COURT FILE NO.: CV-08-368350
DATE: 20150727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLE MACKAY
Plaintiff
– and –
STARBUCKS CORPORATION, CITY OF TORONTO, K.J. BEAMISH CONSTRUCTION CO., LIMITED, QUEEN HAMMERSMITH HOLDINGS INC. and DBM LANDSCAPING LIMITED
Defendant
Murray Tkatch, Barbara K. Opalinski, Simmy Chun Er Yu, for the Plaintiff
Bruno Roti, for the Defendant, Starbucks Corporation
RULING: June 8, 2015
REASONS FOR RULING
M.A. SANDERSON J.
Introduction
[1] These Reasons pertain to a request made by all counsel on June 8, 2015, for a ruling from this Court on the following matters: (1) Whether an outdoor patio adjacent to a Starbucks store was a common element of a shopping centre under a lease between Starbucks and the landlord dated October 1997 (2) Whether Starbucks was an occupier of an area of the City sidewalk adjacent to the opening in the patio fence now shown on Exhibit 7?
Background
[2] On Tuesday, June 5, 2015, I commenced a jury trial involving a slip and fall that allegedly occurred on premises occupied by the Defendant Starbucks.
[3] The Plaintiff alleged that she slipped on ice on a patio used by the Defendant Starbucks. Other witnesses gave evidence that she slipped on a city sidewalk adjacent to that patio.
[4] The Plaintiff initially sued Starbucks, the owner of the sidewalk, the City of Toronto, “the city”, the owner of the shopping centre in which the Starbucks store was located [Starbucks’ landlord], Queen Hammersmith Holdings Inc., “the landlord”, and the landscape contractor, “the landscape contractor”, allegedly retained by the landlord to remove ice and snow from the patio and sidewalk. Starbucks cross-claimed against both the landlord and the landscape contractor.
[5] Before the trial had commenced, the Plaintiff had agreed to a dismissal of its action against the city, the landlord and the landscape contractor. Starbucks had not settled its cross-claim against the landlord and the landscape contractor.
[6] At trial, counsel for the Plaintiff was submitting, not only that Starbucks was an Occupier under the Occupiers Liability Act R.S.O. 1990 c.0.2. “the Act” of what it characterized as Starbucks exclusive use outdoor patio, but also that it was an Occupier of an area of the city sidewalk that Starbucks’ customers used to enter and exit Starbucks’ store.
[7] In the Starbucks’ cross-claim against the landlord and the landscape contractor, counsel for the landlord and the landscape contractor conceded that the landlord had an obligation under the lease to remove ice and snow from all common elements of the shopping centre. However, he submitted that the landlord owed no contractual obligation to Starbucks under the lease to maintain Starbucks’ outdoor patio, to remove ice and snow from Starbucks’ exclusive use patio. The patio was not a common element. Rather, it was exclusively used by Starbucks and its customers. He submitted that the landlord owed no obligation to Starbucks to remove ice and snow from the city sidewalk.
[8] As mentioned earlier, this was a jury trial. All counsel agreed that the liability of Starbucks arguably would depend on where the Plaintiff slipped [i.e., on the patio, the sidewalk or elsewhere]. The parties agreed that the location of the slip was clearly a question for the jury.
[9] However, counsel could not agree on the questions for the jury.
[10] Given the issues, the parties that had already been let out of the main action [the city, the landlord, the landscape contractor], the fact that Starbucks had made admissions in the main action with which the defendants in the cross claim did not agree, the form of the jury questions continued to be a matter of some debate.
[11] When, on the first day of the trial, I asked counsel for the jury questions, I was given three very different versions.
[12] Counsel could not agree on (a) whether the patio was a common element or common area of the shopping centre that the landlord had a contractual obligation under the lease to maintain for ice and snow, (b) whether Starbucks was an Occupier of the patio, or (c) whether Starbucks was an Occupier of the city sidewalk.
[13] Throughout the duration of the calling of the evidence, counsel were unable to agree on the form of the jury questions. On the weekend of June 6-7, 2015 they promised to work together to finalize them.
[14] By Monday, June 8, 2015 the evidence was complete. On June 8, 2015 all counsel were scheduled to deliver their closing addresses to the jury.
