By Michael Colwell, Lawyer; and Bonnie Hu, Lawyer
Almost 20 years ago, the Alberta Court of Appeal affirmed the decision in Kluane v Chasse, 2001 ABQB 244, finding that residential property owners are not liable to a plaintiff who slips and falls on snow and ice on adjacent City sidewalks. More recently, the British Columbia Court of Appeal arrived at the same conclusion in Der v Zhao, 2021 BCCA 82.
Slip and fall proceedings usually engage three aspects of the law: i) occupier liability statute; ii) municipal snow and ice removal bylaws; and iii) the common law.
Alberta’s Occupiers’ Liability Act, RSA 2000, c O-4 defines an “occupier” as
- A person who is in physical possession of premises, or
- A person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises
The definition of an occupier in British Columbia’s Occupiers Liability Act, RSBC 1996, c 337 is identical to the Alberta definition. Given this definition, owners and occupiers of residential and commercial property (collectively referred to as “owners” for ease of reference) are not typically occupiers of City sidewalks as they have neither physical possession of the sidewalk nor control and responsibility over who is allowed to use it. City sidewalks are the legal responsibility of the municipality.
Similarly, municipalities in both provinces often implement local bylaws requiring owners and occupiers of private property to remove snow and ice from adjacent public sidewalks within a certain period of time following snowfall. However, although such bylaws carry regulatory penalties, both Kluane and Der confirm that plaintiffs cannot rely on these bylaws to impose liability on private property owners where there is no express language establishing civil liability for failing to remove snow and ice.
Finally, citing the Ontario Court of Appeal in Bongiardina v York Regional Municipality, 2000 CanLII 5408 (ON CA), the Courts in Kluane and Der held that there is no common law duty on the owner of property adjacent to sidewalks to clear snow and ice from the same. The property owner’s duty of care stops after ensuring that their property is maintained in a reasonable condition such that persons entering it are not injured. There is no duty for the owner to maintain their neighbour’s property – their liability ends at their own property boundary.
There are two exceptions to this principle. First, a private property owner may be deemed to be an occupier of abutting public property if they assume control over it. This can include controlling access to the public property or using it to display merchandise on a continuing basis. Second, a private property owner must ensure that unusual risks from their property do not escape onto neighbouring properties. In other words, private property owners are liable for injuries caused by melting snow and water that flow from that property onto the sidewalk.
Since Kluane, plaintiffs who have been injured on icy sidewalks have tried creative arguments to impose liability on property owners. In Lewandowska v Vander Woude, 2019 ABPC 115, the plaintiff argued that the property owners created a hazard by compacting the snow driving over the sidewalk to access their driveway. However, the Court found no unusual risk as this is a normal use of the sidewalk. Further, compacted snow is very commonplace in Alberta.
The plaintiff also speculated that the property owner’s roof water drainage system channeled water onto the sidewalk via the driveway. The Court dismissed this as there was no evidence that this happened. The result would have differed if evidence showed that a significant quantity of water escaped from the property to the sidewalk or if a downspout ejected water at a high velocity such that water would flow onto the sidewalk.
In Der, the plaintiff asserted that British Columbia had not yet considered civil liability for icy sidewalks at an appellate court level like in Ontario and Alberta. The plaintiff invited the Court of Appeal to find a novel duty of care or to apply a foreseeability and proximity analysis to impose liability on the property owner. On reviewing the existing case law, the Court observed that this type of liability had already been well considered. It agreed with the consistent holding that there was no novel duty of care.
Although the British Columbia Court of Appeal concluded that the type of injury was reasonably foreseeable, the relationship between a pedestrian and residential property owner is not close or direct enough to justify imposing a duty of care. Pedestrians simply cannot rely on each and every residential property owner whose property they pass to ensure their safety. Importantly, the Court differentiated between residential and commercial properties in its proximity analysis. While residential owners have no control over who uses the sidewalk, commercial owners invite the public to access their properties and benefit from the public’s use of adjacent sidewalks.
Indeed, the Court in Reidy v. Kamloops Hotel Ltd. (1997), 41 B.C.L.R. (3d) 338 found the defendant hotel liable for a slip and fall on the public sidewalk near the hotel’s exit. The Court also noted that the liability finding would be different if the fall had occurred further away. The Court in Der also referenced MacKay v Starbucks Corporation, 2017 ONCA 350, in which Starbucks was found to have control and responsibility over the municipal sidewalk at the entrance of its patio. These cases support a duty of care owed by a commercial property owner to those accessing their premises. Interestingly, Alberta case law has not yet considered this distinction between residential and commercial property owners.
Given the aforementioned Alberta and British Columbia case law, the takeaways with respect to icy sidewalks in Western Canadian winters are as follows. Private property owners should ensure that melting snow and water do not escape their property. While both residential and commercial property owners should refrain from taking control of adjacent public sidewalks, the latter may not be able to avoid the same and should take extra care to ensure that sidewalks close to their public entrances and exits are hazard-free. As for pedestrians, the most reliable way to avoid slip and fall injuries is to carefully tread through winter landscapes with proper footwear.
Should you have any questions with respect to this bulletin, or if you would like more detailed information related to duty of care occupier liability, please contact the following member of the Brownlee LLP Insurance Practice Team: