The Court believes the Plaintiff on this point; and

b)    The Court must consider the purpose of the medical report—a purpose very different from a police report or a contemporaneous insurance adjuster's report where such detail may be very important. For the Court to draw the inference that the omission of this detail from the medical reports probably means that the Plaintiff fell while doing something unrelated to this vehicle, must be based on the usual serious, precise, and concordant presumptions (C.C.Q. art. 2849). No such presumptions were established by the SAAQ and hence, this argument must fail.

Causality

What Caused the Fall and Was the Plaintiff's Instability a Contributing Factor?

[190]    The Court accepts that the Plaintiff had some instability in his walking. The question is whether this contributed to his fall.

[191]    As noted, the Plaintiff’s evidence was that he walked from the apartment building to his car carrying a mug of coffee in one hand and pulling a wheeled briefcase with the other hand.

[192]    For the reasons that follow, the Court determines that the Defendants have not met their burden of proof on the balance of probabilities that the Plaintiff contributed to his own falls:

a)   The Plaintiff had been able to remove the snow from the front and top of his vehicle without incident prior to the fall;

b)   There is no evidence that he was moving at the time that the fall occurred. It is most likely that he was positioned in a normal stance at the back window when his feet went out from under him due to the ice;

c)   There is no evidence that he was having any spasms in his legs at the time of the fall; and

d)   Even if he could have had an equine stance i.e. standing on the balls of his feet—which was not proved for this specific point in time—he was wearing heavy lugged-sole shoes for traction.

[193]    For the reasons given, the Landlord is responsible for the damages caused to the Plaintiff which resulted from the falls caused by the Landlord’s breach of its obligation to maintain the parking lot.

Damages

Evidence of two Medical Experts

[194]    The Court was given the benefit of expert medical evidence by Dr. Georges L’Espérance, neurosurgeon, on behalf of the Plaintiff and Dr. Jacques Lachapelle, neurologist, on behalf of the Defence. Their respective reports reinforce each other in some areas and contradict each other in other areas.

[195]    Dr. L’Espérance has more experience testifying before the courts - he stopped active medical practice in 1998 to focus on presenting forensic medical expertise and consulting work. Since 2008, Dr. L’Espérance has been the President (elected) of the Société des Experts en evaluation medico-légale du Québec.

[196]    Dr. Lachapelle has been undertaking medical expertise since 2001, has been recognized as an expert in neurology before the Superior Court at least 30 times, and testifies 90% of the time on behalf of the Defence.

[197]    For reasons not explained, both physicians only saw the Plaintiff years after the fall: Dr. L’Espérance saw the Plaintiff in early December, 2009 - almost three years after the incident - and Dr. Lachapelle saw the Plaintiff on February 28, 2012, over five years from the date of the incident.

[198]    Recently, Dr. Lachapelle has ceased to practice medicine and no longer does private medical expertise because he is a consulting physician for the CSST.

[199]    Dr. Lachapelle underscored that while he had done four years of clinical studies in neurology, neurosurgeon Dr. L’Espérance only completed the requisite one year in the clinical study of neurology as part of his training as a neurosurgeon.

Tools for the Court to use in Analyzing Conflicting Expert Reports

[200]    The principles to apply for the Court to analyze conflicting expert evidence were established by Mr. Justice André Rochon, then of the Quebec Superior Court, in the 1998 case of 2842-1733 Québec Inc. v. Allstate du Canada, compagnie d’assurance[73]:

21.  Dans un arrêt de principe, Lord Summer exposait la règle du fardeau de la preuve dans des domaines où une preuve hautement technique avait été reçue:

S’il advient qu’un juge ne peut décider en lui-même si, oui ou non, l’opinion qui lui est donnée est valable, il conclut simplement que le point n’est pas prouvé, au dépens de la partie à qui incombe le fardeau de la preuve sur cette question. C’est tout comme si la preuve nécessaire n’avait pas été établie.⁴

22.        Ce principe devait être repris par la Cour suprême où, sous la plume de l’honorable juge Pigeon, la Cour ajoutait :

Aux prises, comme c’est habituellement le cas dans les affaires de ce genre, avec des opinions scientifiques contradictoires, le juge de première instance s’est dit incapable d’éliminer la confusion créée par les témoignages divergents des experts. Dans ces circonstances, la justice demande qu’on s’efforce d’éliminer la confusion.⁵ (soulignements ajoutés)

23.        En 1985, le juge Monet, s’exprimant au nom de la Cour d’appel, suggérait avec encore plus de précisions le cheminement à suivre par un juge de première instance en pareille matière :

Lorsque la preuve offerte de part et d’autre est contradictoire, le juge ne doit pas s’empresser de faire succomber celui sur qui reposait la charge de la preuve mais il doit chercher d’abord à découvrir où se situe la vérité en passant au crible tous les éléments de conviction qui lui ont été fournis et c’est seulement lorsque cet examen s’avère infructueux qu’il doit décider en fonction de la charge de la preuve.⁶

24.        Pour guider le juge dans cette recherche, les tribunaux ont élaboré deux types de critères : ceux reliés à l’expertise même et ceux reliés à l’expert.

25.        La valeur probante d’une expertise sera d’autant plus élevée que les faits sur lesquels elle repose sont prouvés. L’honorable juge Gilles Hébert expose ces principes à partir de deux décisions de la Cour suprême et d’un arrêt de la Cour d’appel.⁷

26.        Les connaissances, l’attitude et les méthodes de l’expert doivent être analysées. Le Tribunal se penchera sur le ou les moyens par lesquels l’expert a acquis son expertise.⁸ La formation théorique est importante. Les tribunaux accordent toutefois une préférence à l’expérience pratique.⁹

27.        Le Tribunal observera également l’attitude de l’expert. Ce dernier fait-il preuve de subjectivité ou d’objectivité? A-t-il un intérêt dans l’affaire? Quelle est son approche face aux théories apportées par les autres experts? Y apporte-t-il des éléments? En tient-il compte?¹⁰ De façon secondaire, le Tribunal examinera la réputation de l’expert auprès de ses pairs.¹¹

4. Owners of S.S. Australia & Owners of Cargo of S.S. Nautilus, [1927] A.C., 145, 153.

5. Halvorson Inc. c. McLellan & Co., [1973] R.C.S., 65, 75 et 76.

6. Daunais c. Farrugia, [1985] R.D.J. 223, voir opinion du juge Monet, p. 228.

7. Kansa General Insurance Company & al c. Quincaillerie Roger Lambert Ltée, [1994], R.R.A. 881, citant les arrêts Shawinigan Engineering c. Naud, [1929] S.R.R. 341, 343; Rex c. Abbey, [1982] 2 R.C.S. 24; Paillé c. Lorcon Inc., [1985] (C.A.) 528, 531.

8. Marquard c. La Reine, [1993] 4 R.C.S. 223.

9. Dame Coulson c. Carruthers, [1968] (C.S.) 600, 605, voir également l'application pratique de ce principe dans l'arrêt Kansa précité.

10. Halvorson Inc., précité p. 74; Kansa précité, 31, 35.

11. Halvorson Inc., précité p. 74.

                     (this Court’s emphasis)

Areas of Agreement

Causation: Fall Caused the Cervical Myelopathy Suffered by the Plaintiff

[201]    Both doctors agreed that it was the hyper-flexion of the Plaintiff’s neck caused by the Plaintiff’s fall that, in the presence of the pre-existing narrowing of the bone encasing the spinal cord—a medical condition known as cervical stenosis - produced effects which led to cervical myelopathy, a medical condition where reduction of blood flow may lead to paralysis.

[202]    The Court understands that the Plaintiff - prior to the incident—had this undiagnosed condition of cervical stenosis which was otherwise asymptomatic. This cervical stenosis progressed over time and produced a narrowing of the bony structure which protects the spine. In effect, this reduced the diameter of the normal spinal column almost by half in the Plaintiff’s case.

[203]    As Dr. L’Espérance said, bony spurs intrude, in the case of cervical stenosis, into the spinal column. This physical situation may exist without problem except that when there is a hyper-flexion of the neck, the whiplash effect on the spinal column can cause these boney spurs to push into the spinal column. By the same token, this insertion effect of the bone into the spinal column can damage the vascular system feeding the blood to the spinal column. Such an injury to the spinal column is called cervical myelopathy.

[204]    There is insufficient evidence to confirm whether this cervical myelopathy existed before the fall.

