Bongiardina et al. v. Corporation of the City of Vaughan; Managiapane et al., Third Parties [Indexed as: Bongiardina v. York (Regional Municipality)]

49 O.R. (3d) 641

[2000] O.J. No. 2751

Docket No. C33248

Court of Appeal for Ontario

Borins, MacPherson and Sharpe JJ.A.

July 26, 2000

Municipal law -- Actions against municipality -- Municipal by-law requiring residents to clear snow from municipally owned sidewalks abutting their residences cannot be relied on by municipality to shift civil liability to resident when municipality sued by pedestrian who falls and is injured on sidewalk -- Property owner having no common law duty to clear snow and ice from public sidewalks -- Municipal by-law not imposing such duty.

The plaintiff brought an action against the defendant municipality after falling on a snow-covered sidewalk. The defendant brought a third party claim against the owners and occupants of the residential property abutting the area of the sidewalk where the plaintiff fell. The principal basis for the third party claim was a municipal by-law requiring owners and occupants to clear the sidewalks abutting their properties of snow. The third parties brought a motion for summary judgment dismissing the third party claim. The motion was granted. The defendant appealed.

Held, the appeal should be dismissed.

The motion for summary judgment was not premature. The third parties had examined the defendant's pleadings and concluded that, as a matter of law, they disclosed no cause of action against them. They were entitled to have this matter resolved at the outset of the proceedings.

There is no common law duty on the owner of property to clear snow and ice from public sidewalks adjacent to the property. The snow and ice accumulating on public sidewalks are the legal responsibility of the municipality. There are two exceptions to this general principle. First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. The second exception to the general principle that a property owner is responsible only for his or her property is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. Neither exception applied in this case.

The defendant's by-law did not alter the common law picture. Where there is no duty of care at common law, breach of non- industrial penal legislation should not affect civil liability unless the statute provides for it. Neither the Municipal Act, R.S.O. 1990, c. M.45 nor the by-law purported to impose civil liability on the owner of property adjacent to public sidewalks. Indeed, s. 284 of the Municipal Act imposes a duty on municipalities to keep highways in a reasonable state of repair. It is doubtful that a municipality could circumvent this duty by trying to impose a replacement duty on its own residents.

APPEAL by the defendant from a summary judgment of Beaulieu J. (1999), 1999 15104 (ON SC), 46 O.R. (3d) 345, 8 M.P.L.R. (3d) 68 (S.C.J.) dismissing a third party claim.

Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, 45 N.R. 425, [1983] 3 W.W.R. 97, 23 C.C.L.T. 121 (sub nom. Saskatchewan Wheat Pool v. R.), apld Other cases referred to Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.); Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.); Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 101 L.J.P.C. 119, 48 T.L.R. 494 (H.L.); Gandara v. Toronto (City) (1994), 22 M.P.L.R. (2d) 220 (Ont. Gen. Div.); Lutz v. Toronto (City) (1975), 1975 585 (ON SC), 8 O.R. (2d) 16, 56 D.L.R. (3d) 658 (H.C.J.); Moody v. Toronto (City) (1996), 1996 8229 (ON SC), 31 O.R. (3d) 53 (Gen. Div.); Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.); Taylor v. Robinson, 1933 138 (ON CA), [1933] O.R. 535, [1933] 3 D.L.R. 73 (C.A.) Statutes referred to Municipal Act, R.S.O. 1990, c. M.45 (am. 1996, c. 32, s. 54(1)), s. 284(1), (4) Occupiers' Liability Act, R.S.O. 1990, c. O.2 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20, 29 Authorities referred to Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), p. 319

Alan L. Rachlin, for appellant. Karen T. Murphy, for respondents.

The judgment of the court was delivered by

MACPHERSON J.A.: --

Introduction

[1] On a typical winter morning almost anywhere in Canada the silence of the pre-dawn hours is often broken by the sound of municipal snowploughs. Canadian taxpayers expect that their municipal governments will move quickly and efficiently to keep the streets and sidewalks clear and safe.

[2] In many Canadian towns and cities, the municipal governments enlist their own residents in the snow-clearing enterprise. Municipalities do this by enacting by-laws requiring residents to clear the municipally owned sidewalks abutting their properties of snow and ice within a prescribed period of time, failing which they are liable to pay a fine.

[3] Regularly, accidents take place. A person walking on the sidewalk falls and is injured. Sometimes the injured person will sue the municipality. Occasionally, the municipality, relying on its by-law, will look to the resident of the abutting property to assume liability for the accident.

[4] This appeal presents such a scenario. The appeal invites a consideration of the relationship between a municipality and its own residents in the context of snow-clearing operations. Specifically, the appeal presents the issue whether a municipal by-law requiring residents to clear snow from the municipally owned sidewalks abutting their residences can be relied on by the municipality to shift civil liability to the resident when it is sued by a pedestrian who falls and is injured on the sidewalk.

A. Facts

[5] On January 23, 1997, Concetta Bongiardina fell on the sidewalk in front of 168 Chancellor Drive in the City of Vaughan. She was injured. She brought an action against the City of Vaughan. She alleged that the accumulation of snow and ice on the sidewalk constituted a hazard and a nuisance. She framed her statement of claim in the common law of negligence and in an alleged breach of the Occupiers' Liability Act, R.S.O. 1990, c. O.2.

[6] The City of Vaughan defended the action. It also brought a third party claim against the owners and occupants of the residential property at 168 Chancellor Drive, Carlo and Carmela Mangiapane. The principal basis for the third party claim was the city's own by-law which required owners and occupants to clear the sidewalks abutting their properties of snow. By-law 300-93 provided:

2. The

(i) Owners of . . . occupied . . . residential buildings . . . and

(ii) Occupants of dwellings

shall clear away snow and ice from the sidewalks on the highways in front of, alongside or at the rear of . . . the land occupied by such buildings or dwellings within twenty- four hours after a fall of snow, rain or hail has ceased; and if the condition of such sidewalk remains slippery after the removal of the snow and ice, such owner or occupant shall cover the slippery area with sand or salt forthwith.

The by-law also provided a penalty for breach of this statutory duty:

5. Any person convicted of a breach of any provision of this By-law shall forfeit and pay a penalty at the discretion of the convicting justice.

[7] The Mangiapanes defended the third party claim. In their statement of defence they said:

5. The Third Parties state that any breach of the City of Vaughan By-law number 300-93, which is not admitted but denied, in no way imposes civil liability upon the Third Parties as occupants of a dwelling. Further, the Third Parties plead that the Corporation of the City of Vaughan cannot be relieved from any liability imposed on it by the Municipal Act, R.S.O. 1990, c. M. 45.

The reference in this paragraph to the Municipal Act, R.S.O. 1990, c. M.45, as amended by S.O. 1996, c. 32, s. 54(1), is to s. 284(1) and (4) which imposes a duty on municipalities to remove snow and ice from sidewalks and also imposes civil liability on the municipality for breach of the duty. Relying on this legal position, the Mangiapanes brought a motion for summary judgment in which they sought an order dismissing the third party claim made against them by the City of Vaughan.

[8] Beaulieu J. granted the motion for summary judgment [reported 1999 15104 (ON SC), 46 O.R. (3d) 345, 8 M.P.L.R. (3d) 68]. He found that there were no facts in dispute and that "the legal issue in this motion is a question of law as to whether the third parties owed a duty of care to the plaintiffs and the defendant". The essence of his reasoning on this legal issue is found in this passage in his reasons for judgment [at p. 348]:

. . . the Ontario courts have made it quite clear that owners and occupiers of a dwelling adjacent to a municipal sidewalk who are subject to a city by-law, such as By-law No. 300-93, do not owe a duty of care to users of the sidewalk since the remedies for falls on public sidewalks are found in the Municipal Act . . . Furthermore, it has been decided by the Ontario courts that the Occupier's Liability Act . . . does not apply. A by-law requiring owners and occupiers of dwellings to remove snow and ice from public sidewalks adjacent to their properties cannot relieve the municipality from liability imposed by the Municipal Act.

