Canada: Home Depot Not Liable for Slip and Fall in Parking Lot

In Alberta, occupiers owe a duty to maintain a reasonable system of maintenance and inspection to keep their premises reasonably safe for lawful visitors. This duty can be discharged either by the occupier itself, or by hiring an independent contractor. With respect to snow and ice removal maintenance, the courts have held that implementing a system where the independent contractor is to clear snow and ice after snow accumulation exceeds two inches is reasonable if combined with a system of inspection.

In Reichert et al v. Home Depot Canada Inc. et al, 2017 ABQB 184, the Plaintiff slipped and fell on some freshly fallen snow (between half-an-inch and one inch) in the parking lot of a Home Depot in Calgary, Alberta at 10:00 a.m. It had snowed earlier that morning. However, only trace amounts of snow had fallen during the prior two weeks. There was no snow on the ground the day before the slip and fall.

Home Depot had hired an independent contractor to perform snow and ice removal maintenance for the parking lot. The contract implemented the two-inch threshold. Home Depot also performed its own inspections of the parking lot every day before the store opened. Accordingly, Home Depot, arguing it had implemented a reasonable system of maintenance and inspection, made an application for summary dismissal. The independent contractor made a concurrent application, as well.

Both applications were heard on the same day before Master Prowse. However, in his reasons, he dismissed arguments about the inspections performed (or not performed) by the parties as irrelevant. Given the snow “was there for all to see”, the issue before the court was whether anything ought to have been done about the snow before the slip and fall.

Master Prowse accepted the case law regarding the reasonableness of the two-inch threshold. He also accepted evidence that the two-inch threshold was industry standard. Master Prowse finally found even if this standard was not reasonable, it would be unsafe to operate snow ploughs in the parking lot while customers were attending the store. The evidence suggested it would be safer to plough the snow at night after the store had closed and the parking lot was empty. The fresh snow that fell earlier that morning could not have reasonably been removed prior to the slip and fall. As a result, Master Prowse determined Home Depot and the independent contractor would very likely succeed at trial. Thus, he granted the summary dismissal applications.

Reichert stands for the proposition that the two-inch threshold is reasonable and industry standard. It is unreasonable to expect an occupier to clear fresh snow from a parking lot filled with customers and their vehicles. Instead, that snow should be cleared at night. Therefore, an occupier, who has implemented a system of maintenance and inspection that incorporates the two-inch threshold for its parking lot, will not likely be held liable for a slip and fall that occurs in that parking lot.

Home Depot Not Liable for Slip and Fall in Parking Lot


Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC’s association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Video Surveillance Helps Deflate Personal Injury Claim

In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries.  Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.

In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages.  Fault was admitted by the Defendant motorists.  The Plaintiff was self-represented and sought approximately $1.4 million in damages.  The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages.  In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114]     The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115]     On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116]     Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117]     Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118]     Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119]     In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120]     At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121]     Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122]     What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123]     She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124]     She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125]     On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127]     Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

[315]     I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.

$110,000 Non Pecuniary Assessment For Chronic Pain and Major Depressive Disorder

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in three separate collisions.

In today’s case (Parhar v. Clarke) the Plaintiff was injured in three collisions that the Defendants accepted blame for.  She suffered chronic physical and psychological injuries as a result including thoracic outlet syndrome, chronic pain,  major depression and anxiety.  Her prognosis for further improvement was guarded.  In assessing non-pecuniary damages at $110,000 Mr. Justice Pearlman provided the following reasons:

[215]     Ms. Parhar was 27 years old at the time of the first accident and 35 at the time of trial.

[216]     The injuries she suffered in the accidents include injuries to the muscles of her neck, shoulder girdle and back with attendant muscle spasm, low back pain, thoracic outlet syndrome, persistent headaches, TMJ pain and dysfunction and soft tissue injuries to her knees and right hip.

[217]     In addition, as a result of the defendants’ negligence, the plaintiff sustained a chronic pain disorder, a major depressive disorder, a generalized anxiety disorder and PTSD.

[218]     Although there has been some improvement in the plaintiff’s condition, Ms. Parhar’s prognosis is guarded in light of the persistence of her symptoms of pain and her psychological conditions.

[219]     Further psychological counselling would assist Ms. Parhar in coping with chronic pain and managing the functions of daily living. Exercise and conditioning will probably produce further improvements to her symptoms of neck, shoulder and back pain, and may also alleviate her headaches. However, after eight years of chronic pain, it is unlikely the plaintiff will make a full recovery and probable that she will experience flares of her back and neck pain, anxiety and depressive moods indefinitely.

[227]     Taking into account the Stapley v. Hejslet factors, all of the authorities cited by counsel, the risk that the plaintiff would have suffered a recurrence of depression in any event of the accidents, and all of Ms. Parhar’s particular circumstances, I would assess her damages for pain and suffering and loss of amenities and enjoyment of life in the amount of $110,000…

Court Dismisses Injury Claim in “Slow-Moving Parking Lot Accident”

I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence.  In short, courts routinely accept motorists can be injured in low velocity collisions.  Despite this, courts occasionally dismiss an injury claim involving modest forces.  Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.

The Plaintiff alleged injury.  The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.

In dismissing her injury claim Mr. Justice Brown provided the following reasons:

[53]         I will now discuss the evidence and state my findings:

1.       The Chevrolet was stationary at impact.

2.       The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.

3.       The vehicles were at a slight angle on impact.

4.       The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.

5.       The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.

6.       There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.

7.       The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.

8.       The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.

9.       The plaintiff had recovered from the injuries related to her previous accident.

10.     The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.

11.     The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.

12.     As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.

13.     It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

Street Racer Found Partly Liable for Other Vehicles Fatal Crash

Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.

In today’s case (Suran v. Auckland) Cadillac and a Chrysler 300 were involved in a street race. Police subsequently blocked off the road and the driver of the Cadillac was apprehended The driver of the Chrysler backed up and drove around the road block and “proceeded down a steep embankment and dropped over a retaining wall, before finally coming to rest at the bottom of a ravine.”. A passenger in the vehicle died when”he was unable to extricate himself from the vehicle when it caught fire. His body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground.”

The passenger’s family sued and both motorists were found partly to blame with the passenger himself being faulted with 25% contributory negligence. In holding the driver of the Cadillac partly at fault for the death even though he was in police custody at the time Madam Justice Burke provided the following reasons:

[195] I conclude Mr. Marwaha in the Cadillac and Mr. Auluck in the Chrysler 300 were engaged in a common (unlawful) course of action that ultimately precipitated the catastrophic accident and death of Mr. Suran. It was reasonably foreseeable, as argued by Ms. Suran, that participation by Mr. Marwaha in a street race at high speed on a busy street would attract police attention and action, which it did. It was also reasonably foreseeable that Mr. Auluck would flee the police as he did, based on his erratic and dangerous behaviour throughout the evening.

[196] There is, therefore, sufficient proximity and foreseeability for Mr. Marwaha to be found partially liable for the accident. As he was indeed stopped by the police and could no longer participate in the race, I conclude Mr. Marwaha’s culpability for the accident lies at 10%.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.

In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

[84]         … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest