Court of Appeal for Ontario
Date: May 2, 2017 Docket: C60621 Judges: Laskin, Feldman and Hourigan JJ.A.
Parties
Between
Carole MacKay Plaintiff (Respondent)
and
Starbucks Corporation, City of Toronto, K.J. Beamish Construction Co. Limited, and Queen Hammersmith Holdings Inc. Defendants (Appellant)
Counsel
Bruno Roti, for the appellant
Murray Tkatch and Barbara K. Opalinski, for the respondent
Hearing
Heard: September 8, 2016
On appeal from: The judgment of Justice Mary A. Sanderson of the Superior Court of Justice, sitting with a jury, dated January 18, 2016, with reasons on the relevant ruling reported at 2015 ONSC 4718, 58 R.P.R. (5th) 310.
Decision
Feldman J.A.:
Introduction
[1] Following a trial by judge and jury, the jury found that the place where the respondent fell was on an ice-covered municipal sidewalk at the entrance to a patio in front of Starbucks. In a ruling before the case went to the jury, the trial judge held that Starbucks was an occupier of that part of the sidewalk and therefore owed the respondent a duty of care. The jury found that Starbucks breached its duty of care as an occupier of the sidewalk.
[2] The trial judge's finding that Starbucks was an "occupier" of that portion of the sidewalk, within the meaning of the Occupiers' Liability Act, R.S.O. 1990, c. O.2 (the "Act"), was a ruling of mixed fact and law. This is an appeal of that ruling.
Facts
[3] The Starbucks location where the fall occurred is in Toronto, at the corner of Queen Street and Hammersmith Avenue, part of a small retail mall where Starbucks is a tenant. As part of its lease, Starbucks has an outdoor patio that abuts the municipal sidewalk along Hammersmith. The patio is enclosed by a fence that includes a 3-4 foot opening, the effect of which, the trial judge found, "seamlessly" joins the patio and the sidewalk.
[4] The trial judge accepted the evidence of a number of witnesses that the patio was not a common element of the shopping centre complex and that Starbucks had exclusive use of the patio. Starbucks also maintained the patio, including the area leading into the patio from the sidewalk, where the respondent fell.
[5] In particular, the evidence from the Starbucks shift manager was that Starbucks personnel were given a shovel and salt and instructed to salt and sand not only the patio area, "but also to clear, salt and sand a pathway a couple of feet wide, wide enough for walking, in an area that included the first steps off the patio, the area of the sidewalk where the Starbucks fence opened on to the municipal sidewalk." They were instructed to ensure the safety of the customers with a clear passageway to the Hammersmith entrance to the store that is accessed through the patio.
[6] Another Starbucks witness who bought his coffee at the location almost every morning for several years, said that the sidewalk was "like a passage or corridor", and that it was necessary to walk across it to get inside. He testified that in the mornings the Hammersmith entrance was busier than the Queen Street entrance, and that users of the sidewalk in that area were mostly Starbucks customers. His view was that anyone coming through the opening in the patio fence would expect Starbucks to make the area safe for its customers.
[7] Based on this evidence, the trial judge made a number of findings:
Starbucks expected that in the mornings, many customers would drive to Hammersmith, park, cross over the sidewalk, enter the store through the patio and exit using the same path.
By constructing the patio and fence opening as it did, for its commercial benefit, Starbucks created a pathway from its side door through the patio and out over the sidewalk, which it knew was used by many of its customers and only by its customers.
The respondent and other Starbucks customers only used the sidewalk to access Starbucks from Hammersmith and would not have been there otherwise.
The use of the sidewalk that Starbucks created was unrelated to other uses of the sidewalk in the ordinary course.
"By its actions, Starbucks effectively directed all of its customers entering and exiting its store on the Hammersmith side to use that area of the sidewalk. It effectively controlled their access route and ensured that they would walk on the pathway it had designated, including on that portion of the sidewalk."
Based on the evidence of the Starbucks customer witness that the trial judge specifically accepted, she concluded that, in the mornings, customers parking on Hammersmith to access Starbucks through the patio entrance constituted most of the users of the sidewalk in that area, and that the customers had almost exclusive use of the sidewalk in that area.
Starbucks took upon itself sufficient possession and control of the area of the sidewalk adjacent to the fence opening to allow it to ensure the safety of its customers using that area to come into and out of its store.
Conclusion of the Trial Judge
[8] Based on her factual findings, the trial judge concluded, as a matter of law, that Starbucks was an occupier, within the meaning of the Act, of the space on the sidewalk adjoining the patio entrance. I quote her finding, which fully explains her conclusion:
In summary, by building its fence and patio in the manner that it did, by making a path over the sidewalk leading directly to its side door, by monitoring the condition of the pathway, by clearing, salting and sanding it to be sure it was safe for its customers, and by directing the ingress and egress of its customers in the manner that it did, Starbucks assumed sufficient control over the sidewalk and the persons it allowed to enter its premises using the sidewalk, to come within the definition of Occupier under s. 1 of the Occupiers' Liability Act.
Issues
[9] This appeal raises two issues:
(1) Did the trial judge err in her conclusion that Starbucks was an occupier, within the meaning of the Act, of the area of the sidewalk leading to its patio, where the respondent slipped and fell?
(2) If that finding was in error, did Starbucks nevertheless owe a common law duty of care to the respondent?
Analysis
Legislative Framework
[10] Since it came into force on September 8, 1980, the Occupiers' Liability Act has governed the duty of care owed by an occupier of premises to anyone who enters those premises. The legislation was enacted following the 1972 Report of the Ontario Law Reform Commission, which recommended that the common law duty of care owed by occupiers, which mandated a standard of care that was more or less stringent depending on why the injured person was on the property (invitee, licensee or trespasser), should be replaced with one generalized statutory duty.
[11] Section 2 of the Act replaces the common law duty of care with a single statutory duty:
- Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier's liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.
[12] Section 3 of the Act prescribes the duty of care that is owed by an occupier of premises to persons entering onto the premises to see that they are reasonably safe:
- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
[13] "Occupier" is defined inclusively in s. 1 as follows:
"occupier" includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises.
[14] As the definition makes clear, there can be more than one occupier of the same premises. This includes municipal sidewalks: Bongiardina v. York (Regional Municipality), 49 O.R. (3d) 641, at para. 20.
[15] Because the municipality owns the sidewalk, it has the primary responsibility for its condition and owes a duty of care to persons who use the sidewalk. The municipality is not, however, liable for personal injuries caused by snow or ice on a sidewalk except in cases of gross negligence: Municipal Act, S.O. 2001, c. 25, s. 44(9). This gross negligence standard takes account of the fact that it takes time for the municipality to clear every sidewalk in a city following a snowfall or other inclement weather.
[16] Although occupiers of both residential and commercial properties are often subject to municipal by-laws that obligate them to clear the ice and snow on public sidewalks that surround their property, that obligation is not sufficient to make them occupiers of the sidewalk within the meaning of the Act: Bongiardina, at para. 29; Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.), at para. 5.
[17] In order to be an occupier of the sidewalk within the meaning of the Act, the occupier of the adjacent premises must have taken steps to come within clause (a) or (b) of the definition, by sharing sufficient possession or control with the municipality. That is what occurred in two often-referred to cases, Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (C.J. (Gen. Div.)) and Moody v. Toronto (City), 31 O.R. (3d) 53.
Precedent Cases: Bogoroch and Moody
[18] The facts in Bogoroch bear a number of similarities to this case. The plaintiff slipped and fell on an ice patch on the sidewalk in front of the defendant's Kitchen Table store on Spadina Road, and suffered a broken ankle. The City of Toronto had issued a permit to Kitchen Table to use a portion of the sidewalk in front of the store, constituting about 25 percent of the sidewalk, to sell and display its goods. The trial judge first found that Kitchen Table was in physical possession of the portion of the sidewalk covered by the permit. However, that was not where the plaintiff fell. He fell on the sidewalk in front of the goods on display.