Essence of the Medical Reports

[205]    A critical extract of Dr. L’Espérance’s Expert Report dated December 1, 2009 is:

 

« L’élément causal semble donc avoir été la chute avec soit un traumatisme direct au niveau du cou - ce qui paraît un peu moins probable car monsieur ne faisait pas état d’une douleur cervicale particulière - ou encore un mécanisme dynamique, ce qui m’apparaît dans la situation actuelle plus probable, à savoir une hyperflexion cervicale qui a fait décompenser une situation fragile avec atteinte médullaire progressive sur un canal qui était déjà étroit et sur une situation qui était à l’équilibre mais fragile.

 

Il y a eu une certaine détérioration immédiatement, puis dans le mois qui a suivi il y a eu une détérioration plus importante. On peut émettre l’hypothèse d’une myélopathie progressive multifactorielle avec étiologie vasculaire surajoutée, mais cela ne représente que des hypothèses.

 

Quoi qu’il en soit, la détérioration fut très claire dans les semaines qui ont suivi la chute et nous n’avons aucune indication à l’effet que monsieur aurait présenté auparavant une détérioration progressive.

 

Bien sûr, on peut aussi avancer l’hypothèse qu’au fil des années, compte tenu de sa sténose cervicale, il est possible que monsieur Guichard aurait présenté éventuellement une myélopathie progressive, mais il n'y a pas de raison de penser que celle-ci aurait pu se produire de façon aussi rapide que ce qui fut le cas ici.

 

En conséquence, la chute sur la glace m’apparaît avoir été l’élément causal primaire important qui a causé la détérioration, le tout sur la base d’une myélopathie - possiblement en partie vasculaire - sur sténose cervicale asymptomatique jusque là. Cette chute a donc agi ici comme facteur déclencheur significatif et primordial de l’aggravation d’une condition personnelle préexistante asymptomatique.

 

-        N’eut été de la chute, il est possible que monsieur Guichard eusse présenté au fil des années des symptômes de myélopathie cervicale progressive, mais cela n'est pas certain et par ailleurs cette détérioration se serait effectuée de façon lentement progressive selon toute l’histoire naturelle connue dans ces types de problèmes;

 

-        N’eut été de la condition personnelle préexistante asymptomatique, il est probable que la chute n’aurait entrainé aucune pathologie supplémentaire qu’une simple contusion céphalique. En effet, monsieur n'a pas présenté une détérioration significative immédiate, ce qui aurait été le cas advenant une lésion traumatique majeure.

 

Quoi qu’il en soit, au point de vue de la causalité, l’élément qui m’apparaît le plus important est le fait qu’il présentait une condition personnelle évidente, la sténose spinale cervicale serrée, mais qui était selon toutes les données que nous possédons asymptomatique même si le tableau clinique global pouvait être un peu confus en raison des antécédents d’atteinte cérébrale antérieure ».[74]

                                                         (this Court’s emphasis)

[206]    Both physicians agree that the Plaintiff is permanently incapable of returning to work.

[207]    From the Defence perspective, the Court now cites certain critical paragraphs from Dr. Lachapelle’s expert report:

« …La cause de la myélopathie cervicale n'est certainement pas de nature compressive vu les résultats du bilan d'imagerie médicale et la lente détérioration clinique vers une quadriplégie presque complète qui s'est étalée sur quelques semaines. La décompression chirurgicale de la moelle faite par le Dr Shedid était de nature préventive plutôt que curative et visait à protéger la moelle d'un choc traumatique futur, non prévisible mais éventuel, en élargissant le canal médullaire serré par l'arthrose dégénérative. La chirurgie a été faite pour éviter un second traumatisme cervical et une nouvelle lésion de la moelle et non pour traiter le dommage qui était fait et irréversible ».[75]

…

Évaluation de l'invalidité partielle permanente

« … J'évalue, tout comme le Dr Georges L'Espérance, le trouble de la marche de monsieur Guichard à une classe 4 puisqu'il ne peut se tenir debout seul et doit se déplacer en fauteuil roulant (fourchette de 36 à 50%), mais je soustrais le déficit de classe 1 relié à l'encéphalopathie néonatale et qui se manifestait par une démarche particulière et obligeait parfois l'utilisation d'une canne (fourchette de 1 à 10%). J'accorde donc un pourcentage de 40% ».[76]

…

 

« … L'atteinte neurologique du membre supérieur droit non dominant est actuellement de classe 4 (fourchette de 31 à 50%) mais il faut tenir compte du déficit préexistant et en particulier de la perte de la motricité du membre supérieur droit décrite amplement par plusieurs observateurs. J'accorde un taux de 45% pour compenser le déficit actuel.

Contrairement au Dr L'Espérance, je n'accorde aucune invalidité partielle permanente pour la chirurgie cervicale de nature préventive et non curative. Le chirurgien a voulu éviter un second choc traumatique de la moelle que rendait probable la découverte de l'étranglement causé par les changements ostéo-discaux dégénératifs de l'arthrose ».[77]

 (this Court’s emphasis)

Areas of Disagreement

AMA Guide: Incapacity for Pre-existing Condition:

[208]    The Court refers to a comparative table produced at trial which shows the comparison for the percentages of DAP assessed by each expert as drawn from the pre-eminent reference, the 6^th edition of the Guides to the Evaluation of Permanent Impairment of the American Medical Association[78]:

 

TABLEAU COMPARATIF DES EXPERTS MEDICAUX

 

 

 

[209]    The Court will now analyze three main areas of difference: “Station and Gait Disorders”, Neurogenic Pain, and “Upper Members”.

[210]    Both physicians start with the maximum percentage of 50% whole person impairment rating for “Station and Gait Disorders”. The Court agrees with Dr. Lachapelle who makes a deduction for pre-existing condition. In the AMA guide, in class I - “1-10%”, the description is “… walks but has difficulty with elevations, grades, stairs, deep chairs and/or long distances”. The Court prefers the evidence of Mr. Ndala who regularly had an opportunity to observe the Plaintiff and who confirmed the Plaintiff had difficulty with stairs. The Plaintiff himself admitted to difficulty in walking more that a kilometre. Hence the Court accepts that a 10% deduction down to 40% is appropriate.

[211]    Similar reasoning requires the Court to accept the deduction made by Dr. Lachapelle for neurogenic pain, which Dr. L’Espérance puts at 7%. Dr. Lachapelle reduces the maximum of 7% by 3% due to the pre-existing mild neurogenic pain already experienced by the Plaintiff prior to the incident. In view of the evidence confirming this pre-existing pain, the Court agrees with this deduction.

[212]    The third and final area of important disagreement concerns Dr. Lachapelle’s opinion to not provide any percentage incapacity for the laminectomy surgery since he considers it to be preventive and not curative. On the contrary, Dr. L’Espérance opines that the surgery was curative and awards 23%.

[213]    Dr. Shedid, a neurosurgeon, undertook the laminectomy. Another neurosurgeon reviewing the file before him, Dr. Bojanowski, was of the opinion that surgery was not required.

[214]    None of the medical records indicate the reason why Dr. Shedid decided to undertake this surgery. None of the parties chose to call him as a witness nor was any explanation for this omission given.

[215]    Dr. Lachapelle asserted that the reason for the surgery was preventive since, amongst other reasons, there was no improvement following the surgery.  He also opined that the surgery sought to enlarge the canal to avoid any future myelopathy should the Plaintiff suffer another fall or trauma.

But for the Accident, When Would the Deterioration Have Started: “Crumbling Skull” or “Thin Skull”?

Dr. Lachapelle

[216]    For the reasons that follow, the Court prefers the evidence of Dr. L’Espérance that the surgery was intended to be curative—not preventative—and did have some positive results:

a.   Dr. L’Espérance said that neurosurgeons do not perform a laminectomy in these circumstances simply to avoid something possibly happening in the future;

b.   in the hospital records, it notes that following this surgery, there was improvement in the strength in the Plaintiff’s upper limbs; and

c.   for this issue which concerns the reason behind undertaking a particular neurosurgical intervention, the Court finds the evidence of Dr. L’Espérance—an expert in neurosurgery—more probative than that of Dr. Lachapelle—a neurologist.