[15] I had scheduled a meeting with counsel in the absence of the jury to take place early in the morning of June 8, 2015 to review the jury questions and to make whatever orders were necessary. If they were unable to agree, one option would have been for counsel to ask me to strike the jury in the main action or the cross-claim or both.
[16] At the meeting on the morning of June 8, 2015, counsel could not agree on the form of the jury questions without a determination as to whether (1) the patio was a common element under the lease, (2) Starbucks and/or Queen Hammersmith Holdings were Occupiers of the patio, and (3) Starbucks was an Occupier of the sidewalk where it joined the patio [at the opening in the Starbucks fence].
[17] After much discussion, they did agree that if I were prepared to resolve those issues, they would then be able to agree on the form of the questions.
[18] By that point in the trial, I had already heard all of the evidence, reviewed the terms of the lease and the relevant case law. I agreed to grant their request.
[19] In order not to keep the jury waiting any longer than necessary, I heard argument then rendered an oral decision. I held that the patio was not a common element, that only Starbucks, an Occupier of the patio, was responsible for the maintenance of the patio, and that Starbucks was an Occupier of the City sidewalk in the area shown on Exhibit 7.
[20] Counsel for the landlord and its landscape contractor then moved for a dismissal of Starbucks’ cross claim against them on the ground that there was no basis for this Court to hold that either owed any duty to Starbucks to remove ice and snow from the patio or the sidewalk area in question. I granted that request. The cross claim was dismissed.
[21] Remaining counsel then agreed on the questions for the jury.
[22] The trial of the main action then proceeded. The lawyers for the Plaintiff and Starbucks made their closing addresses to the jury.
[23] I charged the jury, and then, late in the afternoon of June 9, 2015, the jury found that the plaintiff had slipped on ice on the sidewalk area shown on Exhibit 7, that Starbucks had breached its duty as an Occupier, but that the Plaintiff had been contributorily negligent, 30% responsible for her own damages.
[24] The parties had previously agreed on the quantum of the damages.
[25] The written reasons for my oral rulings on June 8, 2015 follow below.
The Evidence Relevant to All Issues
[26] The shopping centre is located south of Queen Street in the Beach area of Toronto. It consists of one large building that includes a number of commercial tenants/stores, all with entrances facing north onto Queen Street.
[27] The lease between Starbucks and the landlord contains a diagram that shows the layout of the shopping centre.
[28] Starbucks is the most westerly store in the shopping centre. Like the other commercial tenants, Starbucks has an entrance facing Queen Street. Unlike the other stores, Starbucks also has a side door on the westerly side of its store.
[29] The door on the westerly side of Starbucks’ store opens onto a strip of land about twenty feet wide that extends between the west wall of the shopping centre building and the easterly edge of the Hammersmith sidewalk.
[30] Hammersmith Avenue is a quiet residential street immediately to the west of the shopping centre building, running generally in a north/ south direction into/from Queen Street.
[31] Use of Starbucks’ westerly door is convenient for customers entering its store from Hammersmith.
[32] The municipal sidewalk on the east side of Hammersmith runs along the easterly edge of Hammersmith [between Hammersmith and the strip of land owned by the landlord to the west of the shopping centre building].
[33] There was evidence that it is easier for Starbucks customers to park on Hammersmith than on Queen.
Evidence Relevant to the Ruling That the Patio is Not a Common Element
[34] There was uncontradicted evidence that at the time it signed the lease with Starbucks in 1997, the landlord agreed to allow Starbucks to build an outdoor patio on the already mentioned strip of land located between the westerly wall of the Starbucks store/ shopping centre building, and the sidewalk running along the easterly side of Hammersmith. The landlord also agreed that Starbucks could fence its outdoor patio.
[35] Had Starbucks built its patio and fence as shown on the lease, the fence would have run in a westerly direction from the westerly wall of the shopping centre building to the easterly edge of the Hammersmith sidewalk, along the sidewalk and then in an easterly direction back to the westerly wall of the shopping centre building. It would have totally enclosed the patio.
[36] Had the patio and fence been built as proposed, the only access that Starbucks customers could have had to the patio, would have been from inside the Starbucks store. It would have been clear that only Starbucks customers were intended to have access the patio, and then, only by entering the Starbucks store through the Queen Street entrance, and by using its side door to enter the patio.