[19] On the issue whether Kitchen Table was an occupier of that area, the trial judge accepted the plaintiff's submission that Kitchen Table intended to and did use the entire sidewalk, not just the portion granted by the permit, to sell and display its goods throughout the year, and that the rest of the sidewalk "became virtually an aisle of the store … from which both the general public and its customers could view and buy its goods." He found that through its policy of aggressive marketing, the defendant used the entire sidewalk to further its commercial objectives, and was therefore an occupier of the entire sidewalk in front of its store, within the meaning of what is now clause (a) of the definition.
[20] Moody also involved a slip and fall on a sidewalk. The accident occurred outside the Rogers Centre (then called the Skydome) at 10:15 p.m. when the plaintiff was leaving a Blue Jays game. The plaintiff fell on part of the road allowance for Blue Jays Way owned by the City of Toronto. The plaintiff tripped over the raised edge of a concrete slab. The plaintiff did not see the protruding concrete edge because he was walking in a large crowd at the time and had to keep his head up.
[21] The plaintiff sued both the City and the Skydome. The Skydome moved for summary judgment on the basis that it was not an occupier within the meaning of the Act. The motion judge dismissed the motion. He found that the evidence could support a finding of control by the Skydome over the patrons using the walkway, and thus could support a finding that the Skydome was an occupier of the premises within the meaning of clause (b) of the definition.
[22] The evidence showed that: i) the walkway was used almost exclusively by Skydome patrons; ii) a significant number of Skydome patrons had no alternative but to use the walkway; and iii) the number of patrons using the sidewalk before and after each game created a crush of activity that made it impossible for a patron to watch for hazards on the walkway.
[23] The motion judge in Moody also addressed the concern that the result in the case could represent an extension of liability beyond the old common law of occupiers' liability and the policy that had informed it. He referenced two cases decided before the enactment of the Occupiers' Liability Act, where the courts imposed a duty of care on property owners who invited a person to use the sidewalk in front of their properties and the person suffered injury as a result: Driscoll v. Breslin et al., [1954] O.R. 913 (C.A.), aff'd, [1956] S.C.R. 64 and Snitzer v. Becker Milks Co. Ltd. et al., 15 O.R. (2d) 345. The motion judge did not cite these cases to suggest that the common law of occupiers' liability continues to apply. He cited them simply to demonstrate that imposing liability in a case like the one before him would not represent a novel departure or be contrary to public policy.
Did the Trial Judge Err in Concluding that Starbucks Was an Occupier?
[24] The trial judge found that Starbucks had the requisite responsibility and exerted the requisite amount of control over the sidewalk entrance to its patio and over its customers who used that area to access its store to be an occupier within the meaning of the Act.
[25] The portion of the municipal sidewalk at issue is displayed in trial exhibit 7. That exhibit shows an area of the sidewalk extending from the opening of the Starbucks patio to the sidewalk curb. While the trial judge held that Starbucks was an occupier of the entire area shown in exhibit 7, in my view, the trial judge's conclusion and jury's verdict can be upheld on a narrower basis.
[26] It was open to the trial judge to conclude that Starbucks was an occupier, within the meaning of the Act, of the portion of the municipal sidewalk at the threshold of its patio entrance. In light of the available evidence, the jury must have found that that was where the respondent fell.
[27] The jury found that the respondent did not fall on the patio, but on the sidewalk occupied by Starbucks. The only evidence to support the latter finding was the respondent's. The respondent's evidence was that she either fell within or immediately outside the Starbucks patio. Two eye-witnesses, a married couple, testified that they saw the respondent fall off the sidewalk curb or even on the roadway. One of those eye-witnesses marked, on trial exhibit 4, where she believed the respondent fell. The spot she identified is outside the portion of the sidewalk that the trial judge determined was occupied by Starbucks as shown in exhibit 7.
[28] Given that the jury found that the respondent fell within the portion of the sidewalk occupied by Starbucks, it must have rejected the married couple's eye-witness account and accepted the respondent's evidence that, if she did not fall within the patio, she fell immediately outside it.