 

[217]    To put this conflict between the experts in perspective, it is necessary to cite the operative paragraph from Dr. L’Espérance’s expert report of December 1, 2009:

« N’eut été de la chute, il est possible que monsieur Guichard eusse présenté au fil des années des symptômes de myélopathie cervicale progressive, mais cela n'est pas certain et par ailleurs cette détérioration se serait effectuée de façon lentement progressive selon toute l’histoire naturelle connue dans ces types de problèmes ».[79]

(this Court’s emphasis)

[218]    On the other hand, on behalf of the Defence, Dr. Lachapelle said nothing in his medical report concerning the probability of the Plaintiff developing progressive cervical myelopathy had it not been for his fall. However at trial, Dr. Lachapelle made reference, amongst others, to the spasticity being experienced by the Plaintiff before the accident as well as certain urinary problems as an indication that myelopathy was possibly developing before the fall.

[219]    Under cross-examination, Dr. Lachapelle said that the fall was « un élément déclencheur ». However, he then went on to say that it was probable that this progressive myelopathy would develop and that the Plaintiff would not be able to walk after reaching 51 years of age because of the slow progression of the myelopathy from its onset when he was approximately 41 years old.

[220]    Dr. Lachapelle had earlier said in examination-in-chief that the possibility of the myelopathy developing was based on his clinical experience with 10 cases in which this progression had occurred with at least 10 patients who had cervical stenosis.

Dr. L'Espérance

[221]    The question for the Court is whether this is a case of “crumbling skull” or rather a case of “thin skull”. In other words, the issue for the Court to determine is whether the Plaintiff would have ultimately become paralyzed in the way he is now, irrespective of whether he had fallen or not. Dr. Lachapelle in his evidence at trial draws this conclusion, but had made no comment on the matter in his expert report.

[222]    On the other hand, Dr. L’Espérance opines that progressive cervical myelopathy is a possibility in his medical report but at trial, testified it was a probability - while adding the caveat that even without a fall but with a slow progressive paralysis in the legs, this progression could have been stopped by timely surgery i.e. a laminectomy.[80]

[223]    Moreover, Dr. L’Espérance testified that the fall, in combination with the existing stenosis, produced: (a) vascular compression and (b) an injury to the spinal cord, neither of which produced an immediate compression that could be seen by Magnetic Resonance Induction (MRI).

[224]    Both physicians said that the longer a medical condition lingers without treatment, the lesser the chance of making a full recovery.

[225]    Nonetheless, Dr. Lachapelle notes from the medical record of February 13, 2007 that there appeared to both a subjective assessment by the Plaintiff that his strength in his arms had improved and a more objective assessment: that there had been an improvement in his strength as a result of the surgery.[81]

[226]    Dr. L’Espérance indicated that progressive cervical myelopathy exists and he has seen such progressive cervical myelopathy manifest itself in his patients that are 55, 60, 65, and 70 years of age. However, like Dr. Lachapelle, he says there is no peer-reviewed medical literature to support this connection between aging and progressive cervical myelopathy in patients that have cervical stenosis.

[227]    On the other hand, Dr. L’Espérance does say that, if a laminectomy is undertaken, progressive cervical myelopathy can be stopped. He states he has done many laminectomies in his practice and that this neurosurgical procedure can be successfully completed at a younger age with a specific pathology, i.e., increasing paralysis and increasing pain in the legs, which may be symptoms of progressive cervical myelopathy.

[228]    He testified that deterioration begins around 55 years of age, but that where a neurologist is following the patient and where there is an early laminectomy, there is a more favourable prognosis for stopping the myelopathy.

[229]    Under cross-examination, Dr. L’Espérance admitted that the increase in spasms and the « vessie-hyperflexie » suffered by the Plaintiff in the weeks before December 28, 2006, could be signs of progressive myelopathy. However, he also agreed that this could be reversed by a laminectomy.

[230]    It is in this context that the Court must analyze Dr. Lachapelle’s evidence at trial that the prognosis for the Plaintiff—without the fall—would be that by age 51 he would be in the same position he is now, i.e., paralyzed and unable to walk. As noted, Dr. Lachapelle testified to this effect at trial: he did not opine at all on this topic in his earlier medical report.

[231]    For the reasons that follow, the Court determines that even if progressive cervical myelopathy would have occurred in the absence of the fall, its negative effects would have been reversed by timely surgery, i.e. a laminectomy. Accordingly, the Plaintiff would not have been required to stop working at age 51. The Court’s reasons are the following:

231.1.              Firstly, the evidence in support of progressive cervical myelopathy is the clinical practices of both Dr. Lachapelle and Dr. L’Espérance. Both physicians confirmed that there were no peer-reviewed articles that confirmed their opinion that cervical myelopathy was probably progressive in persons affected with cervical stenosis;

231.2.              Secondly, Dr. Lachapelle has testified frequently as an expert. His expertise was undertaken three years after that of Dr. L’Espérance in which the latter had specifically mentioned that progression of the cervical myelopathy was only a possibility. However, Dr. Lachapelle did not address this important issue in his 2013 medical report but only chose to raise the matter for the first time at trial. No explanation was provided for this delay.  Nonetheless, both experts did agree at trial on the probability that the Plaintiff would have suffered from this natural progression even without a fall. In the absence of any contradictory medical evidence, the Court accepts this probability;

231.3.              However, even with the Court accepting the probability of progressive cervical myelopathy for persons affected by cervical stenosis, the Court believes the evidence of the only neurosurgeon testifying, Dr. L’Espérance, that such a situation can be reversed by a laminectomy. Since the Plaintiff was well familiar with doctors and since he had a medical consultation as recently as two weeks prior to the incident, the Court determines that it is more probable that - in the absence of a fall and were there to be progressive myelopathy - the Plaintiff would have obtained the necessary neurosurgical consultation and undertaken the necessary laminectomy to reverse this.

Pecuniary Damages

Expert Actuary / Accounting Evidence

[232]    The Plaintiff relied on the expert testimony of actuary Mr. Julien Perreault, who is a Fellow of the Society of Actuaries since 2008.  Beginning in 1999, he has worked for his present actuarial firm while obtaining his bachelor degree in actuarial science in 2000.  He has been doing legal expertise for the past three years.

[233]    The defense relied on Mr. Richard Joly who was an accountant admitted to his professional order in 1978.  At trial, he was qualified as an expert in financial losses.  Since 1991, he has prepared approximately 100 expert reports annually, 95% of which were for the defense.  According to his curriculum vitae, the principal areas for his expert reports are in the evaluation of damages incurred by companies due to losses, amongst others, from operating losses as well as employee dishonesty. Throughout his lengthy experience, he has done 5 to 6 other personal injury cases.

Governing Law

[234]    The general state of the law regarding personal injury damages, including pecuniary damages, has been succinctly summarized by Madam Justice Marie-Christine Laberge in the 2006 case of St. Jacques v. Cooperative d’Habitation les Jeunes Heureux et al.[82] .

[189]    Lorsqu’il s’agit de blessures, il faut évaluer au plan économique (les pertes pécuniaires) et au plan personnel (les pertes non pécuniaires) la diminution de l’intégrité corporelle comme l’enseigne Baudouin dans son traité sur la responsabilité civile.

[190]    En 1978 trois arrêts de la Cour suprême du Canada sont venus formuler les règles devant guider l’évaluation des préjudices moral et corporel.

[191]    Baudouin commente ces nouveaux principes d’évaluation de façon détaillée dans la section de son ouvrage consacrée à [192]  l’indemnisation du préjudice résultant de blessures corporelles.

[193]    L’évaluation des dommages, explique-t-il, est désormais faite en fonction de trois pôles :

§ Le coût des soins futurs et les déboursés reliés aux blessures

§ La perte de revenus

§ Le préjudice d’agrément.

 

[193]    La perte de revenus pour le passé fait l’objet d’une évaluation à la date du procès.  Par contre, la privation de revenus futurs est déterminée à l’aide d’un pourcentage d’incapacité au moyen duquel on pourra déterminer l’impact de l’incapacité sur les gains futurs de travail.  C’est ce qu’on appelle le préjudice économique ou pécunier.  Celui-ci est évalué pour le passé d’une part et pour l’avenir d’autre part.

[194]    L’incapacité est partielle si elle a pour effet de diminuer la capacité de gagner des revenus.  Elle peut être temporaire ou permanente.  Elle est totale lorsqu’elle est élimine complètement la possibilité de travail de la personne et ses chances de mener une vie normale dans le futur.

[195]    Le taux d’incapacité de la victime est évalué par un expert par un pourcentage d’invalidité fonctionnelle.

[196]    Par jugement, ce degré d’incapacité sera transposé en incapacité de gains futurs.