[37] However, when Starbucks built its patio and fence, it deviated from the proposed plan. It incorporated a 3-4’ wide gap in its fence at a point where its patio met the Hammersmith sidewalk, seamlessly joining the two.
[38] The fence and patio, as built, is shown on Exhibit 1, a photograph showing an unidentified woman leaving Starbucks through the opening in the Starbucks fence.
[39] Counsel for the Plaintiff submitted that by building its patio and its fence in the manner that it did, Starbucks effectively directed its customers entering its store through its westerly side door to cross the Hammersmith sidewalk at the point where its fence opened and its patio met the sidewalk.
[40] Counsel for Starbucks called the evidence of Mr. Dominique Boivin who was a construction project manager at the time Starbucks entered into the lease and built and fenced the patio.
[41] He said that by leaving a 3-4’ gap in its fence, Starbucks made it possible for its customers to enter its store from Hammersmith using its side door.
[42] Although Boivin suggested that the patio was a common area, in giving his evidence, he was very vague about important details. In chief, he said he was unaware as to whether the other shopping centre tenants had contributed to the cost of the fence. He was unable to point to any provision in the lease specifying that the patio was a common area.
[43] He did agree that a provision earlier included in the lease that had stipulated that use of the Starbucks patio would be subject to the rules and regulations of the landlord with respect to noise, security and maintenance, had been crossed out of the lease before it was signed.
[44] He conceded that Starbucks was the only store in the shopping centre with direct access to the patio and that it received commercial benefits from it.
[45] Boivin agreed that from an operational perspective, the Starbucks District Manager would know more about day-to-day operations than he would.
[46] The Starbucks District Manager, Joanna Manabet, gave evidence that in her view, the patio was for the exclusive use of Starbucks customers. She also said that Starbucks employees had a responsibility to maintain it. During the winter, Starbucks provided its employees with shovels and salt. She said she understood that the landlord’s landscape contractor also removed ice and snow from the patio area.
[47] Tina Shields, the Starbucks Shift Manager who was on duty at the time that the Plaintiff fell, said during cross-examination that Starbucks had exclusive use of the patio. She said that she worked primarily on early morning shifts, starting at 5:30 AM. Starbucks gave its employees shovels and salt and instructed them to clear a pathway a couple of feet wide, wide enough for walking on the patio and on the sidewalk on the first steps off the patio, [where the Starbucks fence opened on to the sidewalk]. She said “our responsibility is to be sure our customers are safe.”
[48] Deborah Twining, the property manager for the landlord at the time of the Plaintiff’s fall, gave evidence that Starbucks and its customers were the only users of the patio.
[49] She said that the landlord [and other commercial tenants] did not treat the patio as a common element. Starbucks was expected to maintain the patio on its own. The landlord never charged Starbucks for maintenance of the patio because it was Starbuck’s sole responsibility. Nor did it call upon the other commercial tenants to contribute proportionally under their leases to cover maintenance expenses in relation to the Starbucks patio [as they would have been required to do if the patio had been a common element]. She said the other commercial tenants were not charged for two reasons: the patio was not a common element and the landlord provided no maintenance for the Starbucks patio.
[50] Starbucks did not call any evidence to dispute Twining’s to the effect that the landlord did not bill Starbucks for any patio maintenance fees, or that the other tenants were not required to pay their proportionate share of any patio maintenance costs. I have accepted that evidence.
[51] I have already noted that the provision in the printed lease that Starbucks must follow the landlord’s rules re noise security and maintenance was crossed out before the lease was signed.
[52] I accept the evidence of Manabet that Starbucks had exclusive use of the patio.
[53] I have not overlooked that the landscape contractor retained by the landlord to maintain the common areas did give evidence that he understood that he was to salt and sand the patio. However, I have concluded that even if he may have undertaken some salting and sanding of the patio, the landlord had no contractual or other legal obligation under the lease or otherwise to provide that service to Starbucks.
[54] For all of those reasons, I have held that Starbucks was the sole Occupier of the patio.
The Ruling that Starbucks Was an Occupier of the Sidewalk at the Opening of the Starbucks Fence
[55] When all counsel asked this Court to decide whether Starbucks was an Occupier under the Act or at common law of any portion of the Hammersmith city sidewalk, they also asked me to go further, if my answer was yes, and to precisely delineate the area of the sidewalk where I had held Starbucks to be an Occupier.
