It was a cold, grey and dreary day in the middle of an endless Toronto winter. The plaintiff, Wally (not his real name), parked his taxi cab in a parking spot on Bloor Street. He had to see his travel agent to pick up tickets for his warm-weather vacation.
As he was walking past a shoe store, he suddenly slipped and fell, breaking his wrist. After Wally had fallen, he noticed there was a small patch of ice on the municipal sidewalk. Apart from that icy patch, the sidewalk appeared to be clear and dry.
An employee of the shoe store called for an ambulance and Wally was taken to the hospital. The emergency room doctor set his wrist fracture and put his arm into a cast. Wally had to wear the cast for four months. During that time, he was not able to drive his taxi cab and he lost income. After the cast was removed, he returned to driving but his wrist continued to bother him despite continuing physiotherapy.
Wally consulted a lawyer and the lawyer advised him to sue the shoe store and the City of Toronto on whose sidewalk he had fallen. Unfortunately for Wally, his lawsuit was destined to fail from the outset.
Wally’s lawyer relied on the Occupier’s Liability Act in support of the suit against the shoe store. That is a piece of legislation that requires an occupier to take reasonable steps to see that its premises are reasonably safe. The difficulty here is that the shoe store was not an “occupier” of the sidewalk. An occupier is defined as a person who has physical possession of premises; or, a person who has responsibility for and control over the condition of premises or the activities carried on, or control over persons allowed to enter the premises.
Wally fell on a public sidewalk owned by the City of Toronto. The fact that the shoe store undertook to remove the snow and ice from the front of the sidewalk in front of the shoe store is not sufficient to make the shoe store an occupier. There are two recent cases from the Ontario Superior Court of Justice which confirm this.
In Baker v. Perth East Township,  O.J. 793, the plaintiff was injured when he fell on a icy sidewalk in front of Gerber’s Workwear in the Township of Perth East. Gerber’s Workwear rented the store from the co-defendant Mitchell. The plaintiff was on his way into the store when he fell. He was helped by a friend into the store where an employee acknowledged that there was an ice problem in front. The employee said that she intended to put salt down on the sidewalk. The plaintiff’s claim against Gerber’s Workwear was based on an argument that the store had assumed responsibility for clearing snow from the sidewalk, and that made it an occupier of the sidewalk.
Gerber’s Workwear brought a motion for summary judgment. Mr. Justice Hambly heard the motion and dismissed the plaintiff’s case. The judge found that the Township was the occupier of the sidewalk and not the store. Gerber’s Workwear did not become an occupier by virtue of the fact it cleared snow from the sidewalk.
Similarly, in Graham v. 7 Eleven Canada Inc.,  O.J. No. 544, the plaintiff slipped and fell on an icy sidewalk adjacent to a convenience store operated by the defendant 7 Eleven and owned by the defendant Monk Realty. The City of Toronto owned the sidewalk where the plaintiff fell.
The court held that the fact the adjacent property owner, Monk Realty, cleared the snow and ice from the sidewalk in front of the store and did not render them liable at common law. Madam Justice Sachs cited at the decision of the Court of Appeal in Bongiardina v. Vaughan (City), which held that a municipal by-law requiring an adjacent landlord to clear snow from the municipal sidewalk cannot render the adjacent landlord liable at common law.
“The snow and ice accumulating on public sidewalks and the potholes on the street in front of the houses are the legal responsibility of the municipality, not the adjacent property owner.”
Generally, an adjacent property owner will not be liable for the condition of adjacent municipal sidewalk.
However, there are a couple of exceptions to this principle. First, where an adjacent owner of property has assumed sufficient control over the sidewalk, it can be considered an occupier of the sidewalk and can be found liable. (Examples include a merchant who uses the sidewalk to sell its goods, or a restaurant owner who uses the sidewalk to operate a patio.)
Second, an adjacent owner can be liable where a nuisance flows onto the sidewalk from the adjacent property. (For example, where water leaks from an adjacent building onto the municipal sidewalk and then freezes, the building owner may be liable.)
Wally’s case did not fit within one of these exceptions, and so the shoe store’s lawyer was able to argue that the shoe store was not an occupier of the sidewalk and it was not liable for an accumulation of ice on the sidewalk.
Wally’s case against the City did not go so well either. The City of Toronto is not governed by the Occupier’s Liability Act. Rather, there is special legislation that governs the City of Toronto’s obligations to maintain its sidewalks, called the City of Toronto Act.
The City’s lawyer raised two defences provided by the City of Toronto Act, which applied in Wally’s case. First, the City did not know there was a problem in front of the shoe store and it could not be expected to know there was a small patch of ice there. Second, the City had in place a reasonable system to look after the sidewalk on Bloor Street.
The City’s system was not required to be perfect. The City of Toronto maintains more than 4,100 kilometres of streets. Double that for the sidewalks. That is the distance from Brazil to the middle of Africa. The City’s employees cannot possibly be everywhere during the winter months to remove snow and ice and the law recognizes this.
The City’s lawyer was able to point to records that showed its employees had patrolled Bloor Street several times in the four to five days before Wally’s accident. The records showed the City applied salt and sand. The City’s lawyer argued these attendances were evidence of a reasonable system.
Faced with the legal arguments put forward by the shoe store’s lawyer and the City’s lawyer, Wally’s lawyer had to explain to Wally that his case was not going to succeed. Wally agreed to settle his case on the basis that he would simply walk away. The City and the shoe store agreed to let Wally abandon his case without costs.
Poor Wally. In addition to suffering a painful injury and a loss of income, he had the unpleasant experience of starting a lawsuit that had no merit.
Slip and falls on public sidewalks are difficult to cases for plaintiffs to win. Only in exceptional circumstances will liability be found against the adjacent property owner. And to win a lawsuit against a municipality, an injured person must demonstrate that the municipality failed to have in place a reasonable system to maintain the sidewalk.