Court File and Parties

COURT FILE NO.: CV-18-78527 DATE: 2024/09/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Laura Burley, Plaintiff – and – City of Ottawa and John Alexander Wright and Elaine Ruth Wright, Defendants

COUNSEL: Gary Boyd and Christine Lacasse, for the Plaintiff/Responding Party No one appearing for the Defendant City of Ottawa Sarah S. Bedard, for the Defendants/Moving Parties John Alexander Wright and Elaine Ruth Wright

HEARD: March 25, 2024

Reasons for JUDGMENT Partial Summary Judgment Motion

Rees J.

I. Overview

[1] The defendants John and Elaine Wright owned an apartment building in Ottawa. The plaintiff, Laura Burley, was one of their tenants. After parking her car in her rented parking spot at the rear of the building, she slipped and fell on the municipal sidewalk while walking from the parking lot to the front door of the building. The City of Ottawa admits that it is responsible for maintaining the sidewalk where Ms. Burley fell. The Wrights deny that they owe any duty to Ms. Burley for maintaining the municipal sidewalk.

[2] The Wrights bring this motion for partial summary judgment seeking the dismissal of Ms. Burley’s claim against them.

[3] There is no genuine issue requiring a trial. The Wrights do not owe Ms. Burley a common law duty to maintain the municipal sidewalk adjacent to their property. They are not occupiers of the municipal sidewalk under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. Nor is there any basis to find that the Wrights had a common law duty to warn Ms. Burley about the conditions on a public sidewalk. Finally, there was no implied contractual duty on the Wrights to maintain the municipal sidewalk between the parking lot and the front door of the building, nor was there an implied contractual duty to provide Ms. Burley direct passage through the building to her parking space.

[4] This is an appropriate case to grant partial summary judgment. Ms. Burley’s claim against the Wrights can be readily bifurcated from the claim against the City and there is no risk of inconsistent findings after a trial against the City. The City has consented to a dismissal of its crossclaim against the Wrights if summary judgment is granted.

[5] In the result, the motion for partial summary judgment is granted. The plaintiff’s action against the Wrights is dismissed.

II. Facts

[6] One morning in late November 2016, Ms. Burley slipped and fell on a sidewalk while walking from her parking space to the front door of her apartment building. Where Ms. Burley fell is not disputed: Ms. Burley fell on the municipal sidewalk. She did not fall on the Wrights’ property.

[7] The evidence of John Wright, the Wrights’ property manager, and their snow clearing contractor are consistent and uncontradicted: they did not maintain or clear snow or ice from the municipal sidewalk where Ms. Burley fell. I accept this evidence.

[8] A snow clearing contractor provided snow clearing services for the apartment. This was limited to clearing snow from the parking lot for the apartment building, the front entrance walkway for the building, and the lane leading to the building’s garbage shed.

[9] The contractor was not hired to clear snow or manage ice on the municipal sidewalks adjacent to the apartment building. Nor did the contractor do so. The only snow the contractor removed from the municipal sidewalks was incidental to clearing snow from the parking lot and the lane leading to the garbage shed. This was limited to the area directly in front of the width of the parking lot and the lane.

[10] Tenants accessed the parking lot by walking from the front door of the building along the municipal sidewalk to the rear parking lot. Although there was a rear entrance to the building, it was not used by tenants.

III. Analysis

[11] The sole issue on this motion is whether partial summary judgment ought to be granted.

A. The law of summary judgment

[12] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or the defence, or the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(2).

[13] There will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination of the action on the motion. This is the case when summary judgment allows the judge to make the necessary findings of fact; allows the judge to apply the law to the facts; and is a proportionate, more expeditious, and less expensive means to achieve a just result than a trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

[14] The motion judge must first determine whether there is a genuine issue requiring a trial based only on the evidence filed on the motion, without relying on the enhanced fact-finding powers under r. 20.04(2.1). If, however, the motion judge concludes that a genuine issue for trial exists, the motion judge must then consider whether the need for a trial may be avoided by resorting to the enhanced fact-finding powers set out in rr. 20.04(2.1) and (2.2). The motion judge may use those powers, in his or her discretion, unless doing so would be contrary to the interests of justice. Using the enhanced powers will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

[15] On a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party has discharged its evidentiary burden, the onus then shifts to the responding party to prove that its claim or defence has a real chance of success. See Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 443; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037, at para. 12, aff’d 2010 ONCA 348. To successfully resist a summary judgment motion, a responding party must set out sufficient facts to show that there is a genuine issue requiring a trial.

[16] Each party must put its best foot forward to show whether there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. The responding party must “lead trump or risk losing”: BNS v. Compas, 2018 ONSC 3262, at para. 9. A responding party “may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: r. 20.02(2). See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665, 91 C.L.R. (4th) 146, at para. 29.

[17] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception found in r. 20.02(1) permitting an affidavit made on information and belief: Sanzone, at para. 15.

B. The law of partial summary judgment

[18] The Court of Appeal for Ontario has consistently held that partial summary judgment should be “a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34; Malik v. Attia, 2020 ONCA 787, 29 R.P.R (6th) 215, at para. 30; Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 29.

[19] In Malik, at para. 62, the Court of Appeal directs motions judges to consider the following questions:

a. Has the moving party demonstrated that dividing the case into several parts is cheaper for the parties? b. Has the moving party demonstrated that partial summary judgment will get the parties’ case in and out of the court system more quickly? c. Has the moving party demonstrated that partial summary judgment will not result in inconsistent findings by multiple judges who will touch the divided case?

C. This is an appropriate case for partial summary judgment

[20] This is a rare case in which it is appropriate to grant partial summary judgment.

[21] Ms. Burley’s claim against the Wrights can be readily bifurcated from Ms. Burley’s claim against the City. The issues arising from Ms. Burley’s claim against the Wrights are distinct from those arising against the City. It turns on the following questions:

a. Do the Wrights owe Ms. Burley a common law duty to maintain the municipal sidewalk abutting the property? b. Are the Wrights occupiers of the municipal sidewalk under the Occupiers’ Liability Act? c. Did the Wrights have a common law duty to warn Ms. Burley about the condition of the municipal sidewalk? d. Did the Wrights owe Ms. Burley a contractual duty to either provide access to the parking lot from the rear of the building or a contractual duty to maintain the municipal sidewalk?

[22] Answering “no” to these questions would completely dispose of the action against the Wrights. None of these questions are tied to the claim against the City. The City admits it is responsible for maintaining the sidewalk where Ms. Burley fell.

[23] Further, I am satisfied that the half-day partial summary judgment motion was less costly than requiring the Wrights to participate in a two-week trial. I am also satisfied that a partial summary judgment motion, if successful, terminates the proceeding between Ms. Burley and the Wrights, thus getting the Wrights in and out of the court system more quickly. Partial summary judgment narrows the issues that remain for trial to those between Ms. Burley and the City.

[24] Finally, this is a rare instance where partial summary judgment will not result in inconsistent findings by multiple judges who will touch the divided case because there is no scope for overlap. If I were to grant the motion, the only remaining issues are between Ms. Burley and the City.

[25] I need not make any findings about the City or Ms. Burley that risks inconsistent findings in Ms. Burley’s claim against the City. On the Wrights’ motion, I need not make any findings that Ms. Burley was contributorily negligent. And, if I grant the Wrights’ motion, the City has consented to dismiss its crossclaim for contribution and indemnity against the Wrights. Therefore, the Wrights’ alleged negligence and the City’s alleged negligence are not linked.

D. There is no genuine issue requiring a trial

[26] I am satisfied that there is no genuine issue requiring a trial—I can reach a fair and just determination of the claim against the Wrights on the motion. I can make the necessary findings of fact; I can apply the law to the facts; and proceeding by way of motion is a proportionate, more expeditious, and less expensive means to achieve a just result than a trial as between the Wrights and Ms. Burley.

[27] Ms. Burley argues that I do not have the necessary record before me to reach a fair and just determination of the claim against the Wrights for five reasons. I disagree.

[28] First, Ms. Burley argues that the Wrights’ inability to locate their property management agreement, their lease and lease renewal agreements with Ms. Burley, the last known contact information for the other tenants at the time, and invoices for the purchase of salt or abrasive material is relevant to the motion. She suggests the Wrights’ inability to locate these documents and information is a matter of credibility that is best tested at trial.

[29] I reject this argument. Mr. Wright’s examination for discovery was held on February 5, 2020. If Ms. Burley objected to Mr. Wright’s answers or wished to investigate these issues further, Ms. Burley had four years to bring an undertaking and refusals motion before the partial summary judgment motion. She did not do so.

[30] Nor did Ms. Burley cross-examine Mr. Wright on the motion, including on this issue. Similarly, it was open to Ms. Burley to cross-examine the Wrights’ property manager, Mr. Greenberg, who provided an affidavit on the motion. Again, she did not do so.

