Barbara K. Opalinski

The appellant appealed a trial judgment finding it liable as an occupier of a municipal sidewalk under the Occupiers' Liability Act.

The respondent slipped and fell on ice at the entrance to the appellant's patio, which opened onto the sidewalk.

The trial judge found the appellant was an occupier of the sidewalk portion at the patio threshold based on its exclusive use of the patio, maintenance of the entrance area, and direction of customer traffic.

The Court of Appeal upheld the finding on a narrower basis, confirming that the appellant was an occupier of only the threshold portion where the fall occurred, not the entire sidewalk area.

The court rejected arguments that the finding undermined the principle that mere snow and ice clearing does not create occupier status, and dismissed the appeal with costs.

The plaintiff slipped and fell on ice near a commercial coffee shop.

During the jury trial, the court was asked to rule on whether the coffee shop was an occupier of its outdoor patio and the adjacent municipal sidewalk.

The court held that the patio was not a common element under the lease and that the coffee shop was its sole occupier.

Furthermore, by constructing a fence that funnelled customers across a specific portion of the municipal sidewalk and by actively clearing and salting that area, the coffee shop assumed sufficient control over the sidewalk to be considered an occupier under the Occupiers' Liability Act.