Court of Appeal Decision of the Week

When Do Businesses “Occupy” Municipal Sidewalks – For “Slip and Fall” Purposes

Case: MacKay v. Starbucks Corporation, 2017 ONCA 350 (CanLII)

Keywords: Starbucks; Slip and Fall; Occupiers’ Liability Act, R.S.O. 1990, c. O.2

Synopsis:

The Respondent falls on an ice-covered patch of sidewalk near a Starbucks patio. Based on the evidence (including testimony from a Starbucks shift manager who relayed his instruction to ensure the safety of customers by clearing the patio entrance with a shovel and salt) the Trial Judge determines Starbucks is an occupier per the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and owes the Respondent a duty of care.

On Appeal, the Court of Appeal addressed two issues:

  1. did the Trial Judge err in her conclusion Starbucks was an occupier of the area of the sidewalk leading to its patio where the respondent slipped and fell?
  2. if that finding was in error, did Starbucks nevertheless owe a common law duty of care to the respondent?

The Court of Appeal dismisses Starbucks’ appeal, finding it was open to the Trial Judge to conclude Starbucks was an occupier and no common law duty of care arises in the case.

Importance:

Citing Bongiardina v. Vaughan (City), 2000 CanLII 5408 (ONCA), the Court of Appeal determined the clearing of snow and ice from sidewalks is the legal responsibility of the municipality, subject to two important exceptions:

  1. if the homeowner is deemed to be an occupier of the sidewalk by assuming control of it; or
  2. if the homeowner allows something originating from their property (such as water) to flow onto the sidewalk, causing injury. (See at para. 30).

What is required to be deemed to be an occupier of the sidewalk? Again referring to its decision in Bongiardina, the Court of Appeal confirmed that clearing the snow is not quite enough – “More will be needed to meet the definition and impose civil liability.” (See para. 31). The Court went on to maintain the Trial Judge’s finding was not based solely on its finding Starbucks made efforts to clear snow and ice from the sidewalk. Instead, the decision was based “…expressly on the combined effect of her factual findings, set out in para. 7, and her application of the Act and the case law to those findings.” (See para. 32).

The Court of Appeal rejected the Appellant Starbucks’ submission the Trial Judge’s decision improperly shifts responsibility from the municipality to storefront owners and occupiers, stating there is no “blanket rule”. (See para. 35). The “purpose and policy” of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 is to impose liability on those who “by their conduct, assume control over and responsibility for” any portion of adjacent municipal sidewalks. (See para. 38).

With respect to the potential existence of a common law duty of care, the Court of Appeal refused to recognize a general common law duty of care owed by an adjacent property owner or tenant in respect of sidewalks abutting their property – “The only duty is the statutory duty that is owed by a person who meets the definition of occupier under the Act”. (See para. 46).

Counsel for the Appellant: Bruno Roti (Blacklock Law Firm Professional Corporation, Toronto)

Counsel for the Respondent: Murray Tkatch and Barbara Opalinski (Tkatch & Associates, Toronto)

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Posted: Wednesday, May 31, 2017