COURT OF APPEAL FOR ONTARIO

DATE: 20000608

DOCKET: C31411

RE: BARBARA LARSON (Plaintiff/Respondent) vs. THE
CORPORATION OF THE CITY OF THUNDER BAY
(Defendant/Appellant)

BEFORE: BORINS, MACPHERSON AND SHARPE JJ.A.

COUNSEL: Stephen Wojciechowski and Eryou Barristers
For the appellant

Michael Burgar
For the respondent

HEARD: June 2, 2000

On appeal from the judgment of McCartney J. dated January 5, 1999.

E N D O R S E M E N T

[1] In this slip and fall case the defendant municipal
corporation appeals from the reasons for judgment of McCartney
J. granting judgment to the plaintiff for $46,000 on the ground
that the defendant negligently failed to keep a pedestrian
walkway leading to and from the Canada Games Complex clear of
ice. There is no dispute that the respondent slipped on a patch
of ice on the pedestrian walkway and injured her ankle in doing
so.

[2] The City of Thunder Bay appeals on the basis that the trial
judge applied the wrong standard of care. He applied an ordinary
standard of care instead of the higher standard of care as
provided in s. 284 of the Municipal Act. The trial judge held
that the Municipal Act did not apply since the area on which the
respondent fell was neither a municipal sidewalk nor a public
highway within the meaning of the Act. He, therefore, applied
the provisions of the Occupier’s Liability Act to find liability
on the basis of the appellant’s negligence.

[3] We are of the view that the trial judge was correct in
finding that the dominant purpose or characteristic of the
pedestrian walkway leading to and from the Canada Games Complex
was to provide access and egress for those attending the Complex.
It was the responsibility of the City of Thunder Bay, in its
capacity as the owner of the Complex, to take care to see that
persons using it were reasonably safe as required by s. 3(1) of
the Occupier’s Liability Act.

[4] In our view, it would be highly artificial to impose a
different standard of care on the City of Thunder Bay in respect
to the different portions of the pedestrian walkway which
traverse the property of the Complex and the road allowance. The
standard of care must be determined by the dominant purpose or
characteristic of the pedestrian walkway which, viewed from this
perspective, was neither a public sidewalk nor a highway within
the meaning of s. 284 of the Municipal Act. The trial judge came
to the reasonable conclusion, based on the dominant purpose of
the pedestrian walkway, that the duty of care imposed by the
Occupier’s Liability Act applied.

[5] Therefore, we are satisfied that the trial judge did not err
in finding that the location of the respondent’s accident was
neither a sidewalk, nor a highway, within the meaning of s. 284
of the Municipal Act, and that it was a private walkway to which
the duty of care contained in s. 3(1) of the Occupiers Liability
Act applied. Moreover, there was evidence that fully supported
the finding of the trial judge that the appellant was in breach
of its duty of care.

[6] Therefore, the appeal is dismissed with costs.

Signed: “S. Borins J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”