Salt, Snow and Ice: A Roll of the Dice
Today's topic was suggested by one of our readers, John, who is often faced with questions and comments from owners about snow removal and salting. Some owners feel their condominium's contractor puts down too much salt, which gets tracked into their homes and ruins the floors. On the other hand, some owners feel the contractor puts down too little, which creates a risk of a slip and fall. Like many issues in condominiums, the board and management are often stuck in the middle. What's a condominium to do?
Why Remove Snow & Ice?
Apart from concern about neighbours being injured in a slip and fall, most declarations require the condominium to maintain the common elements, which includes an obligation to remove snow and ice from walkways, driveways, and parking areas. This is sometimes true even where the driveways or walkways form part of the exclusive use common elements or even part of the units.
In addition, the condominium is considered the occupier of the common elements for the purposes of the Occupier's Liability Act. This means the condominium is responsible for ensuring that people entering upon the property and their personal property are reasonably safe while on the property. This duty extends to conditions on the property, such as snow and ice, as well as activities being carried out on the property. If the condominium fails to properly maintain the property in a reasonably safe condition it could be responsible for damages or injuries that a person incurs on the property.
It is important to briefly discuss a recent legislative amendment related to slip and fall incidents. On January 29, 2021, the Occupier's Liability Act was amended to prohibit legal action for damages for personal injury caused by snow or ice unless written notice of the incident is provided within 60 days of the incident. The notice must contain information about the incident, including the date, time, and location. It must be personally served or sent via registered mail to the occupier or the contractor responsible for snow removal on the property. A judge may find that the failure to give notice within 60 days is not a bar to an action if there is a reasonable excuse (i.e. severe injuries resulting in hospitalization) or the person dies as a result of the incident.
When a condominium receives a notice it should ensure that it promptly shares a copy with the snow removal contractor and any other occupier of the property, such as other condominiums in a shared facilities situation and the management company. The condominium must notify their insurer. The condominium should also take steps immediately to preserve any evidence, such as surveillance footage of the incident, as this evidence may show the condominium took reasonable steps to prevent the incident.
How Can You Address Concerns About Salt and Ice?
If a condominium is receiving complaints about too much or too little salt the board or manager should talk to its snow removal contractor. The contractor might be able to explain why they put down the amount of salt they do or modify the amount they put down in certain areas of the property. For example, in some condominiums there are parts of the property that accumulate more ice than other parts for a variety of reasons, such as exposure to the elements, drainage patterns, or the location of eaves. The contractor may be able to reduce salt in other areas where the risk of slip and fall accidents is lower.
Sometimes condominiums ask the contractor to put down a reasonable amount of salt to prevent slip and falls while providing extra salt to those owners who want to put down more on their walkways or driveways. This can be a good way to address situations where a condominium is faced with some owners complaining about too little salt and others complaining about too much salt.
The condominium could also ask the contractor about alternatives to salt, such as sand or de-icing products. Some of these products may cost more, but they may also do less damage to landscaping or other items so they might be preferred by owners.
Sometimes owners remove the salt on their walkways or driveways or ask the condominium to stop placing salt on their walkways or driveways. Some owners even offer to sign legal documents releasing the condominium and contractor from any claims if they slip or fall as a result of the contractor not placing salt in the area. I would caution condominiums about signing these documents without first speaking to their lawyers and insurers as these documents may not act as a bar to legal action by the owner, which leaves the condominium exposed to potential claims.
I see the snow is falling again this morning, so this was a very timely topic. Thanks for the suggestion John!