Sidewalks, Driveway Aprons & Pedestrians

December 1, 2016 | Theodore J. Madison

You have all been faced with the situation as to who is responsible for maintenance of sidewalks adjacent to an insured’s property and the portion of the driveway that is beyond the sidewalk adjacent to the municipality’s roadway. The caselaw  appears to establish that the homeowner cannot be found liable for damages however, there are exceptions.

The Ontario Court of Appeal in Bongiardina v. York (Regional Municipality), 2000 CarswellOnt 2622, held that under most circumstances, an adjacent property owner is not civilly liable for injuries occurring on sidewalks caused by snow or ice, notwithstanding the existence of a by-law imposing a duty upon adjacent property owners to clear snow and ice. Specifically, the court stated:

The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be ‘No’. Although the ‘neighbour’ principle from McAlister (Donoghue) v. Stevenson, [1932] A.C. 562 (U.K. H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. 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. The 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.[1]

However, the Court qualified this opinion by further holding that there are two exceptions to the above general rule. As such, an owner of property adjacent to municipally owned property on which an injury occurs may be held liable for the injury where:

  1. The property owner is a deemed occupier of the adjacent public property; and
  2. The property owner fails to ensure that conditions or activities occurring on his/her property does not ‘flow off’ onto the public property thereby causing injury to others.[2]

The Court referenced scenarios applicable to both exceptions. An owner of property adjacent to public property may be a deemed occupier of such public property where the owner assumes control of the public property. In the case of Moody v. Toronto (City), 1996 CarswellOnt 4047, the court dismissed a motion for summary judgment brought by the defendant owner of the Toronto Skydome because of ‘special circumstances’[3] relating to the sidewalk on which the alleged injury occurred. Among the referenced special circumstances was the almost exclusive use of the property at issue by the defendant’s patrons.[4]

With respect to exception 2 above, the court referenced Brazzoni v. Timmins (City), [1992] O.J. No. 254, where the Ontario Court of Appeal found both TD Bank and the City of Timmins liable for the injuries of an individual who was injured as a result of snow and ice accumulation on a public sidewalk. The Court found that water flowing from TD Bank’s property onto the public property created a ‘dangerous condition’.[5]

In the recent case of Gribowski v. Singh, 2013 CarswellOnt 1978, the Ontario Superior Court of Justice reaffirmed the law established in Bongiardina. However, in Gribowski, the defendant’s motion for summary judgment was dismissed as there was a genuine issue for trial with respect to whether the defendants were a deemed occupier.

The most recent case is Bondy v. The City of London et. al (2014) ONCA 291 (CanLII). This was an appeal from a decision of Justice Gorman of the Superior Court of Justice wherein she found that the Plaintiff, who slipped and fell on the sloped boulevard between the street and the sidewalk, could not collect from the City of London or the adjacent homeowner.

The action against the City of London was based upon S. 44 (1) of the Municipal Act S. O. 2001 which provides “the municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.” The court found that the boulevard was a highway. Thus, the highest standard to which the area needs to be maintained by anyone is as a highway for vehicles, not as a passageway for pedestrian traffic, subject to special circumstances. The fact that pedestrians cross a road at other than designated areas at intersections does not elevate the standard of maintenance. The appeal against the City of London was dismissed.

With respect to the adjacent property owner, the Court of Appeal rejected the arguments of liability based upon the Occupiers’ Liability Act, RSO 1990 c. O.2, S. 1 3(1) and the street By-Law of the City of London.

The court commented at paragraph 6;

First, we agree with the trial Judge where she stated in para. 76 of her reasons that the By-Law does not impose a duty on the respondent, Ms. Lyszczek, to remove snow and ice. Nor is there anything in the By-Law which makes the respondent an occupier within the meaning of the Occupiers’ Liability Act. Second, there are no special circumstances on the facts of this case that place the respondent in “control” of the boulevard, within the meaning of the Occupiers’’ Liability Act. We agree with Justice Gorman at para. 83 of her reasons, where she stated:

“On the facts before me I am unable to conclude that Ms. Lyszczek exercised any control over the boulevard. She certainly did not restrict others from accessing it. Indeed she did not salt it, on her evidence, because she did not think it was her responsibility to do so.  Accordingly, while it is possible for an adjacent property owner to be held liable under the Occupiers’ Liability Act, I find that Ms. Lyszczek is not liable.”

Beware of exceptions and special circumstances!

[1] Bongiardina v. York (Regional Municipality), 2000 CarswellOnt 2622, at para 19

[2] Ibid at para 20

[3] Ibid

[4] Ibid

[5] Ibid at para 21

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