When is a Commercial Owner Liable for a Fall on an Adjacent Sidewalk?

In its recent summary judgment decision, Janssen v. William and Markle Jewellers Ltd.,¹ the Ontario Superior Court of Justice considered the scope of control required for a commercial owner to be an occupier under the Occupiers' Liability Act² ("the Act").

Janssen involved a plaintiff that slipped and fell on an icy sidewalk outside the entrance of the defendant's jewellery store. This jewellery store was located in a two storey building. The defendant was a tenant of this building. The owner, surprisingly, was not named in this action.

1. Is the Tenant an Occupier pursuant to the Act?

Section 1 of the Act states:

"occupier" includes,

(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises; ("occupant")³

The tenant took the position that absent special circumstances, the owner or occupier of land adjacent to a municipal sidewalk is not an occupier of the sidewalk as contemplated by s.1 of the Act.

The plaintiff, not surprisingly, took the opposition position on the motion. Pursuant to a municipal bylaw, the defendant in Janssen was required to remove snow and ice from the sidewalk adjacent to its store. The plaintiff argued the tenant, therefore, exercised a sufficient amount of control over this area of the sidewalk to be considered an occupier under the Act. The plaintiff noted various other factors to support her position. These factors included that she fell on an area that was not part of the main sidewalk, but an area that was in between the main sidewalk and the entrance of the store. She claimed that this area was less than a foot away from the entrance of the store and was used almost primarily by customers of the store. She also noted that a brick wall separated the defendant's store from a neighbouring store. She claimed this brick wall stretched out onto the sidewalk by 3-4 inches which caused that area to be used exclusively by customers entering and leaving the store. The plaintiff claimed that the accumulation (no pun intended) of these factors was sufficient.

Ultimately, the court concluded that the tenant was not an occupier as per the Act. In its assessment, the court distinguished a variety of past cases from the one at hand.⁴In most of these cases, the defendant's conduct demonstrated that it had exclusive, or almost exclusive, control over the adjacent property of which it was found to be an occupier of. In Janssen, the court determined that there was not sufficient evidence to conclude that the area in which the plaintiff fell was under the exclusive control of the defendant. The court explained:

...The fact a property owner has taken on the task of removing snow and ice from a municipal sidewalk is not sufficient to make the owner an occupier of the sidewalk. The fact that patrons of the store must use the portion of the sidewalk on which the fall occurred to enter and exit the store does not, in and of itself, make the owner of the adjacent property or its tenants "occupiers" of the sidewalk.⁵ [footnotes omitted] [emphasis added]

2. Did the Tenant Owe a Duty of Care to the Plaintiff at Common Law?

...the legal responsibility of snow and ice build-up on a city sidewalk adjacent to a house belongs to the city.

On this point, the Court referred to Ontario Court of Appeal decision Bongiardina v. Vaughan (City).⁶ The court reiterated that the legal responsibility of snow and ice build-up on a city sidewalk adjacent to a house belongs to the city.

The court explained that the tenant's duty under the common law was to ensure that conditions or conduct occurring on the premises did not extend on to the sidewalk and harm pedestrians.

The plaintiff claimed that the eaves trough on the building in which the defendant's store was located had a defect which caused water to leak from it and create ice on the sidewalk. The Court determined that there was insufficient evidence to substantiate this allegation. The Court further noted that even if any liability concerning the eaves trough did exist, this liability would be associated with the building's owner, not the tenant who was simply operating the jewellery store located in the premises. As noted above, the building's owner was not a named defendant in this action.

Takeaways

The amount of control necessary to establish that a commercial owner or tenant is an occupier of a municipal sidewalk is a fact-specific inquiry. After recent decisions such as Mackay v Starbucks,⁷parties are eager to shift liability onto commercial entities, as it is easier to establish negligence on a private party than gross negligence on a municipality.

However, as the Court here demonstrated, simply clearing snow and ice from a city sidewalk is not enough to be deemed an occupier. An individual's conduct must display clear indications of exclusivity in order for it to be deemed an occupier. Insurers, commercial enterprises that own or operate buildings adjacent to city sidewalks, property managers and snow removal contractors should take note of this decision so that it doesn't slip their mind when defending claims of this nature.

Plaintiffs should also heed the Court's warning and include all relevant parties so they are not left out in the cold.

2019 ONSC 425 [Janssen].
R.S.O. 1990, CHAPTER O.2.
Ibid at s.1.
See: Moody v. Toronto (City), [1996] O.J. No. 3418 ; Bogoroch v. Toronto (City) [1991] O.J. No. 1032 (Gen. Div.);MacKay v. Starbucks, 2017 ONCA 350.
Ibid at para 25.
[2000] O.J. No. 2751.
2017 ONCA 350.