[197] La perte de revenus futurs est en somme la réduction de gains futurs en fonction de l’incapacité de la victime.

 

Loss of Past Revenues and Loss of Future Revenues: Work Record of Plaintiff

[235]    Critical for the Court to determine is what would have been the Plaintiff’s employment, had it not been for the incident.

[236]    Both sides put forward different theses.

[237]    Given the non-linear work record of the Plaintiff, the Defence asserts that the Court should use figures related to a junior office worker with a 2% linear salary increase per year. On the other hand, the Plaintiff argues that “he had found his niche” and would have progressed over the 7 years from 2006 to January 1, 2013 to earn in the order of $55,991 (which is the 2005 average of  $45,000 per year actualized to 2013).

[238]    The evidence is that the Plaintiff had a drug addiction problem in 1991 that was resolved in 1992 when the Plaintiff was 27 years of age.

[239]    The evidence is incomplete as to what work the Plaintiff did between then and 2001 when he enrolled at the University of Sherbrooke. Once in university, his academic progression was not linear as appears from the university certificates earned at the University of Sherbrooke between 2001 and 2004:

a.   December 19, 2001: Microprogramme de qualification au Certificat d’administration d’affaires;

b.   December 20, 2002: Certificat en administration des affaires;

c.   July 24, 2004: Formation continue en « toxicomanie » (28 hours); and

d.   December 23, 2004: Certificat de toxicomanie.

[240]    At trial, the Plaintiff testified that his original plan was to obtain the necessary qualifications to administer a state-supported non-governmental office for addiction on the Lower North Shore that would allow him to make use of his addiction and business administration university courses.

[241]    However, he was not to find work in this field and his first job upon graduation was working in a call center where he solicited clients for an alarm company.

[242]    Sometime in 2005, he began working in the evenings for a currency trading company in Sherbrooke to supplement his income. Unfortunately he suffered a work-related accident with that employer. He stopped work sometime in September - October 2005[83] and progressively returned to work beginning on February 22, 2006.

[243]    In September 2005 while still on sick leave, a Sherbrooke company, Placements PFSL, hired him. He was doing data entry for Placements PFSL but due to lack of work was transferred to the Laval branch while he was still on sick leave. He started work in Laval on March 1, 2006 (for which he moved to Pierrefonds and rented the apartment where the incident occurred).

[244]    His probationary period for this employment was for one year from March 1, 2006, and he was earning $15 per hour[84] as a chef de bureau or office manager.[85]

[245]    He had the following functions:

§  Open the office in the morning;

§  Open the mail and distribute it to staff;

§  Update the downloads of financial transactions;

§  Do data entry;

§  Ensure the proper paper flow within the office; and

§  Carry out compliance responsibilities—regarding the rules regulating the financial services industries—for certain employees in training.

[246]    Following the incident, he received a « Relevé d’emploi » dated January 18, 2007 which noted that he had started work on March 1, 2006 and had ended that work on December 29, 2006 with a weekly wage of $525. Upon termination, he received $700 in vacation pay.[86]

[247]    The proof shows that his declared revenues from 2006 forward were:

a.   2006: $26,485.55;

b.   2007: $10,812.91;

c.   2008: $15,527.07;

d.   2009: 10,909.30; and

e.   2010: 10,963.41.

 

For What Type of Employment Should Future Wages be Considered and What Should the Reference Salary be Starting in January, 2007?

[248]    Reviewing the evidence of the exact jobs performed by the Plaintiff, the Court determines that his work combines clerical and administrative tasks. No evidence was called regarding his future career prospects with his last employer. Accordingly, there is no evidence as to whether he would have been kept on in his last employment after the one-year probation period.

[249]    However, the Court accepts that but for the incident, the Plaintiff would most probably have been able to find office work, if not with this employer then for someone else for the following reasons. The Court recognized that the Plaintiff does not have a typical linear career progression.  However, there are other factors. He was married, had made the choice to convert to a different religion and had a Wife to support: these are factors that show a level of commitment and stability not previously seen which should have focused his energies on obtaining and retaining such a job. Contrary to his pre-university period, the Plaintiff’s marriage provided stability and focus. His successful completion of the four university level certificates substantiates his greater stability and focus. Accordingly, the Court determines that the hypothesis of Mr. Perrault showing a continual salary progression for 7 years from 2006 is probable, where the 2006 salary is the actual salary received by Mr. Guichard and there is a linear progression to reach the indexed average salary for his job category in 2013 (as described in the next paragraph). Thereafter, the indexed average salary is used for the calculations

[250]    In addition, Mr. Perreault relies on income tables from Statistics Canada[87] giving average salaries for various job categories. Mr. Perreault uses the salary scale for the age group 25-44 years for the employment category « B-11 Personnel d’administration des finances et des assurances ».  The Defence accountant, Mr. Joly also uses these tables but he raised the issue that there were other potential categories of employment more suitable to the Plaintiff’s situation on this government website including:

i)    B-51 - Commis au travail général de bureau;

ii)   B-5 - Personnel de bureau; et

iii)  B-522 - Commis à la saisie des données.

[251]    The Court has considered these categories in light of the evidence: the fact that the Plaintiff is working in the financial services industry, the broad nature of the tasks he performs which are both administrative and clerical, his two university certificates related to business administration and the title of “chef de bureau” given to him by the employer (although not determinative).  The B-51 and B-522 categories are too narrow since the Plaintiff has administrative as well as clerical functions. The B-5 category is too general since the B-11 category covers specifically administrative personnel in financial services. Furthermore, the B-11 category applies to persons who hold "a diploma or certificate less than a Bachelors degree" (the Court's translation): this is the case of the Plaintiff with his university certificates.

[252]    Based on this analysis, the Court determines that the B-11 category chosen by the actuary is the closest to the Plaintiff's most probable career path.

[253]    Now to another issue. Mr. Joly for the defense developed three different scenarios and three different reference salaries for each: (a) $26,986, (b) $34,067 and (c) $40,079.  This accountant agreed that the greatest difference between himself and the actuary concerned the different reference salaries that each professional used.  While this was not part of the accountant's expertise, he opined that since the Plaintiff’s work experience lagged behind persons of his age both with regards to his professional development and his salary, it was improbable that the Plaintiff would ever earn the average amounts proposed by the actuary. That is why the accountant chose reference salaries that are lower. He also used the median approach.

[254]    The accountant prepared a Recapitulative Table (Exhibit P-14-E-1) in which he calculated (using these reference salaries) past and future income based on three hypotheses—retiring at 51 years of age, 60 years of age, and 65 years of age. 

[255]    The Court indicates in the pages that follow why it does not accept certain of the premises for the accountant's opinion: amongst others, that the deductions he calculates are not accepted in law and that the median amount he used should instead be an average.  Additionally, the Court does not accept the premise of the accountant that past is necessarily prologue in the case of the Plaintiff’s earning prospects, since the evidence, as noted, shows a turnaround in the Plaintiff's life.[88]

[256]    On the other hand, the approach taken by the actuary to calculate past and future income is consistent with these determinations by the Court.

[257]    The Plaintiff actuary’s working hypothesis is that it would have taken the Plaintiff 7 years to go from the bottom ($26,985 - his actual salary starting off in the « chef du bureau » job in 2006) to the actualized average salary for the B-11 category of $55,991 in 2013.[89] The actuary's reasoning for this progression is that instead of starting this job when he was 25 years old (as the government tables consider); he started when he was closer to 40 years of age. The actuary added in the 5% contribution from the employer to the Regime de Rentes du Québec (“RRQ”).

[258]    In their original reports, both the actuary and the accountant undertook their calculations for loss of past income up to January 1, 2013. 

[259]    During its deliberations, the Court arranged with all parties to have the two experts prepare a series of updated calculations based on additional hypotheses requested by the Court. These hypotheses are stated in a joint report dated March 7, 2016 which is part of the Court record.

[260]    For this updated report, loss of past income was calculated from January 9, 2007 up to the date of judgment, March 30,2016 and loss of future revenue was calculated from April 1, 2016 up to the Plaintiff's 60^th birthday on May 25, 2025. Without admission of liability, the two experts agreed the proper calculations were:

260.1.         loss of past income: $459,731; and

260.2.         loss of future income: $538,129[90]

 

In Considering the Reference Salary, Should the Average or the Median Salary be Used?

[261]    Ex. P-13 A is a Table also prepared by Statistics Canada.