[31] Not having taken these steps, she cannot now rely on them as a basis to defeat the motion. Ms. Burley is required to put her best foot forward and I am entitled to assume that the record contains all the evidence the parties would present at trial.

[32] Second, Ms. Burley points to the importance of the missing lease agreement to establish whether there was a contractual duty of care. But neither party has located the lease agreement or lease renewal agreements. The lack of a lease agreement will not improve at trial.

[33] Nor does Ms. Wright’s affidavit suggest that a contractual duty of care existed. Nor is there any evidence to that effect from the examination for discovery of Mr. Wright. As discussed, Ms. Burley did not cross-examine Mr. Greenberg on his affidavit. Again, I am entitled to assume that the record contains all the evidence the parties would present at trial.

[34] Third, Ms. Burley points to the disagreement between her evidence and Mr. Greenberg’s about whether there was a salt bin at the front entrance of the building. This does not present an impediment to summary judgment. Whether or not there was a salt bin at the front of the building is ultimately irrelevant to the motion.

[35] At its highest, Mr. Greenberg’s evidence is that the salt bin was for occasional use by the tenants and by Steve Ponting, who provided cleaning services once a week. Mr. Ponting advised Mr. Greenberg that he only applied salt as needed on the walkway leading to the building’s entrance and not on any of the municipal sidewalks adjacent to the building. Nor did Mr. Greenberg instruct Mr. Ponting to salt the municipal sidewalks. I therefore find that the defendants did not provide the salt bin for the salting of municipal sidewalks. It is thus irrelevant whether it was there at the time of Ms. Burley’s fall. Even if it were otherwise, the fact a property owner has taken on the task of removing snow and ice from a municipal sidewalk is not sufficient to make the owner an “occupier” of the sidewalk: Appleyard v. Essex Terminal Railway Co., [1997] O.J. No. 3226 (Gen. Div.), at para. 10; and Coulson v. Hamilton (City), at para. 51.

[36] Fourth, Ms. Burley argues that the Wrights did not put their best foot forward on the motion because they did not file an affidavit from Mr. Ponting. Having reviewed the record, I am satisfied that the Wrights have discharged their evidentiary burden on this motion. Mr. Ponting’s evidence is tangential to the main issues on the motion and I decline to draw an adverse inference against the Wrights because they relied on information and belief. I am satisfied that Mr. Greenberg made enquiries of Mr. Ponting. In any event, if Ms. Burley thought Mr. Ponting’s evidence was central to their case, it was open to her to examine Mr. Ponting on the motion under r. 39.03, but she chose not to do so. Thus, I am unpersuaded by this argument.

[37] Finally, Ms. Burley argues that the Wrights refused to make reasonable inquiries of their property manager, Mr. Greenberg. Even if this were so, and I am not persuaded that it is, Mr. Greenberg provided an affidavit on the motion. Ms. Burley was entitled to cross-examine him and chose not to do so. There is therefore no merit to these submissions.

The Wrights do not owe Ms. Burley a common law duty of care and they are not “occupiers” of the municipal sidewalk under the Occupiers’ Liability Act

[38] The Wrights and Ms. Burley agree that there is no common law duty on the owner of a property to clear snow and ice from public sidewalks adjacent to the property: Bongiardina v. Vaughan (City) (2000), 49 O.R. (3d) 641 (C.A.), at para. 19. In Bongiardina, the Court of Appeal for Ontario held that “[t]he 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”: at para. 19.

[39] The Occupiers’ Liability Act governs the duty of care owed by an occupier of premises to anyone who enters those premises. Section 2 of the Act replaces the common law duty of care with a single statutory duty: MacKay v. Starbucks Corporation, 2017 ONCA 350, 413 D.L.R. (4th) 220, at para. 11. It provides:

2. 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.

[40] 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:

3. (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.

[41] “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.

[42] Under the Act, a property owner is generally not an “occupier” of an adjacent municipal sidewalk and is therefore not responsible for maintaining the sidewalk: MacKay, at paras. 16-17.

[43] The Court of Appeal has recognized two exceptions to the general principle that a property owner is responsible only for their own property. First, a property owner may be deemed to be an “occupier” of a sidewalk under s. 1 of the Act if the owner assumes control over the sidewalk or if there are “special circumstances” in which an owner may become an occupier of the public sidewalk: Bongiardina, at para. 20; MacKay, at para. 17.

[44] The second exception is that the duty of care on an owner for their own property extends to ensuring that conditions or activities on their property do not flow off the property and cause injury to persons nearby: Bongiardina, at para. 21.