(Citations omitted)

[9] The City of Vaughan appeals from Beaulieu J.'s decision.

B. Issues

[10] The appellant raises three issues on the appeal:

1. Did the motions judge err by not dismissing the motion for summary judgment as premature?

2. Did the motions judge err in finding that there was no genuine issue for trial because the respondents owed no duty of care to the plaintiffs or to the appellant?

3. Did the motions judge err in dismissing the third party claim without adjudicating upon whether there was a genuine issue for trial with respect to the allegation that the respondents had caused a nuisance upon the sidewalk?

C. Analysis

1. Motion for summary judgment -- premature?

[11] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, allows the parties to an action to bring a motion for summary judgment. Rule 20.01 grants this procedure to plaintiffs and defendants. Rule 20.09 extends the procedure to third party claims. There are no time limits in Rule 20; a party appears to be able to bring its motion for summary judgment at any stage of the proceedings.

[12] Rule 29.02(1) and (1.1) requires that a third party claim be issued within ten days after the defendant delivers a statement of defence, or within ten days after the plaintiff delivers a reply to the statement of defence.

[13] The appellant submits that, reading Rules 20 and 29 together, a time limitation should be read into Rule 20 in third party claim situations. The appellant states its position succinctly in its factum:

19. It is submitted that Rule 20, as literally worded, should only apply to motions in a main action, as it assumes that the parties to a summary judgment motion have access to the facts underlying the alleged genuine issue for trial. In contrast, in a third party proceeding the parties may not have access to the facts forming the basis of the allegations in the statement of claim, if a summary judgment motion is brought prior to the discovery taking place in the main action.

[14] I do not agree with the appellant's submission on this issue. There is nothing in Rule 20 to suggest that third party claims are to be considered on a different footing from the main action. Indeed, the structure and contents of the rule suggest that the rule is to be available to all parties (plaintiffs, defendants and third parties) and all claims (main actions, counterclaims, cross-claims and third party claims).

[15] There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be resolved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.

[16] However, that is not this case. The third parties in this case, the Mangiapanes, have examined the City of Vaughan's pleadings and concluded that, as a matter of law, they disclose no cause of action against them. In my view, they are entitled to have this matter resolved at the outset of the proceedings. If they are right, they deserve to be let out of the action now, before they devote energies and money to defending it.

2. The duty of care issue

[17] The appellant does not contend that the Mangiapanes' alleged breach of the snow-clearing by-law, in and of itself, gives rise to tortious liability. Such an argument is foreclosed by the decision of the Supreme Court of Canada in Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, where Dickson J. stated, at p. 227:

The notion of a nominate tort of statutory breach giving a right to recovery merely on proof of breach and damages should be rejected, as should the view that unexcused breach constitutes negligence per se giving rise to absolute liability.

[18] The appellant's position is that breach of the by-law may result in civil liability on the basis that non-compliance with the by-law may serve as evidence of the breach of a common law duty of care by the adjacent property owner. As a general proposition, there is merit in this submission. In Saskatchewan Wheat Pool, having rejected an independent tort of breach of statute, the court proceeded to link breach of statute and the common law of negligence. Dickson J. said, at p. 225:

Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach.

[19] 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 Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 101 L.J.P.C. 119 (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.

[20] There are two exceptions to this general principle. First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. Thus, in Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.), the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier of the sidewalk and subject to the duties imposed by the Occupiers' Liability Act. Similarly, in Moody v. Toronto (City) (1996), 1996 8229 (ON SC), 31 O.R. (3d) 53 (Gen. Div.), the court held, on a motion for summary judgment, that the owners of the Skydome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the "special circumstances" relating to those walkways, including the almost exclusive use of the walkway by Skydome patrons and the lack of alternatives to the walkways.

[21] The second exception to the general principle that a property owner is responsible only for his or her property is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. An example of a case in this category would be Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.), where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fell on snow and ice on a public sidewalk near the bank. Referring to the bank's liability, the court said, at p. 2:

. . . the trial judge found that water flowed from the respondent's property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent, in our opinion, is liable.

See also Taylor v. Robinson, 1933 138 (ON CA), [1933] O.R. 535, [1933] 3 D.L.R. 73 (C.A.).

[22] Neither of these exceptions applies in the present case.

[23] The appellant does not claim that the third parties took any steps, as in Bogoroch or Moody, to become occupiers of the sidewalk in front of their home.

[24] The appellant does claim against the third parties in negligence and in nuisance. However, the pleadings make no allegation, as in Brazzoni and Taylor, that the third parties did or failed to do anything on their property which created a hazard on the adjacent public sidewalk. The only relevant pleading in the third party claim is para. 5:

5. This defendant pleads that the third parties knew or ought to have known that this defendant was relying upon them to keep the sidewalk adjacent to their premises clear in accordance with the said by-law, and that they accordingly had a duty to take appropriate care under all the circumstances.

It is clear from this paragraph that the complaint of the City of Vaughan is that the Mangiapanes did not clear the sidewalk in front of their home, not that they did or failed to do something on their property that created a hazardous condition on the sidewalk.

[25] Since neither of the exceptions apply, it follows that there is no evidence on which to found a common law duty on the Mangiapanes to keep the adjacent public sidewalk clear of ice and snow.

[26] The remaining question is whether the City of Vaughan's by-law alters the common law picture. In my view, it does not. In Saskatchewan Wheat Pool, Dickson J. stated, at p. 223:

Glanville Williams is of the opinion, with which I am in agreement, that where there is no duty of care at common law, breach of non-industrial penal legislation should not affect civil liability unless the statute provides for it.

[27] Neither the Municipal Act nor the City of Vaughan by-law purports to impose civil liability on the owner of property adjacent to public sidewalks. Indeed, s. 284 of the Municipal Act imposes a duty on municipalities to keep highways (which include sidewalks) in a reasonable state of repair. It is doubtful that a municipality could circumvent this duty by trying to impose a replacement duty on its own residents: see Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.); Lutz v. Toronto (City) (1975), 1975 585 (ON SC), 8 O.R. (2d) 16, 56 D.L.R. (3d) 658 (H.C.J.), and Gandara v. Toronto (City) (1994), 22 M.P.L.R. (2d) 220 (Ont. Gen. Div.).

[28] Finally, I note that there does not seem to be any good reason in policy to extend liability to the owners of adjacent properties for accidents on public sidewalks. In an excellent discussion of the relationship between tort law and snow- clearing by-laws in his leading text, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), A.M. Linden states, at p. 319:

. . . the courts probably do not sympathize with the policy of these ordinances. . . As long as the city is enlisting property owners as deputy street commissioners to assist in its primary responsibility, the court will not object, but when the municipality attempts to relieve itself completely of its obligation, the court refrains from encouraging this. There is also the feeling of unfairness toward the abutter, who is not only made to tend the public sidewalk on behalf of the municipality, but to bear a civil obligation to anyone injured by the omission to do so.

[29] For these reasons, I do not think that the motions judge erred when he concluded that the third parties did not owe a duty of care to pedestrians using the sidewalk adjacent to their home. Nor did he err when he decided that the City of Vaughan's by-law did not alter the common law duty. It follows that the motions judge was correct in granting summary judgment to the respondents on the ground that the appellant's third party claim failed to disclose a genuine issue for trial.

3. The nuisance issue

[30] The appellant asserts that the motions judge erred in dismissing the third party claim without adjudicating upon whether there was a genuine issue for trial concerning whether the third parties had caused a nuisance on the sidewalk.

[31] I disagree. As discussed in the previous section of these reasons, in its pleadings the appellant makes no claim that the third parties did or failed to do anything on their property that created or contributed to a hazard on the adjacent sidewalk. Accordingly, the line of nuisance cases represented by Brazzoni v. Timmins (City), supra, and Taylor v. Robinson, supra, is not in play in this litigation.

Disposition

[32] I would dismiss the appeal with costs.

Appeal dismissed.