[262]    Mr. Joly argued that the median income and not the average income should be used from this Table. Mr. Perreault argued for the use of the average income.

[263]    To illustrate the problem, the Court offers this simple example. If amongst five people, two earned each $20,000 per year, one earned $30,000 per year and the remaining two earned each $100,000 per year, the median revenue would be $30,000, whereas the average would be the total revenue of $270,000 divided by five, or $54,000. Similarly, in that Exhibit P-13 Annex 1, the median is $40,079 while the average is $45,226 for the year 2005. Mr. Joly’s accounting opinion is that the average skews the ultimate figure upwards.

[264]    Mr. Perreault stated that the rules set for actuaries across North America require that the average and not the median be used.

[265]    The Court agrees that the average should be used since:

265.1.              The exercise required by the Court is an actuarial calculation and the experts in this field are actuaries. Hence, it is the rules for actuarial calculations that should be followed; and

265.2.              In 1989, the Court of Appeal determined that where the parties needed to rely on provincial levels of remuneration to decide lost wages for a particular level of employee, the average salary for such a class should be used.[91]

 

For How Many Years Should Future Wages be Calculated?

[266]    In his discovery, the Plaintiff testified that he could have worked until age 60 « facilement ».[92]

[267]    Throughout the discovery transcript, the Plaintiff projected a “tough guy image”, exemplified by his focus on martial arts and, amongst other factors, his aggressive attitude towards Mr. Ndala after his fall. In reality, this no-nonsense approach to life has probably helped the Plaintiff surmount the health issues he has dealt with throughout his life.  Spirituality may have also played a role since, as Dr. Lachapelle noted, the Plaintiff’s problems regarding substance abuse occurred prior to his conversion to Islam in 2004. The evidence does not disclose whether this conversion was related to his meeting and marrying his Wife, who is from Senegal.

[268]    No direct evidence on the Plaintiff’s probable work expectancy was provided. Considering all the evidence, notably the Plaintiff’s fluctuating work record and particularly his multiple health issues, the Court arbitrates that the Plaintiff had a probable expectancy to work to 60 years of age for the following reasons:

a)            He needed to build up as much pensionable service as he could in view of his uneven work record prior to 2006;

b)            The evidence is that his Wife had limited earning potential; and

c)            On the basis that he would follow appropriate medical advice and receive any necessary neurosurgery to treat any progressive conditions, he would probably have been physically able to work to this age.

What Treatment Should be Given to:

(a) RRQ Pension Paid;

 (b) UIC Payments; and

(c) Welfare Payments

[269]    The accountant has made the deductions for revenue received from 2007 onward by the Plaintiff for unemployment insurance, and payments both from the RRQ and social assistance.  What does the law say?

[270]    The Legislator has restricted the benefits that a defendant may take from payments made by the state to a plaintiff under various social welfare benefit programs. As C.C.Q. art. 1608 demonstrates, only where the third party payor has a right of subrogation to a plaintiff, are those third party payments to a plaintiff taken into account to reduce a defendant’s liability:

[271]    The Court agrees with the analysis of Professor Gardner that, as a result of C.C.Q. art. 1608, the Defendants cannot benefit from any deduction for payments made to the Plaintiff under CSST, RRQ, and welfare payments.[93]

[272]    As Professor Gardner states, a plaintiff may nonetheless have the responsibility to reimburse the Minister where they receive indemnification as a result of legal procedures.[94]

[273]    For these reasons, the Court determines that the defense is not entitled to benefit from deductions for amounts received by the Plaintiff by way of unemployment insurance, RRQ payments, and social assistance payments. The ultimate calculations relied upon by the Court will not take such deductions into account.

 

Whether the Tax-Allowed Income Split Between the Plaintiff and his Wife for Welfare Payments are to be taken into Consideration

[274]    The Court was told that tax laws permit the Plaintiff and his Wife to split his welfare payments between them on their declarations of revenue for income tax purposes.

[275]    The Court is not required to answer this question since, as seen from the previous sections, the welfare payments to the Plaintiff are not taken into consideration in reducing defense liability in any event.

Claim by Plaintiff to Remunerate Wife as « Aidant naturelle »

[276]    The actuary included a claim for the Wife in his report. In response to the Court’s question as to whether the pleadings would be amended to include claims by the Wife, Plaintiff’s counsel replied in the negative. The Court understood that the Plaintiff is claiming an amount to allow him to pay to his Wife a "salary" for his Wife’s caring for him.

[277]    The Plaintiff cannot make a claim that should have been made by the Wife, nor is there evidence of the medical necessity for the services sought to be indemnified

[278]    Relying on the principles of full indemnification of the C.C.Q., this Court agrees with Professor Gardner when he says that relatives providing services to meet both the physical and psychological needs of the victim medically needed because of the incident,[95] may also be compensated in damages.  However, to be compensated under this heading of pecuniary damages for particular services provided by the Wife, it had to be proven that such services were medically required: there was no such evidence in this case.

[279]    Moreover, in the present case, it is not the Plaintiff who has suffered any monetary loss:  the proper plaintiff should have been the Wife. Although the Court recognizes the important contribution made by the Wife to the Plaintiff’s well being, she is not a plaintiff to this litigation. The Plaintiff's counsel confirmed to the Court that no amendment would be made to the pleadings to add the Wife. Accordingly, this claim cannot be admitted since each case must be considered on its specific facts[96], and the Court’s discretion must be exercised judicially and not arbitrarily:

En définitive, ce qui est important, c'est que l'assise juridique sur laquelle reposent l'indemnité et la détermination de celle-ci soit choisie en fonction des éléments de la preuve de façon à minimiser autant que possible tout arbitraire dans l'exercice de la discrétion judiciaire. En effet, «discrétion judiciaire» n'est pas nécessairement synonyme «d'arbitraire». L'exercice de la discrétion judiciaire doit reposer sur des éléments de la preuve, d'où l'importance d'une analyse rigoureuse de la preuve.^[97]

(this Court’s emphasis)

Number of Hours of Work Allotted for Wife

[280]    Nonetheless, for completeness, the Court will quantify the claim, even if it is not admitted.

[281]    The Plaintiff married his Wife on September 11, 2004 in Senegal.  She was at the time working as a personal aide to an individual in a wheelchair in France.

[282]    She worked in that position until she was allowed to come to Canada on March 18, 2006 (she became a Canadian citizen on September 11, 2010).  For a brief period of time prior to the accident, she worked as a sales person—on a seasonal basis—in a Montreal retail department store.

[283]    When the Plaintiff returned to their apartment in 2008 after rehabilitation, the Wife provided the care for the Plaintiff when the provincial health care workers were not there.  She made all the meals and because of all the activities that the Plaintiff has with his personal hygiene during the day, her quality time with her husband is restricted to the evening hours from approximately 20:30 to 23:00.

[284]    The evidence from the occupational therapist confirms that the Wife’s helpful and comforting presence is very important for the Plaintiff.

[285]    The Court recognizes these additional responsibilities have added an important dimension of responsibility and difficulty to her life.

[286]    Since April 8, 2008, the Plaintiff’s mother comes for two periods totalling one month per year to give the Wife a respite from the Plaintiff’s care. The mother travels from her home in Baie-Comeau, Quebec.  When the mother is present, this gives the opportunity for the Wife to go out.

[287]    C.C.Q. art. 392.2 requires mutual aid between spouses: “…They owe each other respect, fidelity, succour and assistance”. However, Professor Gardner underscores that there is a distinction between normal “succour and assistance” and exceptional duties required in looking after a very ill person, as in the present case.[98]

[288]    The Court understands from the evidence that the Wife is essentially “on call” for the Plaintiff all the time.  However, she does get some respite for a month when the Plaintiff’s mother comes.  Also, the Court recognizes that there are between four and five hours—in the afternoon and each evening—when the Wife is present with the Plaintiff and there are no health care personnel present.

[289]    Were the Court required to quantify the Wife’s damages, the Court deems it reasonable in the circumstances that the Wife be remunerated for four hours of work per day at the minimum wage of $9.50 (agreed to by the parties) per hour for seven days per week (even though the Court recognizes that she works more hours on the weekend when fewer health care personnel are present). For a year that calculation is: $9.50 x 28 hours per week x 4.3 weeks per month x 11 months per year (which excludes the one month respite provided by the presence of the Plaintiff's mother).  That total amount is $12,581.80.  If this were for five hours per day, the total would be $15,727.25.

Claim for Future Expenses

[290]    The Plaintiff made no claim for any damages related to adapted housing, adapted vehicular transportation, upgrading of his wheelchair, additional healthcare expenses, any amount for professional assistance in investing any amount of damages to which he might be entitled, or an additional amount to pay for any income tax to cover such future expenses. Accordingly, no amounts are awarded.

Non-Pecuniary Damages for Anatomicophysiological Deficit

State of the Jurisprudence

[291]    In the 2014 case of L’Ecuyer v. Attorney General,[99] this Court had the opportunity to review the state of the law on non-pecuniary damages. It is useful to re-state that analysis here.

[292]    In the 2010 Quebec Court of Appeal case of Stations de la Vallée St-Sauveur v. M.A.[100] (hereinafter, “Mont St-Sauveur”), Mr. Justice Nicholas Kasirer was called upon to consider the legal principles established originally by the Supreme Court of Canada in the classic personal injury trilogy of Andrews, Thornton and Arnold.

[293]    In Mont St-Sauveur, the trial judge (who was confirmed on appeal) awarded a global amount—as opposed to a daily amount. The global amount was less than the indexed Andrews limit.

[294]    In that case, Mr. Justice Kasirer ruled:

“One of the defining characteristics of non-pecuniary loss is that it is largely measured subjectively, according to the suffering felt by the victim, and the existence of a judicially-created scale would wrongly suggest that the measure can be made objectively. Professor Gardner has rightly observed that « le plafond de 100 000 $ indexé n'est pas une base de calcul mais, simplement, un maximum qu'il ne faut pas dépasser ».

[…] Measuring the pain and suffering that a physical injury produces as a non-pecuniary loss involves coming to an understanding of subjective experience of pain and unhappiness that is not transposable from one person to another.”[101]

[295]    Mr. Justice Kasirer emphasized a balanced approach which—while focusing on the victim’s subjective pain and suffering as well as seeking to provide solace to the victim in as much as money can do that—also required there be an objective consideration given to previous cases with similar injuries and awards in those cases. Mr. Justice Kasirer states:

“This balanced method ensures that both the objective and subjective concerns are available to a trial judge called upon to treat like cases alike and unlike cases differently in this fact-driven exercise.  This balanced method advanced by the Supreme Court of Canada allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s own situation” [102].

[296]    The Court draws the following applicable principles from Mr. Justice Kasirer's judgment in the Mont St-Sauveur case:

a.    "The $100,000 indexed cap in Andrews is a limit on the amount of damages but not necessarily the top of some notional scale for pain and suffering… The seriousness of bodily injury is not defined for the purposes of non-pecuniary loss by the cap, which only serves to limit damage awards" (at paragraph 78 of that judgment);

b.    "Measuring the pain and suffering that a physical injury produces as a non-pecuniary loss involves coming to an understanding of subjective experience of pain and unhappiness that is not transposable from one person to another" (at paragraph 79);

c.    Since money cannot compensate for subjectively-felt pain and suffering, the Supreme Court of Canada has focused on monetary awards providing "solace" (at paragraph 80);

d.    Assessability, uniformity and predictability are objectives to be sought so as to create some consistency in non-pecuniary damage awards (at paragraph 81); and

e.    "Comparisons are made to the limited extent of justifying the fairness of outcomes" by ensuring that "similar cases are treated similarly" and the corollary that different cases receive different treatment (at paragraph 82).

[297]    This Court determines that the Mont St-Sauveur and Andrews cases provide useful comparisons.  In the former, the young 9-year-old boy suffered severe neurological damage but otherwise was of normal appearance and physical capacity while in the second case the adult victim was without neurological impairment but was confined to a wheelchair. The Andrews case has some parallels with the present Plaintiff’s situation.

[298]    In the Mont St-Sauveur case, an award of 90% of the index limit was confirmed by the Court of Appeal while as we know in Andrews, the full 100% limit was applied.

[299]    Based on the approach recommended by the Court of Appeal, the Court has also analyzed the following spectrum of personal injury cases.

[300]    In the 2009 Quebec Court of Appeal decision of Liberté TM Inc. v. Fortin et al.,[103] a global DAP of 38% was determined.  The adult plaintiff suffered brain injury as a result of a fall.  The Court of Appeal confirmed an award for non-pecuniary damages that were approximately 50% of the Andrews indexed cap.

[301]    In the 2013 judgment of J.G. v. Nadeau,[104] the victim was a premature baby who suffered from cerebral paralysis. The court found that the child's pain and suffering were important and that she would live on the margins of normalcy throughout her life.  While she was able to move around within the family house by supporting herself against the walls or on the furniture, in public spaces, she was always required to use a four-legged cane or a walker.  For long distances, she required the use of a wheelchair. She also needed to wear orthotic supports during the day and at night. Moreover, she suffered from attention difficulties which left her with an intellectual functioning that was "much less than the average". On an Andrews’ index of $310,000, the Court awarded $235,000 (approximately 75% of the Andrews indexed cap of $310,000).

[302]    For the 2004 Superior Court judgement of Arsenault v. Ste-Marguerite-du-Lac-Masson, the plaintiff was rendered paraplegic in a snowmobile accident, suffering these effects:

·        Paraplegia: 75%

·        Complete sexual dysfunction

·        DAP of 93%

·        No prospect of any recovery

·        Assistance always needed for personal care

·        Total loss of life as a couple and for normal family life

The male plaintiff was a landscaping contractor aged 33. The care he required was in the following disciplines: « Physiothérapie, ergothérapie, services sociaux, psychologie et urologie ». The Superior Court awarded him $210,800 being 85% of the then-Andrews indexed ceiling, in consideration that the Plaintiff still had the use of his upper limbs and all of his mental faculties.

[303]    Of persuasive value—although not binding on this Court—is the 2010 Ontario Superior Court case of Musselman v. 875667 Ontario Inc[105]. The Plaintiff was rendered paraplegic by falling down a negligently constructed staircase. The medical expert testified: “The patient is seriously disabled, having lost the effect of pinch and grasp and independent normal mobility. She is my view totally dependent for day-to-day care. This will continue I believe throughout the remainder of her life”. The nature of the care required according to the expert was: “The care that she needs need not be that of registered nurses but must be given by adults who are mature and intelligent and capable of acting in an emergent fashion when necessity demands. At the present time her husband and family are acting in a significant fashion in this regard. She also has hired help” (ibid). At the time of the accident, the Plaintiff was 71 years old and was retired, although she performed volunteer services at a senior retirement home. For non-pecuniary damages, she was awarded $326,000 (para. 214), being 85% of the then-Andrews indexed ceiling.

[304]    A non-exhaustive list of factors that may be considered in the award of non-pecuniary damages include: age of the plaintiff, nature of the injury, severity and duration of pain, disability, emotional suffering, loss or impairment of life, impairment of social relationships, and impairment of lifestyle.[106] The Court now turns to consider the specific elements proven in this case.

[305]    The Wife testified that before coming to Canada, she worked as a personal assistant looking after a person who was wheelchair-bound. Hence, she has a work background caring for those with disabilities.

[306]    She testified that she helps the CLSC workers each day. She indicated that the Plaintiff, after he was bathed, had his bowels cleaned, and underwent physical therapy, was ultimately put back into bed at approximately 13:00. Her evidence is then unclear as to whether he slept from 13:00 to 19:00 or whether he slept from 15:00 to 19:00.

[307]    In either event, she was mainly in the residence keeping watch, although she was able to go out and do errands on occasion.

[308]    The CLSC personnel then returned from 19:00 to 20:30 to assist with more partial toileting. From that time to 23:00, she chatted with the Plaintiff, they watched television, and then went to bed.

[309]    She also confirmed that the CLSC staff came only once per day on the weekends.

[310]    Ms. Claudine Lafrenière, occupational therapist, works for the relevant CSSS de la Pointe-de-l’Île which is in the territory that looks after the Plaintiff. She confirmed that as of July 2013, the couple had to live in separate beds because the need and size - for (a) the equipment to lift the Plaintiff and (b) the single hospital bed - did not permit the couple to sleep together in the same bed (the Plaintiff must be in a hospital bed for lifting purposes).

[311]    Accordingly, the Plaintiff and his Wife must sleep in separate rooms as of July, 2013 since the size of the bedroom in their adapted apartment could not fit in a second bed, in addition to the necessary equipment and furnishings.

[312]    Under cross-examination, she underscored the importance of all the persons that assist the Plaintiff. She underlined particularly that the Plaintiff is very protective of his Wife and that on several occasions, she came close to a “burnout” because of the difficulties of living with the Plaintiff and his health requirements on a 24-hour basis.

[313]    She says that modern occupational therapy takes a holistic approach placing equal value on the spiritual, affective, and physical dimensions of the patient’s life. In particular, she noted the importance of the work of the Wife in terms of motivating the Plaintiff and that particularly in the case of the Plaintiff, the caring and helpful relationship of his Wife was fundamental to his physical and emotional well-being.

[314]    The Court accepts her evidence that the confidence established between the married couple is critical to ensuring that the Plaintiff remains at home in lieu of being institutionalized.

[315]    Under cross-examination, the Wife was asked whether she was paid by the husband for any of the services she performs and her response was immediate, direct, and laudable: she said all the caregiving services she performed were due to her marriage vows.

 

Andrews Base should be Applied as of What Date: Date of Accident or Date of Service of the Proceedings (or Demand Letter)

[316]    The Plaintiff's actuary, Mr. Julien Perreault testified that the Andrews ceiling indexed to the date of the incident, Dec. 28, 2006, was $311,000.

[317]    The jurisprudence confirms that the valuation of non-pecuniary damages per Andrews should be taken as of the date of the institution of the proceedings[107], which is December 23, 2009 in the present case. The adjusted maximum to that time is $312,565.[108]

Assessing Non-Pecuniary Damages: Application to the Specific Facts of the Plaintiff's Case

[318]    The subjective aspect for the analysis by the Court of non-pecuniary damages must necessary scrutinize how the Plaintiff has lived his life after the incident. This Court has chosen to undertake that analysis by considering the chronological evolution of the Plaintiff's life from surgery through rehabilitation to the present day.

Pre-existing Medical Condition of Plaintiff

[319]    In summarizing the Plaintiff’s extensive medical history, the Defendant’s medical expert, Dr. Lachapelle took up 3½ pages of his report.[109] The evidence discloses that the Plaintiff has suffered from health challenges since birth:

a.   He was diagnosed shortly after birth with a « paralysie cérébrale spastique avec hémiparésie droite »;

b.   Throughout his youth, he had difficulty with spasticity in his legs: « une démarche spastique et athétoïde avec une quadriparésie plus marquée à droite, des pieds équins spastiques et une dorsiflexion très difficile mais possible du pied droit »;

c.   When he was 25, he had an automobile accident and suffered whiplash;

d.   Following a work accident in 1993, an orthopaedic surgeon diagnosed: « qu'il était porteur d'une hyperlordose telle que rencontrée chez un grand nombre de cas de paralysie cérébrale »;

e.   He had asthma and cardiovascular issues;

f.    He was addicted to drugs from 1991 to May 27, 1992;

g.   On December 19, 2006 - 9 days before the accident - he consulted a neurologist « parce qu’il se disait désespéré par les spasmes (surtout au lever) qui entraînaient de la douleur »; and

h.   Before the falls, he suffered from insomnia.

While these factors were not proven to have caused or contributed to the fall, the Court determines that the Plaintiff had some limitations on his mobility prior to the fall. At the same time, the evidence is clear that the Plaintiff pushed himself to achieve beyond these physical limitations.

From Incident to Laminectomy, February 12, 2007

[320]    The Plaintiff drove himself to work on the same day after the fall.[110]

[321]    For the next 10 days, he rested. However, his ability to walk deteriorated each day. In or about January 16, 2007—at a point when the Plaintiff could no longer feel when he was urinating—his Wife drove him to Hôtel-Dieu Hospital in the evening. With assistance, the Plaintiff was able to get in and out of the car.

[322]    After being admitted to Hôtel-Dieu Hospital, he was, in subsequent days, sent to Notre-Dame Hospital for more sophisticated testing since the paralysis in his legs continued to spread, for no apparent reason.[111] A variety of medical specialists were involved in seeking to come to a final diagnosis and treatment plan. On January 30, 2007, he was discharged from Notre-Dame Hospital in circumstances where the hospital notes indicate a lack of cooperation from the Patient and a breakdown in doctor-client confidence. The Plaintiff returned to Hôtel-Dieu Hospital.

[323]    On or about February 12, 2007, the Plaintiff was readmitted to Notre-Dame Hospital. He was followed by a different medical team. On February 13, 2007, the Plaintiff underwent the neurosurgical operation called a laminectomy, performed by neurosurgeon Dr. Shedid at Notre-Dame Hospital, with some improvement after the surgery, as noted earlier in this judgment.

The Period Between the Laminectomy and his Final Return Home in 2008, and Thereafter

[324]    Following the operation, the Plaintiff did not go home but rather went to a rehabilitation centre where he stayed for approximately one year. He began his progressive return to home in February 2008.

[325]    In October 2009, he was re-admitted to Hôtel-Dieu Hospital and spent 22 days in hospital because of the significant increase in pain he was suffering.

Life at Home

Mobility

[326]    There is conflicting evidence about whether the Plaintiff had any difficulties walking prior to the fall. In part, this conflict arises because of the dissonance between how the Plaintiff saw himself and how he was perceived by others, particularly medical personnel.

[327]    The Plaintiff testified that he had no difficulty in walking, with the following exceptions:

a.   If he was tired at the end of the day, he limped and his motions were not fluid;

b.   If he had to walk any distance over a kilometre, he used a cane; and

c.   He had spasms in his legs in the morning particularly when he got up and for which he took medication. This medication did not stop 100% of the spasms. There is no evidence that he was having these spasms at the time of the incident.

[328]    At the same time, there is uncontradicted evidence from the Plaintiff that he led an active lifestyle:

a.   from 2001 to 2004, he participated in various forms of martial arts and did cardio exercises;

b.   in Sherbrooke, he cycled three times per week for leisure with a classmate;

c.   as corroborated by his Wife, she and he regularly went on walks; and

d.   he drove his own motor vehicle since 1984.

[329]    On the other hand, Mr. Ndala - whose testimony the Court found credible - testified that the Plaintiff had difficulty walking and walked on the tips of his toes, and climbed stairs holding onto the railing.

[330]    Furthermore, the following medical records disclosed mobility issues:

a.   April 19, 2006: a Dr. Boudreau filling in a form for Emploi Québec noted that the Plaintiff had incapacity related to motor activity, including, amongst others: « au déplacement ». The Plaintiff signed this form which says he had « difficulté de se déplacer »;[112]

b.   April 24, 2006: Dr. Jacques Desnoyers, orthopaedic surgeon, said that the Plaintiff had a problem with equilibrium;

c.   Dr. L’Espérance deduced from his interview with the Plaintiff that the Plaintiff « présentait une démarche probablement non seulement peu spastique mais aussi avec une certaine instabilité »;[113]

d.   The evidence confirms that the Plaintiff had falls in 1982, 1983, and 1988, and in 1993 at the golf club as a work accident, 1995 (fell on the bathtub), and in January 2002 (fell while moving residences). As stated earlier, the Plaintiff was out of work as a result of a work-related accident from September 2005 to March 1, 2006, a period of seven months inclusively.

 

[331]    From this evidence, the Court determines that the Plaintiff had certain instability while walking.  However, there is no evidence that such instability was a factor at the time the Plaintiff was standing stationary at the back of his car to undertake snow removal from the rear window.

[332]    The Plaintiff must always be helped in any transfers from the bed to his electric wheelchair. For travel outside the apartment, he must use handicapped transport, which must always be arranged in advance.

[333]    Confidential Annex B is attached to this judgment: it refers to private matters in relation to personal hygiene and marital relations.  To ensure privacy, the parties have agreed that Annex B is accessible to them and their counsel but not otherwise available for publication.

 

Life expectancy

[334]    The Contractor asserted [114] that the Plaintiff may have a life expectancy of 80 years, but this is not evidence. Mr. Perreault opined that the Plaintiff had a life expectancy of 16.5 years beyond January 1, 2013 based on relevant mortality tables.

[335]    In consideration of both his medical history prior to and after the incident and the actuary's evidence, the Court accepts this hypothesis from the actuary.

Amount Awarded for Non-Pecuniary Loss

[336]    The Court must seek to balance subjective considerations raised through the testimony of the Plaintiff, his Wife, and the health professionals while at the same time considering awards made by Courts in the past for non-pecuniary damages in similar cases.

[337]    Just prior to the opening of trial, counsel for the Contractor sought to file for the first time extensive medical records covering the Plaintiff's life. The Court was left perplexed by this last minute filing since counsel had received the Plaintiff's authorization and had obtained the documents many months in advance of trial without filing them into the record. That said, the documents were relevant and the information contained therein was or should have been known to the Plaintiff. On this basis, they were allowed into evidence despite the extreme lateness of the filing.

[338]    Those medical records confirm that up to the date of the incident, the Plaintiff has confronted medical adversity throughout his life.

[339]    At the time of the incident, opposing counsel are correct that the Plaintiff did not benefit from 100% good health.  The Court determines that the fairest approach is to determine the Andrews percentage for non-pecuniary damages and then make a percentage deduction for the Plaintiff's pre-existing medical condition.  According to the testifying medical experts, Dr. L’Espérance found the Plaintiff to have a DAP of 84% while Dr. Lachapelle placed the DAP figure at 71%.  The gap between the two of 13% is reduced because of the Court’s analysis of the three main areas of dispute between them, as a result of which that the Court determines the ultimate DAP is between 77% and 81%.

[340]    The Court scrutinized the Plaintiff's demeanour throughout the hearing.  In the morning, he was attentive and interested and took notes to the best of his ability.  His concentration began to wane in the afternoon and on occasion, his eyes were closed.

[341]    It is clear that the Plaintiff is acutely aware of his limitations.  His daily life relies almost completely on the help of health professionals, caregivers and his Wife, in the most personal of ways. In fact, no one in the Courtroom was unmoved when the Plaintiff testified to various aspects of a day in his life. Yet throughout the 10-day hearing, the Court heard no complaining from the Plaintiff.  It would be idle speculation for the Court to determine the place from where the Plaintiff finds his inner resolve but that he has such resolve is not in doubt. 

[342]    As the Supreme Court of Canada has said, all that non-pecuniary damages can aspire to do is provide a level of solace to make a plaintiff's life easier, which may include purpose-built living accommodations, or acquiring adapted transport to provide a modicum of freedom of movement.

[343]    All things considered, the Court determines that an application of an 85% indexed Andrews cap is appropriate.  The Court reduces this amount by 15% - as a result of pre-existing mobility difficulties - to 70%.  Accordingly, the final award is $218,795[115] based upon the appropriate indexed Andrews maximum.

 

The SAAQ and the Contractor’s Third Party's Entitlement to Legal Costs under the C.C.P. in effect January 1, 2016.

[344]    The SAAQ attended throughout the trial since the facts surrounding the incident were critical to determine if the Loi sur l’assurance automobile applied.  Since the SAAQ was successful in defeating the Landlord’s assertions that the LAA applied, it is entitled to its costs against the Landlord. 

CONCLUSIONS

 

For these reasons, the Court:

[345]    DISMISSES the Defendant's Amended Motion to Dismiss and WITH LEGAL COSTS to the SAAQ to be paid by the Defendant;

[346]    ORDERS the Defendant to pay immediately to the Plaintiff as damages the amount of $459,731 for loss of past income from December 29, 2006 to the date of this judgment, and ORDERS that interest and additional indemnity be paid on this amount from the date of the demand letter up until the date of payment, which interest/indemnity is: (a)  $101,819 up to the date of judgment and (b) $164.03 per day from April 1, 2016 to the day of payment[116];

[347]    ORDERS the Defendant to pay within 31 days of this judgment to the Plaintiff as damages the amount of $538,129 for loss of future wages , to cover the period from the date of judgment up to the date of the Plaintiff’s 60th birthday, May 25, 2025 and ORDERS that if this amount is not paid within that delay without legal justification, it shall bear legal interest and indemnity from the end of when it was due up to the date of payment;

[348]    ORDERS that the Defendant pay immediately to the Plaintiff the adjudged costs for expert Dr. L’Espérance of $7,754.78;[117]

[349]    ORDERS that the Defendant pay immediately to the Plaintiff the adjudged costs for the actuarial expert Mr. Perreault of: $10,410.71;[118]

[350]    WITH LEGAL COSTS in favour of the Plaintiff against the Defendant in the main action;

[351]    As between the Defendant and the Contractor in the warranty proceeding, DISMISSES the Warranty proceedings;

[352]    ORDERS the Defendant to pay the Contractor’s legal costs in the Warranty proceedings, excluding any costs for Dr. Lachapelle and for the photocopying of medical reports for which the Contractor will bear its own costs;

[353]    DECLARES that the incident and the direct damages are not governed by the Quebec Loi sur l’assurance automobile.

 

 

 

		_________________________________ Mark G. Peacock, J.S.C.
Me Mike Diomande
Attorney for the Plaintiff
Me Pierre Donati Me Marianne Brouillet DONATI MAISONNEUVE
Attorneys for the Defendant in Warranty (the “Landlord”)
Me Virginie Simard LAVERY Attorneys for the Plaintiff in Warranty (the “Contractor”)
Me Élise Lavoie-Talbot SAAQ Attorney for the Impleaded Party
Dates of hearing:	September 21 to 25 and 28 to 29, 2015, October 5 to 7, 2015

 

ANNEX A

 

TABLE OF CONTENTS

 

Introduction.......................................................................................................................... 1

Factual Context................................................................................................................. 2

The Plaintiff..................................................................................................................................................................................... 3

The Defendant.................................................................................................................................................................................. 3

The Third Party............................................................................................................................................................................... 5

The SAAQ........................................................................................................................................................................................ 6

Liability...................................................................................................................................... 6

Legal Obligations: Landlord Tenant........................................................................................................................................... 6

Governing Law: (a) Provisions of Residential Lease, (b) C.C.Q. Suppletive Articles and (c) Jurisprudence Regarding Landlord's Obligations for Snow and Ice Removal................................................................................................................................... 6

Of what, if any, Application is the S.C.C. Case of Rubis v. Grey Rocks?........................................................................ 11

How did the Fall Occur?........................................................................................................................................................... 11

Why did the Fall Occur: Condition of the Parking Lot Before and at the Time of the Fall............................................ 13

Plaintiff's Complaint to the Landlord........................................................................................................................................ 17

Snow and Ice Removal Operations of Landlord in State of Transition................................................................................ 18

Notices to Tenants to Remove Cars........................................................................................................................................... 18

Role of the Concierge and Role of Mr. Ndala........................................................................................................................... 19

Provision of (a) Salt and Sand at Door of Building and (b) Metal Snow Shovels and Ice Picks by Landlord................ 20

Practical Issue: Snow Removal and De-Icing Between Parked Cars.................................................................................. 21

Conclusion of the Court's Analysis....................................................................................................................................... 22

Legal Obligations: Landlord-Contractor................................................................................................................................. 23

Whether the Contractor Met his Performance Obligations Under the Contract............................................................. 24

Whether this is an “Automobile Accident” Legislated Exclusively by the Loi sur l’assurance automobile?........... 25

Can Removing Snow from an Automobile be Considered Maintenance of an Automobile (« l’entretien d’une automobile »)?         29

Causality......................................................................................................................................................................................... 31

Damages.................................................................................................................................. 32

Evidence of two Medical Experts................................................................................................................................................. 32

Tools for the Court to use in Analyzing Conflicting Expert Reports................................................................................ 32

Areas of Agreement................................................................................................................................................................. 34

Areas of Disagreement............................................................................................................................................................. 36

Pecuniary Damages...................................................................................................................................................................... 41

Expert Actuary / Accounting Evidence................................................................................................................................. 41

Governing Law.......................................................................................................................................................................... 41

Loss of Past Revenues and Loss of Future Revenues: Work Record of Plaintiff.......................................................... 42

Claim by Plaintiff to Remunerate Wife as « Aidant naturelle ».......................................................................................... 49

Claim for Future Expenses....................................................................................................................................................... 50

Non-Pecuniary Damages for Anatomicophysiological Deficit............................................................................................. 51

State of the Jurisprudence....................................................................................................................................................... 51

Andrews Base should be Applied as of What Date: Date of Accident or Date of Service of the Proceedings (or Demand Letter)       55

Assessing Non-Pecuniary Damages: Application to the Specific Facts of the Plaintiff's Case................................... 55

Amount Awarded for Non-Pecuniary Loss.......................................................................................................................... 58

The SAAQ and the Contractor’s Third Party's Entitlement to Legal Costs under the C.C.P. in effect January 1, 2016.        60

CONCLUSIONS........................................................................................................................ 60