Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Morguard Corporation could demonstrate that Ms. Lonsdale’s claim had no merit, warranting summary dismissal.

• Dispute focused on whether Morguard adhered to its snow and ice removal policy on March 15, 2018, particularly regarding the application of pickle mix.

• The evidentiary record was unclear due to the absence of sworn firsthand evidence about the specific snow removal actions taken on the incident date.

• The court considered but did not fully accept new affidavit evidence from Paul Dimal, as it did not confirm the truth of his prior statement.

• The court found that genuine issues of fact remained regarding Morguard’s adherence to its safety system, precluding summary dismissal.

• Costs for the summary dismissal application were awarded to Ms. Lonsdale, with further submissions on costs invited if necessary.

Background and facts of the case

Kimberly Marie Lonsdale, a tenant at a condominium complex owned and operated by Morguard Corporation, Corporation Morguard operating as Morguard Residential, ABC Corporation operating as Wyldewood Estates, and Morguard Residential Properties (1) Inc., slipped and fell on an icy sidewalk at the premises on March 15, 2018, at approximately 4:30pm. Ms. Lonsdale alleged in her Statement of Claim that she slipped on an icy patch and suffered damages in the approximate amount of $225,000. Morguard did not deny that Ms. Lonsdale slipped and fell and acknowledged she was a tenant walking between two buildings at the time of the incident. Morguard also acknowledged that three maintenance staff were responsible for snow removal at the premises, that a policy existed to remove ice and snow on an “as needed” basis, and that the staff used various methods and tools for snow removal. All three staff were working at the premises on the date of the incident, and photographs taken by Ms. Lonsdale’s grandson immediately after the incident reflected the state of the sidewalk at that time. The sidewalks had been cleaned at some point during the day before the incident.

Policy terms and evidentiary disputes

Ms. Lonsdale argued that the March 15, 2018 entry in Morguard’s snow removal log only noted that one staff member, “Julian,” performed plowing of the pathways and did not mention the application of pickle mix. She also noted that the statement made by Morguard’s employee, Paul Dimal, on March 21, 2018, was not and continues not to be sworn firsthand evidence before the court. The only sworn testimony about the steps taken by Morguard on the date of the incident was from Ms. Levakova, another employee and corporate representative, who did not have personal knowledge of whether pickle mix was applied to the area where the incident occurred.

Fresh evidence and summary dismissal application

Morguard sought to introduce a new affidavit from Paul Dimal, sworn on June 5, 2023 and filed June 6, 2023, as fresh evidence on appeal. The affidavit attached a typed copy of his March 21, 2018 statement but did not swear that the contents of the statement were true. The court accepted the affidavit as fresh evidence but found it insufficient, as it only confirmed that Mr. Dimal had provided a statement, not that the contents were true. The applications judge had previously rejected Mr. Dimal’s statement as a business record and was not prepared to consider the June 6, 2023 affidavit because it was presented halfway through the hearing.

Court’s analysis and outcome

The court reviewed the standard for summary dismissal, referencing Weir-Jones Technical Services Inc v Purolator Courier Ltd, 2019 ABCA 49, and confirmed that Morguard bore the burden to show that Ms. Lonsdale’s case had “no merit.” The applications judge stated that the evidence did not provide a clear picture of whether the snow and ice removal system was followed on the day in question, and that without such clarity, summary dismissal could not be granted. The appellate judge agreed, noting that the absence of direct evidence and the lack of reference to pickle mix in the snow removal log meant that a genuine issue requiring a trial remained. The court also referenced the Occupiers’ Liability Act, section 5, which sets out the duty of care owed by occupiers to visitors.

Conclusion and result

The court declined to grant Morguard’s application for summary dismissal, holding that the evidence did not establish that Ms. Lonsdale’s claim lacked merit. Ms. Lonsdale was awarded costs for the summary dismissal application, with the parties invited to make written submissions limited to three pages within 45 days if they could not agree on costs. No exact damages were awarded at this stage, as the matter was to proceed to trial on the merits.