Landlord Not Responsible for Slippery Sidewalk
By Farid Mahdi
In the recent decision of Burley v. City of Ottawa et. al. (“Burley”),[1] the Ontario Superior Court of Justice reaffirmed that the defendant building owners did not owe their plaintiff tenant a common law duty to maintain the municipal sidewalk adjacent to their property, that they were not occupiers of the municipal sidewalk as defined in the Occupiers’ Liability Act (OLA),[2] that they had no common law duty to warn her of the hazardous condition of the sidewalk, and there was no implied contractual duty to maintain the sidewalk. The tenant’s lawsuit against the landlords was therefore dismissed summarily.
Background
The defendants owned an apartment building in Ottawa. The plaintiff was one of their tenants. After parking her vehicle in her parking spot at the rear of the building, the plaintiff slipped and fell on the public sidewalk as she was walking from the parking lot to the front door of the building.
The plaintiff sued the building owners and the City of Ottawa for her alleged personal injuries stemming from the fall. It was not disputed that she slipped and fell on property not owned by the landlords. The City admitted it was responsible for maintaining the sidewalk where plaintiff fell.
The building owners denied that they owed the plaintiff a duty for maintaining the public sidewalk where she fell. They had retained a contractor to clear snow from the parking lot for the apartment building, the front entrance walkway for the building, and the lane leading to the building’s garbage shed. The contractor was not however hired to and did not clear snow or manage ice on the municipal sidewalks adjacent to the apartment building.
The building owners therefore brought a motion under Rule 20 of the Ontario Rules of Civil Procedure (“Rules”)[3] for a summary judgment dismissing the lawsuit against them.
The Law – Summary Judgment Motions
Under subrule 20.04(2) of the Rules, the court must grant summary judgment if,
- the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
- the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
In determining under clause 20.04(2)(a) whether there is a genuine issue requiring a trial, subrule 20.04(2.1) provides that the court must consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
On a motion for summary judgment, the moving party (here, the building owners) bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party discharges that burden, the onus then shifts to the responding party (here, the plaintiff) to prove that its claim or defence has a real chance of success. If the responding party to the motion can show that there is a genuine issue to be tried, the motion will fail and the lawsuit will continue.[4] Each party must put its best foot forward to show whether there is an issue for trial.[5]
Common Law Duty to Maintain Adjacent Municipal Sidewalk
The court in Burley held that the defendant building owners did not owe plaintiff a common law duty to maintain the municipal sidewalk adjacent to their property.
The courtnoted that in Bongiardina v. Vaughan (City),[6] the Ontario Court of Appeal held that “[t]he snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.” The Court of Appeal in Bongiardina held that a homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks.[7]
The Ontario Court of Appeal has recognized two exceptions to the general principle that a property owner is responsible only for their own property. First, a property owner may be deemed to be an “occupier” of a sidewalk under the OLA if the owner assumes control over the sidewalk or if there are “special circumstances” in which an owner may become an occupier of the public sidewalk.[8] The second exception is that the duty of care on an owner for their own property extends to ensuring that conditions or activities on their property do not flow off the property and cause injury to persons nearby.[9]
Bongiardina reiterated that a property owner or tenant will not be deemed an “occupier” under the OLA of an adjacent public sidewalk merely by clearing that sidewalk of snow and ice, whether in compliance with a municipal by-law obligation or otherwise. More will be needed to meet the definition and impose civil liability.[10]
Occupiers’ Statutory Duty to See Persons Entering Premises Reasonably Safe
In Ontario, the OLA governs the duty of care owed by an occupier of premises to anyone who enters those premises and makes “occupiers” (property owners) liable when someone is injured because of hazards the occupier allowed to remain on the premises, such as icy and snow-covered sidewalks. Section 2 of the OLA replaces the common law duty of care with a single statutory duty.[11]
The court in Burley held that the building owners were not “occupiers” of the municipal sidewalk under the OLA.
In the court’s view, requiring residents to use a municipal sidewalk to access the building’s parking lot was not enough to make the landlord an “occupier” under the OLA. In doing so, the landlord does not assume responsibility for and control of the sidewalk, nor does this constitute special circumstances.
Additionally, the absence of an alternative route onto private property does not make a landlord an “occupier” within the meaning of the OLA. The court was also of the view that the second exception to the general principle, noted above, does not apply in this case. The building owners did not allow conditions or activities on their property to flow onto the adjacent municipal sidewalk that would create a dangerous condition or cause injuries.
Common Law Duty to Warn
The plaintiff in Burley had also advanced the argument that there were special circumstances giving rise to a duty of the building owners to warn her about conditions on the municipal sidewalk. The court held that there was no basis to find that the landlords had a common law duty to warn the plaintiff about the conditions on a public sidewalk adjacent to their property. Whether there may be any other common law duties on adjacent landowners who are not occupiers, such as a duty to warn in appropriate circumstances, will have to be determined on a case-by-case basis.[12]
Implied Contractual Duty to Provide Safe Passage
Lastly, the plaintiff argued the building owners had an implied contractual duty to either maintain the municipal sidewalk between the parking lot and the front door of the building, or to provide the plaintiff direct passage through the building to her rented parking space.
The court reiterated that there are three categories of implied contractual terms:
- implied terms to give business efficacy to a contract;
- implied terms based on custom and usage; and
- implied terms as a matter of law (as the legal incident of a particular class or kind of contract).[13]
While the plaintiff claimed her lease agreement implied that the landlords/building owners were responsible for the safety of the path, the court found that the lease agreement between the parties was effective without implying additional contractual terms.
The plaintiff was supplied with a parking spot, which was accessible from the municipal sidewalk. The parking spot was properly maintained by the landlord. The plaintiff was also provided with a safe means of leaving the building through the front door, which exited onto the sidewalk. No other term was reasonably required in the court’s view to give effect to the lease.
Therefore, there was no implied contractual duty on the building owners to maintain the municipal sidewalk between the parking lot and the front door of the building, nor was there an implied contractual duty to provide the plaintiff direct passage through the building to her parking space.
Disposition
There was no genuine issue requiring a trial. The partial summary judgment was granted. The lawsuit was dismissed as against the building owners. On consent, the City’s crossclaim against them was also dismissed without costs. The plaintiff’s lawsuit as against the City continues.
[4] Sanzone v Schechter, 2016 ONCA 566, 402 DLR (4th) 135, at para. 30, leave to appeal refused, [2016] SCCA No 443; New Solutions Extrusion Corp v Gauthier, 2010 ONSC 1037, at para 12, aff’d 2010 ONCA 348
[5] Toronto-Dominion Bank v Hylton, 2012 ONCA 614, at para. 5.
[6] 2000 CanLII 5408 (ON CA), 49 OR (3d) 641 (CA) [Bongiardina].
[7] Ibid at para 19.
[8] Bongiardina, ibid at para 20; MacKay v Starbucks Corporation, 2017 ONCA 350 (CanLII), 413 DLR (4th) 220, at para. 17 [MacKay].
[9] Bongiardina, supra note 6 at para 21.
[10] MacKay, supra note 8 at 31.
[11] Ibid at para 11.
[12] Ibid at para 45.
[13] Canadian Pacific Hotels Ltd v Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 SCR 711; and MJB Enterprises Ltd v Defence Construction (1951) Ltd, 1999 CanLII 677 (SCC), [1999] 1 SCR 619; see also Geoff R. Hall, Canadian Contractual Interpretation Law, 4th ed (Toronto: LexisNexis, 2020), at pp 187-201.