The lawsuit is in the mail

If a mail carrier slips on your property, you might have to pay—if Ottawa has its way

The lawsuit is in the mail

Andrew Vaughan/CP

Next to soldiers, few on the federal payroll suffer more wounds at work than mail carriers. According to the latest stats, nearly 2,300 Canada Post employees trip and fall on the job every year, twisting ankles and breaking legs and triggering millions of dollars’ worth of compensation claims. On Valentine’s Day 2007, Beverly Collins joined that long list of casualties, slipping on a snow-covered walkway and shattering her wrist. “I knew there was something seriously wrong,” she later testified. “You could see the bone sticking out of my hand.”

Collins applied for, and received, undisclosed benefits under the Government Employees Compensation Act. Later that summer, a federal bureaucrat mailed a letter to the owners of that icy Ottawa property—demanding reimbursement. “I’ve been doing this for 11 years, and I’d never seen any case like this,” says Jaye Hooper, the owners’ lawyer. “My clients were a little taken aback.”

For most Canadians, the reaction would be something closer to “going postal.” Yet as surprising as it may sound, the federal government quietly targets thousands of homeowners a year in an attempt to recoup the hefty costs of mailman mishaps. “From a public policy perspective, it is a balancing act,” says John Norton, an insurance lawyer in London, Ont. “Certainly it does appear like the big, bad government is going after this little homeowner. But if the homeowners did do something wrong—and it was a significant injury that cost the government a lot of money—taxpayers might expect the government to go after the at-fault party because if they don’t, it’s taxpayers who foot the bill.”

Most spills are settled by insurance companies long before they ever reach a courtroom. But the Valentine’s Day mishap, one of the rare cases to result in a lawsuit against a homeowner, raised some troubling questions about how the government actually chooses which properties to target—and just how clean your driveway must be in order to avoid liability. “It is a scary thing for a lot of homeowners, me included,” Norton says.

Like all jurisdictions, Ontario law compels people to keep their properties “reasonably safe” for visitors, whether an invited guest or a door-to-door salesman. However, if a complaint does reach trial, the onus is squarely on the injured party to prove the occupier failed to meet that loosely defined reasonable standard. “If there is an ice storm today, and I don’t clear my walkway for two days, a reasonable person should know that someone could slip and fall and hurt themselves,” explains Jack Smith, president of the Canada Safety Council. “That is where the crux lies.”

On that particular Wednesday morning—Feb. 14, 2007—Ottawa was pounded by one of the worst snowstorms of the season. The weather was so nasty that Collins and her colleagues discussed whether it was even safe to strap on their bags and venture outside. By 9 a.m., though, she was taking the first steps on her daily route: 522 addresses in the capital city suburb of Orléans.

Postal workers have full discretion to skip a house if conditions appear dangerous, and Collins did just that numerous times on the day of her tumble. (She could not recall exactly how many homes she bypassed.) At approximately 11:30 a.m., she made her way to the front door of a home on Fortune Avenue that belonged to Gaetan Ranger and Nathalie Lachance. After closing the mailbox, Collins turned around and headed back down their stone walkway. “The next thing I remember,” she testified, “I was face down.”

Ranger and Lachance had no idea a postie was even hurt on their property until five months later, when the snow had long since melted and that letter arrived from Human Resources and Skills Development Canada. (By then, Collins had received her compensation, and it was the government—not her—seeking reimbursement). The couple contacted their insurance company, but by February 2009—two years after the accident, and no settlement in sight—the feds filed suit. Seeking more than $50,000 in damages, the statement of claim said the couple “failed to maintain their walkway in a reasonably fit and safe condition” and that Collins’s “extensive pain and suffering” was “a direct result” of their “negligence.”

But the government’s case crashed harder than Collins did. During the pretrial discovery phase, when witnesses testify behind closed doors, Nathalie Lachance recalled how she shovelled and salted her property every morning during the winter, and again in the afternoon, if necessary. Like most people trying to recall what they did on a specific morning years earlier, Lachance couldn’t recall her exact movements on Feb. 14, 2007. But she did demonstrate what the judge later described as “a regular regime of inspection, maintenance and monitoring.”

For federal lawyers, Collins’s testimony was even more damaging. The injured carrier, who has endured four surgeries on her wrist (with more pending), said the couple kept “in all honesty, a good residence.” The snow was always shovelled, she said, and not once did she skip the address because of safety concerns. “Obviously, I had a look and I must have felt I wasn’t at risk,” she said. “I didn’t think I was at risk or I wouldn’t have gone.”

Hooper, the couple’s lawyer, did not wait for a trial. She filed a motion for summary judgment instead, arguing that the government’s case had no hope of success and should be thrown out of court. “The fact of the injury in and of itself does not create a presumption of negligence,” Hooper wrote. “When the injured party cannot suggest any negligent act or omission and characterizes the property as well-maintained, what evidence is there that would require a trial?”

Justice Denis Power agreed, tossing the lawsuit—and reassuring all diligent homeowners in the process. “The mere presence of snow and/or ice on a Canadian walkway in February does not, in itself, lead to a conclusion that a homeowner/occupier has not met his/her obligation,” he wrote in his ruling, released in May. “Our winters in Canada are such that people fall all the time without someone being responsible in negligence.”

For obvious reasons, the government chose not to appeal the decision.

Ranger and Lachance declined to be interviewed by Maclean’s. (“They are very relieved that it is finished,” Hooper says.) But their case will no doubt force the feds to think twice before passing judgment on the next person’s de-icing rituals. It should also prompt insurance companies to examine each case a little more closely before cutting the government a cheque.

“Obviously, someone had to make a judgment call whether to pursue this case or not, and they made that judgment call,” Norton says. “It’s easy to say in hindsight they were wrong. But the lesson is that you should not only shovel—but make sure you have enough insurance, too.”

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