[56] As noted earlier, all counsel agreed that it would be necessary for the jury to decide precisely where the Plaintiff slipped [i.e. on the Starbucks patio or on the sidewalk and if on the sidewalk where on the sidewalk]. If she slipped in a location where I had held Starbucks to be an Occupier, the jury would be asked to decide whether Starbucks had met its obligations to the Plaintiff to make the premises reasonably safe as required under the Act.
[57] Even though a landlord may have a duty under a by law to salt and sand a sidewalk adjacent to his property, counsel for Starbucks submitted that where a plaintiff falls on a municipal sidewalk and injures herself, her primary redress must be from the municipality, not from the owner of land adjacent to the sidewalk. In the absence of special circumstances, the landowner will not be held to be civilly liable.
[58] Counsel for Starbucks submitted it was not an Occupier of the city sidewalk in the area at the time that the plaintiff slipped.
[59] Counsel for the Plaintiff submitted that Starbucks was an Occupier in the area of the sidewalk where it met the opening in the Starbucks fence at the time that the Plaintiff slipped.
[60] Although the Plaintiff gave evidence that she slipped on the Starbucks patio, counsel for Starbucks had called Brian and Julia McIneray to say that the Plaintiff had slipped on the sidewalk or curb near Hammersmith.
[61] Counsel for Starbucks cited Bongiardina v York (Regional Municipality), a 2000 decision of the Ontario Court of Appeal. In that case, MacPherson JA for the Court made it clear that as a general rule, where a landowner is sued by a pedestrian who has fallen and has been injured on an icy sidewalk adjacent to that landowner’s property, an obligation to salt and sand a sidewalk adjacent to his property imposed on that landowner by a municipal by law, will not, in itself, be sufficient to create civil liability on that landowner.
[62] Counsel for Starbucks submitted that this Court should treat Starbucks in the same way as the Court of Appeal treated the residential property owner in Bongiardina.
[63] Counsel for Starbucks submitted that there are only two exceptions to that general rule, (1) where an owner has assumed control of that property and/or (2) where activities on that property have flowed off of that property and caused injuries to persons nearby. He submitted that neither applies here.
[64] Counsel for the Plaintiff submitted that Starbucks should be held to be an Occupier of the sidewalk, because in all of the circumstances here, Starbucks falls within the definition of “Occupier” under s 1 of the Act. In interpreting s 1, this Court should not be limited to the two exceptions set out above [assumption of control of property of where activities on property flow off the property and cause injury]. Rather, this Court should have regard to the definition of Occupier in s1, and to the policies that animated the legislature to define “Occupier” in the manner that it did.
[65] The Legislature has provided that an Occupier includes not only a person who is in physical possession of premises (under s 1(a)) but also persons who have responsibility and control over the condition of premises, and over the activities there carried on. In addition, it has included as Occupiers, entities with control over persons allowed to enter the premises (under s 1(b)).
[66] Counsel for the Plaintiff submitted, and I agree, that if physical possession of the sidewalk had been necessary for a party to be determined to be an Occupier under s 1, the definition of Occupier would have ended after 1(a).
[67] Counsel for the Plaintiff submitted the definition of “Occupier” in Ontario is broadly cast. It is wider, for instance, than in British Columbia.
[68] He submitted that in all the circumstances here, Starbucks met the Ontario definition of “Occupier” in three respects:
It sufficiently appropriated the use of the area of the sidewalk at the opening of its fence to be held an Occupier, given the manner in which it built its patio and fence, and the pattern of usage of the sidewalk directed by Starbucks;
Additionally, it took sufficient responsibility for and control over the condition of the sidewalk;
It took sufficient control over its customers, [the persons it allowed to enter its premises from the Hammersmith side], by directing them to use the sidewalk in that location in the manner that it did.
[69] Counsel for the Plaintiff submitted it would be reasonable for this Court to find Starbucks responsible for the safety of its customers, given that it knew they would be using that area of the sidewalk. Given the level of control Starbucks took over that area of the sidewalk, it was also feasible for it to keep that area safe for its customers.
[70] The Court of Appeal in Bongiardina was dealing with a particular fact situation, that of a residential owner of land located adjacent to a sidewalk but having no other relationship with or connection to the person who fell on the municipal sidewalk.
[71] In Bongiardina, the Court specifically noted that the appellant had not claimed that the third party had taken any steps to become an Occupier of the sidewalk.
[72] In determining whether the residential landowner should be held liable to the user of the sidewalk, the Court of Appeal in Bongiardina did not say that common law principles were irrelevant. It specifically determined that on the particular facts in that case, the neighbour principle in Donoghue v. Stevenson 1932 CanLII 536 (FOREP), [1932] AC 562 would not have extended to impose a duty on the landowner in Bongiardina.
[73] While it did mention two exceptions to the general rule, in Bongiardina, the Court of Appeal also mentioned two cases where non owners had been held to be Occupiers under s1 of the Act. I do not conclude that it was directing the lower courts to ignore further exceptions to the general rule set out in s1 of the Act.
[74] The first, Bogoroch v. Toronto [1991] OJ 1032, was a case in which the Court interpreted s 1(a) of the Act that provides as follows: an Occupier includes a person who is in physical possession of the premises. Then J. held that where the Defendant had obtained a permit to physically occupy part of the city sidewalk, the defendant had effectively appropriated an area of the sidewalk for its own use. The defendant was held to be an Occupier of the sidewalk. In the circumstances there, the sidewalk could fairly be viewed as an extension of the defendant’s store.
[75] In Moody v. Toronto 1996 CanLII 8229 (ON SC), [1996] OJ No. 3418, Dambrot J noted that the definition of Occupier under s 1 (b) of the Act includes a person who has control over persons allowed to enter the premises. He mentioned the common law and the policy that informed it. He cited Snitzer v Becker Milk Co (1976) 1977 CanLII 1149 (ON SC), 15 OR 92d) 345 and Driscoll v Breslin 1954 CanLII 141 (ON CA), [1954] OR 913 “not to suggest that the common law was a guide to the present law, but to show that to find liability on the facts was “neither a novel departure nor lacking an established policy basis”. 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 their almost exclusive use by Skydome patrons and the lack of alternatives to their use.
[76] In my view, the Court of Appeal in Bongiardina was doing no more than acknowledging that while adjacent landowners are ordinarily not liable for the condition of adjacent sidewalks that they do not own, in interpreting the definition of Occupier under the Act, exceptions may apply.
[77] Before the Act was passed, at common law, depending on all of the circumstances, parties who did not own premises could be held to owe a duty to users with respect to premises owned by a third party, for example when they exercised sufficient control and invited persons to use those premises.
[78] In MacDonald v the Town of Goderich 1949 CanLII 97 (ON CA), [1949] OR 619 Aylesworth JA wrote: I think Louzon et al were in sufficient occupation, possession and control of the premises to have the legal right, which they exercised, of inviting the plaintiff thereon, and that upon them was imposed a corresponding duty to the plaintiff to take reasonable care to see that the premises were safe or to warn the plaintiff of the existing danger which the exercise of reasonable care would have disclosed to them.
[79] In Brown v British Israel World Federation (Canada) et al 1950 CanLII 125 (ON CA), [1950] OR 809 the Court dealt with circumstances where the defendant had invited the plaintiff to attend a meeting in a room it did not own. The defendant had a financial interest, because it was seeking donations from its invitees. The plaintiff, an attendee/invitee at the meeting, was injured when he fell on a staircase that provided the only access to the room where the meeting was held. The trial judge held that the defendant was in sufficient occupation possession and control of the staircase. He imposed a duty on the defendant to take reasonable care to see that the stairway was safe for the plaintiff or to warn of the existing danger that reasonable care on its part would have disclosed.
[80] The Ontario Court of Appeal affirmed the trial judgment [1950] OR 819 and held that the duty owing by the invitor appellant was “plain”, noting that the trial judge had found that an examination of the stairs would have disclosed that the stringer had spread, and that the stairs were in a dangerous condition. A duty was imposed on the appellant to see that the ingress and egress of those whom it had invited to attend the meeting could be accomplished in safety.
[81] In Driscoll v Devlin 1955 CanLII 15 (SCC), [1956] SCR 64, after the Ontario Court of Appeal held that the defendant was negligent under the principles of Donoghue v Stevenson, the Supreme Court of Canada agreed and confirmed the liability finding, holding that in the circumstances of that case, an invitor had a duty to warn its invitee of a foreseeable danger on premises owned by a third party.
[82] Obviously the Act standardizes the duty of care owed by Occupiers to take such care as in all the circumstances is reasonable to see that persons entering on the premises are reasonably safe while on the premises.
[83] S 2 of the Act provides that subject to section 9, this Act applies in place of the rules of 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.
[84] It could be argued that because s 2 of the Act mentions replacing the rules of common law that determined the care that Occupiers at common law were required to show, but makes no mention of replacing the common law rules relevant to the imposition of a duty, the policy considerations underlying the imposition of a duty of care at common law continue to apply when determining the circumstances where the duty of care of an Occupier should be imposed. In other words, only the common law levels of care have been replaced, not the common law considerations leading to the imposition of that duty of care. I do not go so far here. Like Dambrot J. in Moody, I do not suggest that the common law continues to directly apply as a guide to the present law. I say only that the definition of Occupier in the Act reflects and incorporates many of the considerations that at common law were held to be relevant. For example, the level of control over premises or users of premises owned by third persons was a consideration when imposing duties as an occupier at common law and is a factor to be considered under s 1.
[85] Like Dambrot J., I do cite the common law cases mentioned above to demonstrate that a finding of liability on the facts here “would be neither novel nor lacking an established policy basis.”
[86] Since Bongiardina was decided in 2000, the definition of “Occupier” under s1 of the Act has been considered and interpreted in a number of cases.
[87] Under the Act, as at common law, more than one Occupier may be found to be liable to make premises safe for its users.
[88] In Pammett v Mc Bride 2013 ONSC, Mc Bride leased premises from Ashcroft for a Tim Horton’s Restaurant. The plaintiff slipped and fell on a walkway forming the main entrance to the Tim Horton’s that was not included under Mc Bride’s lease from Ashcroft. McBride moved for summary dismissal of the plaintiff’s action on the basis that it was not an Occupier of the walkway where the Plaintiff had fallen.
[89] RJ Smith J. dismissed McBride’s summary dismissal motion. He held that there was a triable issue with respect to whether McBride, was an Occupier of the walkway.
[90] RJ Smith J. noted that Tim Horton’s patrons were required to use the walkway to access the Tim Horton’s store. The walkway was used almost exclusively by Tim Horton’s customers. A salt bucket maintained outside the entrance to the restaurant and was used by Tim Horton's employees to salt the walkway. The directors of McBride expected the restaurant manager to salt and the manager inspected the walkway every morning. If she noticed ice, she would instruct staff to salt the area. During inclement weather, Tim Horton’s employees were instructed to inspect the walkway hourly and to salt if necessary.
[91] RJ Smith J. noted in Pammett that the definition of “Occupier” includes not only a person or entity that owns or physically possesses the property, but also a person who has responsibility for and control, not only in respect of the premises, but also over the persons allowed to enter the premises.
[92] Counsel for Starbucks relied on Graham v 7-Eleven Canada 203 Carswell Ont 564 and Mark v Bhangari 2010 ONSC 4011.
[93] In Graham, Sachs J held that the fact that patrons of a convenience store were required to use a portion of a municipal sidewalk when entering and exiting premises did not, in itself, make Monk Realty, the owner of premises, liable to a plaintiff who fell on the municipal sidewalk. [Monk had apparently leased its premises to the operator of a 711 store].
[94] Like the landlord here, Monk Realty was responsible as owner under the City by law to clear, salt and sand the sidewalk adjacent to the property that it owned.
[95] Sachs J dismissed the action against the owner, citing Bongiardina. She wrote: the evidence before me does not disclose a record that would make it possible to argue that the moving party exercised the degree of control over the sidewalk in question to make it an Occupier within the meaning of the Act.
[96] In my view, the position of Monk Realty in that case was more akin to the position of the landlord than to Starbucks here. [Sachs J also dismissed 7-11’s cross claim as against Monk Realty].
[97] Similarly, the Court in Mark v Banghari 2010 ONSC 4011 was dealing on a summary judgment motion with the liability of an owner of land adjacent to a municipal road allowance, [a strip of grass] where the plaintiff was injured. D. Wilson J held that the Court must decide on the facts of the particular case, whether a defendant has control, possession or responsibility over municipal property. On the facts there, the Court held that the plaintiff had not proven that the defendant had sufficient control over the municipal road allowance at the time of the accident. She held that the defendant was not an Occupier of that road allowance.
[98] I have considered all of the authorities already mentioned, bearing in mind all of the evidence here. In deciding whether Starbucks was an Occupier of the sidewalk, I have considered Starbuck’s responsibility for and control over the condition of that area of the sidewalk, the activities carried on there, and Starbucks’ level of control over persons it allowed to enter the sidewalk at that location.
The Evidence Relevant to the Sidewalk Issue
[99] As noted earlier, Shields, the Starbucks shift manager, gave evidence that Starbucks employees were given a shovel and salt and instructed not only to salt and sand 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. Starbucks’ employees were instructed to ensure that there was a clear passageway to the Hammersmith entrance. Her expectation was that “our employees would ensure a clear and free pathway” She said “our responsibility is to be sure our customers are safe.”
[100] The witness Brian McIneray, called to give evidence by counsel for Starbucks said that for several years, he had visited Starbuck almost daily to buy his morning coffee. In cross examination he said that the sidewalk was “like a passage or corridor,” and that it was necessary for Starbucks’ customers to walk across the sidewalk. Anyone entering Starbucks from Hammersmith could not cross anywhere else. He said that the Hammersmith entrance was busier than the Queen Street entrance. In the mornings, [the time when the plaintiff slipped], users of the sidewalk in that area were mostly Starbucks customers. In all the circumstances, he was of the view that anyone coming through the opening in the fence “here” would expect Starbucks to make the area safe for its customers.
[101] Julia McIneray mentioned the “opening in the fence to come in.” She said Starbucks customers had to cross the sidewalk. Because Starbucks had left an opening in its fence, its customers were being “funnelled through”.
[102] Manabet, the Starbucks District Manager, said she was aware that its customers parked on Hammersmith and used the Hammersmith entrance.
Considerations and Conclusions on Whether Starbucks was an Occupier of the Sidewalk
[103] I have found that Starbucks expected that in the morning hours, many of its customers would drive to Hammersmith, park, cross over the sidewalk through the gap in the fence and enter its store. They would exit using the same path.
[104] I have found that by building its patio and configuring its fence in the manner that it did, for its own commercial benefit, Starbucks created a pathway that extended in a straight line from its side door, across its exclusive use patio and continued over the city sidewalk, Starbucks knew that that pathway was used by many of its customers, and only by its customers.
[105] But for Starbucks actions, customers entering its store, including the Plaintiff, would not have been on the sidewalk at all.
[106] The use of the sidewalk Starbucks created was unrelated to other uses of the municipal sidewalk in the ordinary course.
[107] 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.
[108] In my view, in the area of the sidewalk shown on Exhibit 7, Starbucks took upon itself a sufficient level of possession and control that it was feasible for it to ensure that it was safe for its customers. Even though Starbucks had no duty [as an owner] under the city by law to clear salt and sand the sidewalk, it did so in the area of the pathway that it had created. In that area, by reason of its actions, it can fairly be said that Starbucks appreciated that it had duty to take reasonable steps to protect the safety of its customers.
[109] While Starbucks may not have appropriated the area of the sidewalk for its exclusive use, I accept the evidence of Brian McIneray, that in the mornings, Starbucks customers parking on Hammersmith, crossing the sidewalk constituted most of the users of the sidewalk in that area. Like the users of the Skydome walkway in Moody, customers of Starbucks had almost exclusive use of the sidewalk in that area.
[110] 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 s1 of the Occupiers’ Liability Act.
M.A. Sanderson J.
Released: July 27, 2015
COURT FILE NO.: CV-08-368350
DATE: 20150727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLE MACKAY
Plaintiff
– and –
STARBUCKS CORPORATION, CITY OF TORONTO, K.J. BEAMISH CONSTRUCTION CO., LIMITED, QUEEN HAMMERSMITH HOLDINGS INC. and DBM LANDSCAPING LIMITED
Defendants
REASONS FOR DECISION
M.A. Sanderson J.
Released: July 27, 2015