A municipality’s duty is to keep its roadways and sidewalks in a reasonable state of repair, having regard for its nature and character.  Moreover, a Plaintiff seeking compensation because of injuries sustained due to snow and ice on a sidewalk will have to prove “gross negligence” on the part of the municipality with respect to its maintenance of the sidewalk.

Sidewalks, however, are abutted by residential, commercial and institutional properties.  In some instances, the road allowance encroaches onto these properties.  In other cases, the adjacent property owner many take on the winter maintenance of a certain portion of the road allowance.   Sometimes this property owner will do the opposite, and will not take any steps to undertake winter maintenance on its property, to the extent that it is part of the municipal road allowance, assuming that this will be looked after by the municipality.   This paper will examine the situations in which an adjacent property owner may, or may not be found liable for hazards on the road allowance.

The general rule is that in the absence of “special circumstances”, an adjacent property owner will not be found liable for the presence or absence of a hazard on the road allowance.   The enaction of a by-law by a municipality requiring residents to shovel and salt the sidewalk in front of their house has generally not been deemed by the court to constitute “special circumstances”.   For example, in the case Bongiardina v. City of Vaughan (2000), 49 O.R. (3d) 641 (Ont. C.A.) the Plaintiff fell on a snow-covered sidewalk.  The City of Vaughan had enacted a by-law which required residential property owners to clear the sidewalk outside their house and on this basis, commenced a third party claim against the homeowners outside whose house the Plaintiff fell.  The homeowners successfully brought a motion for summary judgment seeking to dismiss the third party claim.

This motion was appealed to the Ontario Court of Appeal, which concluded that there was no common law duty on a property owner to clear snow and ice from the public sidewalk in front of their property.   Instead, snow and ice accumulating on the sidewalk is the responsibility of the municipality.   However, the Court of Appeal recognized two exceptions to this general rule, as follows:

1. The adjacent property owner assumes control of the sidewalk so as to become an occupier herself, or;

2. The adjacent property owner fails to ensure that conditions or activities on the property do not flow off the property and cause injuries to persons nearby.

As such, it was concluded by the Ontario Court of Appeal that the institution of a municipal by-law requiring adjacent property owners to clear the sidewalk in front of their house was not sufficient to give rise to a duty of care on the part of an adjacent property owner to users of the sidewalk.

Similarly, In Bondy v. City of London [2013] O.J. No. 1281 (Ont. S.C.J.), the Plaintiff slipped and fell on ice while crossing a driveway approach on foot.  The driveway approach was part of the municipal road allowance.  The Plaintiff commenced an action against the owner of the property to which the driveway approach led, as well as the City pursuant to its obligations under the Municipal Act, 2001.   The adjacent property owner gave evidence at trial that it did not salt driveway approaches on the basis that it was part of the road allowance.  The City’s position was that it did not salt driveway approaches either, as it had a by-law placing this obligation upon adjacent property owners.   The trial judge readily concluded that driveway approaches were part of the “highway” and their maintenance formed part of the City’s obligation under s.44(1) Municipal Act, 2001.   The Court further stated that the City could not slough off this duty on adjacent landowners through the enaction of a by-law.   This decision was subsequently also affirmed by the Ontario Court of Appeal.

In Gribowski v. Singh [2013] O.J. No. 795 (Ont. S.C.J.), a case which was argued by Boghosian + Allen LLP, the Court came to the opposite conclusion of the court in Bondy.  In Gribowski, the Plaintiff was walking across a driveway approach in Mississauga adjacent to the home of Mr. and Mrs. Singh where it crossed the sidewalk, and fell on an accumulation of snow and ice.   Mr. and Mrs. Singh moved for summary judgment dismissing the claim against them on the basis that the fall occurred on the municipal road allowance, such that they owed no duty of care to the Plaintiff.

Mr. and Mrs. Singh gave evidence that they hired a winter maintenance contractor to plough and salt their entire driveway, including the approach where the Plaintiff fell, and they too, would on occasion, shovel and salt themselves in between the contractor’s visits.   The City of Mississauga’s evidence was that if it were to conduct winter maintenance on driveway approaches, this would increase the City’s winter maintenance budget exponentially.

The Court went on to consider whether Mr. and Mrs. Singh had, by their actions, assumed sufficient control of the driveway to become occupiers themselves.   In this regard, the court noted the Singh’s built the driveway (including the apron) over the road allowance, took on an active role in its winter maintenance, and were its primary, if not its only users.  Given the foregoing, the Court declined to order summary judgment dismissing the action against the Singh’s, and left the issue as to whether the Singh’s could be deemed occupiers of the driveway apron to the trial judge on the basis of a full evidentiary record.

In Bogoroch v. City of Toronto [1991] O.J. No. 1032 (Gen Div), the Plaintiff slipped and fell on ice on a municipal sidewalk outside a Kitchen Table store at 389 Spadina Avenue, Toronto and commenced suit against both the City and Kitchen Table.   The action was dismissed against the City prior to trial.   The Kitchen Table had obtained a permit from the City of Toronto allowing it to use about 25% of the width of the sidewalk in front of the store to display items on tables outside the store.  Moreover, The Kitchen Table’s staff also undertook to keep the sidewalk in front of its store free of snow and ice by salting and sweeping.  There was no evidence at trial, however, that the City varied from its usual winter maintenance practices outside the store because of the store conducting its own winter maintenance, or that the City requested the Kitchen Table do its own winter maintenance as a condition of the permit being issued.

Nonetheless, the trial judge concluded that by placing its wares outside the store, Kitchen Table had, in effect, appropriated the entire sidewalk and turned it, in effect, into an additional aisle in its store, thus giving the Kitchen Table “physical possession” of the entire sidewalk and rendering it an occupier pursuant to s.1(a)(i) Occupiers’ Liability Act.   The judge specifically rejected the Kitchen Table’s argument that as the permit issued by the City of Toronto only pertained to the part of the sidewalk where the merchandise stalls were actually placed, this it was only an occupier of this portion of the sidewalk.

The most recent court authority on the issue of the liability of property owners adjacent to the road allowance is MacKay v. Starbucks Corp [2017] O.J. No. 2228 (Ont. C.A.).   In this case, the Plaintiff slipped and fell while entering a Starbucks Patio on Queen Street in Toronto which abutted the municipal sidewalk.   The patio was enclosed by a fence which had a 3-4’ wide opening to allow customers to access the patio from the sidewalk.   The Plaintiff fell on ice on the sidewalk just outside this opening.   The evidence at trial was that Starbucks’ staff, when they sanded or salted the patio, would also sand and salt the municipal sidewalk just outside the opening to the patio.   This area was described by one trial witness as a “passage or corridor” that customers had to use to get into the Starbucks.   At trial, the judge concluded that by building this fence and patio as it did, Starbucks essentially directed the ingress and egress of customers from its store across this section of municipal sidewalk, and as such was in physical possession of same, so as to make it an occupier pursuant to s.1(a)(i) Occupiers’ Liability Act.

The Court of Appeal agreed with the trial judge’s reasoning, noting that the fact that Starbucks cleared snow and ice from the sidewalk was not sufficient to deem it an occupier of a sidewalk, but that the manner in which Starbucks had configured the patio and entrance to the store such that the adjacent sidewalk was used so heavily by its patrons gave it a sufficient degree of physical possession over the sidewalk to render it an occupier.   The Court concluded that the foregoing was in keeping with the purpose of the Occupiers’ Liability Act to impose liability on those who assume control over or responsibility for a particular premises, but who fail to keep same reasonably safe.

These decisions, and in particular the decisions in Bondy and Gribowksi, are not easy to reconcile.   However, what is clear is that a municipality cannot insulate it from liability for slips and falls on municipal sidewalks simply by enacting a bylaw that requires residents to clear the snow and ice in front of their house.   Instead, for a municipality to be successful in defending claims where there is an adjacent property owner in the mix, it must focus on the use that the adjacent property owner made of the road allowance, and whether this use is sufficient to deem it an occupier in “physical possession” of the property.   At the investigation stage of any such claim, it is important to look at the physical characteristics of both the road allowance and the adjacent property and the manner in which they are used, both by the general public and the adjacent property owner.   Once litigation has commenced, counsel for the municipality must focus, at the discovery stage, on these issues as well.