[29] It is the appellant's submission, however, that it should be not be held liable as an occupier for accidents that occurred anywhere beyond the strict limits of its patio. It makes this argument on two grounds. First, the appellant argues that the trial judge's finding undermines the principle from Bongiardina that sanding and salting a municipal sidewalk will not make an adjacent landowner or tenant civilly liable to a person who slips and falls on that sidewalk.
[30] I disagree. In Bongiardina, the court framed the issue in terms of whether there was a common law duty on a property owner, in that case a residential homeowner, to clear sidewalks adjacent to the property. The court found no such duty. The court explained that clearing snow and ice from sidewalks and fixing potholes is the legal responsibility of the municipality, not the homeowner, subject to two exceptions: 1) if the homeowner is deemed to be an occupier of the sidewalk under the Act by assuming control of it, such as occurred in Bogoroch and Moody; or 2) if the homeowner allows something from his or her property, such as water, to flow off it and onto the sidewalk causing injury to persons.
[31] Bongiardina, therefore, simply reiterates that a property owner or tenant will not be deemed by the Act to be an occupier of an adjacent 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. This principle has been stated in a number of cases, both before and after Bongiardina: Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.); Bondy v. London (City), [2013] O.J. No. 1281 (S.C.), aff'd 2014 ONCA 291; Mark v. Bhangari, 2010 ONSC 4011; Levy v. Brampton (City), (2005), 12 M.P.L.R. (4th) 18 (S.C.); Graham v. 7-Eleven Canada Inc., [2003] O.J. No. 544 (S.C.); Peterson v. Windsor (City), (2006), 27 M.P.L.R. (4th) 129 (S.C.); Coulson v. Hamilton (City), (2008), 53 M.P.L.R. (4th) 251 (S.C.); Baker v. Perth East (Township), (2009), 58 M.P.L.R. (4th) 51 (S.C.); Gribowski v. Singh, 2013 ONSC 744, 9 M.P.L.R. (5th) 286; Campana v. Mississauga (City), 2016 ONSC 3421, 55 M.P.L.R. (5th) 326.
[32] The trial judge's finding that Starbucks was an occupier of the sidewalk was not based simply on its efforts to clear snow and ice from the sidewalk at the entrance to its patio. Her ruling rested expressly on the combined effect of her factual findings, set out in para. 7, and her application of the Act and the case law to those findings. Her ruling, therefore, is in no way inconsistent with Bongiardina.
[33] The appellant next argues that Starbucks did no more than any storefront owner or tenant who has customers that enter the store from the sidewalk. The appellant raises the spectre that this ruling therefore improperly shifts the responsibility for accidents resulting from snow and ice on sidewalk entrances back from the municipality to storefront owners and occupiers.
[34] I would reject this submission on three bases. First, to the extent that the appellant is challenging findings of fact made by the trial judge, I see no basis to interfere. The appellant has identified no palpable and overriding error in the trial judge's assessment of the evidence.
[35] Second, the analysis by the trial judge shows that the determination of occupier status requires a case-by-case factual analysis and an application of those facts to the definition of occupier in the Act. There is no blanket rule.
[36] Having said that, the factors established by the case law will tend to have the effect of making some storeowners rather than homeowners liable as occupiers of portions of sidewalks immediately adjacent to their store. The volume of customers that use the sidewalk immediately adjacent to the entrance to enter and exit a particular store, to the virtual exclusion of others, has been a factor in a number of cases, including Bogoroch and Moody, and applies very specifically on the facts of this case.
[37] On the other hand, where circumstances dictate, storeowners will not be found to be occupiers of the sidewalks at the thresholds of their store entrances: e.g. Kreska v. Toronto (City), (2000), 13 M.P.L.R. (3d) 53 (S.C.); Graham v. 7 Eleven Canada Inc., [2003] O.J. No. 544 (S.C.); Baker v. Perth East (Township), (2009), 58 M.P.L.R. (4th) 51 (S.C.). For example, in Graham v. 7 Eleven, the trial judge focused on the factors from the case law, noting that there was no evidence that the sidewalk in front of the 7-Eleven was used almost exclusively by patrons of the convenience store or that patrons' use made it more difficult to see hazards on the sidewalk.
[38] The third reason I would reject the appellant's submission is that, to the extent that storefront owners and occupiers have been found to be, in effect, joint occupiers with the municipality of portions of the sidewalk immediately adjacent to their stores that their customers use, such findings are consistent with the purpose and public policy objectives of the Act. That purpose and policy is to impose liability on those who, by their conduct, assume control over and responsibility for a portion of the immediately adjacent sidewalk and the safety of those who use it. That conduct must, as in this case, amount to much more than merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.
[39] In my view, therefore, while exhibit 7 was drawn too broadly, it was open to the trial judge to conclude that Starbucks was an occupier within the meaning of the Act of the portion of the municipal sidewalk at the threshold of its patio entrance where the jury must have found that the respondent actually fell.
Does Starbucks Owe a Common Law Duty of Care to the Respondent?
[40] The respondent argued, in the alternative, that if the appellant were not found to be an occupier within the meaning of the Act, it should nevertheless be found negligent based on a breach of a common law duty of care that continues to exist together with the statutory duty.
[41] The section of the Act that addresses this issue directly is s. 2, which I quote again here for ease of reference:
- Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier's liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.
[42] As stated above, the section states that it replaces the previous common law rules that determined the nature of the duty of care owed by an occupier of premises to different sorts of visitors to the premises with one single duty of care. That duty is to make the premises reasonably safe, and it is owed by an occupier of the premises to anyone who enters the premises. The work of the definition of occupier is to determine the extent of the premises for which the occupier has the statutory duty of care.
[43] However, where a person is found not to be an occupier of the sidewalk adjacent to the person's premises, were there other common law duties of care owed by an adjacent property owner to persons on the adjacent sidewalk that existed before the enactment of the Act, and if so, have those duties of care been abolished?
[44] It appears to me that the question has already been answered, at least in part, by this court in Bongiardina. There the court identified three possible duties that an owner of premises adjacent to a municipal sidewalk could owe to someone injured on that sidewalk. The first was a common law duty of care. The court said that there is no common law duty on an owner or occupier of premises to keep the adjacent sidewalk clear of ice and snow. Second was the statutory duty: there will be a statutory duty of care if the adjacent property owner or tenant is an occupier of the sidewalk within the meaning of the Act. The third duty the court identified was the common law duty that could be owed by an owner or tenant of adjacent premises to ensure that conditions or activities on his or her property do not flow off it and cause injury to persons, i.e. a cause of action in nuisance or negligence in failing to prevent a nuisance.
[45] 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. As Lewis N. Klar explains in Tort Law, 5th ed. (Toronto: Carswell, 2012) at p. 627, fn. 118: "even though the defendant might not have been an occupier of the property in question, the defendant still owes a common law duty of care with respect to unreasonable risks created with regard to that property" citing, as an example, Lytle v. Toronto (City), (2004), 2 M.P.L.R. (4th) 58 (S.C.), aff'd (2006) 28 M.P.L.R. (4th) 162 (C.A.).
[46] What is clear, however, based on s. 2 of the Act, is that there is no general common law duty of care, based on proximity principles, owed by an adjacent property owner or tenant in respect of sidewalks that abut that person's property. The only duty is the statutory duty that is owed by a person who meets the definition of occupier under the Act. As Klar writes in Tort Law at p. 627: "[i]t seems irrefutable that the legislation was intended to be exclusive and comprehensive, in so far as the liability of occupiers is concerned."
[47] As a result, no common law duty of care arises in this case.
Disposition
[48] I would dismiss the appeal with costs fixed at $10,000 inclusive of disbursements and HST.
Released: May 2, 2017
"K. Feldman J.A."
"I agree. John Laskin J.A."
"I agree. C.W. Hourigan J.A."