[45] Neither exception applies here.

[46] First, the Wrights did not assume responsibility for and control over the sidewalk where Ms. Burley slipped. I find that neither they nor contractors on their behalf cleared, salted, or applied abrasives to the sidewalk where Ms. Burley slipped. (In any event, as discussed, this conduct alone would not have been sufficient for the Wrights to be deemed an occupier under the Act.) Nor are there any special circumstances that would make the Wrights an occupier of the municipal sidewalk. The sidewalk was being put to ordinary use by all members of the public, including the tenants of the apartment building.

[47] Ms. Burley relies on Moody v. Toronto (City) (1996), 31 O.R. (3d) 53 (Gen. Div.). But Moody is distinguishable. There, the court held, in dismissing a motion for summary judgment, that there was a genuine issue whether the owners of the then Skydome in Toronto could be an occupier of the public walkways adjacent to the stadium because of the “special circumstances” relating to those walkways. The alleged special circumstances included: the walkway was used almost exclusively by Skydome patrons; a significant number of patrons had no alternative but to use the walkway; and given the number of patrons at the beginning and end of an event, the crush of activity would make it impossible for a patron to watch for hazards on the walkway.

[48] Here, by contrast, there was no exclusive use of the sidewalk by residents of the eight-unit apartment building; the sidewalk was used by all members of the public. Nor can the tenants’ traffic on the sidewalk be likened to the “crush of activity” at the end of a sporting event or concert at a stadium.

[49] Ms. Burley also argues that the lack of an alternative route between the parking lot and the entrance to the apartment building is sufficient to constitute a special circumstance. I disagree. Simply requiring residents to use the municipal sidewalk to access the parking lot and the front door to the apartment building does not make the Wrights an “occupier” within the meaning of the Act.

[50] In Appleyard, this court rejected the argument that the non-exclusive use of a municipal sidewalk to access a parking lot from private property constitute special circumstances that bring the owner of the property within the meaning of “occupier”. In that case, General Motors provided parking to its employees. To access the parking, employees had to leave the plant and cross railway tracks using a public sidewalk crossing. The city was responsible for maintaining the sidewalk crossing. The plaintiff had finished her shift at the GM plant and was walking towards the lot when she tripped on a metal plate that was protruding adjacent to the sidewalk crossing. She fell, injuring her knee.

[51] The plaintiff in Appleyard argued that the defendant employer was liable because the sidewalk crossing was used overwhelmingly by its employees and must be used to access the parking lot. The plaintiff also argued that upon the change of shifts at the plant, the large number of employees leaving created such a crush that it would be impossible for an employee to watch for hazards on the sidewalk.

[52] Even though the court accepted in Appleyard that many employees used the sidewalk crossing to access the parking lot during a shift change, the court did not accept that this meant it was used almost exclusively by employees. The court held that this remained a non-exclusive use and held that the employer had no duty under the Occupiers’ Liability Act for the public sidewalk crossing.

[53] There is no difference in principle between Appleyard and this case that would lead me to reach a different conclusion.

[54] In this regard, the building’s status as a residential apartment building does not change the analysis under the Act. The landlord-tenant relationship does not alter the application of the Act; the Act applies to landlords: Dogan v. Pakulski, at paras. 19-20; Manning v. 3980 Investments Ltd., [2003] O.J. No. 1937 (S.C.); and Johnston v. Standard Life Assurance Co. (1990), 73 O.R. (2d) 495 (Gen. Div.).

[55] Requiring residents to use a municipal sidewalk to access the building’s parking lot is not enough to make the landlord an “occupier” under the Act. In doing so, the landlord does not assume responsibility for and control of the sidewalk, nor does this constitute special circumstances.

[56] More generally, this court has rejected the argument that the absence of an alternative route onto private property makes a landlord an “occupier” within the meaning of the Act. In Graham v. 7 Eleven Canada Inc., at paras. 10-12, the court held that requiring patrons to use a municipal sidewalk to enter and exit a convenience store did not make the landlord of the store an “occupier” of the sidewalk. See also Janssen v. William and Markle Jewellers Ltd., 2019 ONSC 425, at para. 25.

[57] Ms. Burley’s reliance on Richardson v. St. James Court Apartments Ltd., [1963] 1 O.R. 534 for a landlord’s duty to keep a walkway leading to the entrance of an apartment building reasonably safe is misplaced. Richardson does not assist Ms. Burley because the plaintiff in Richardson slipped and fell on the defendant’s property, not a public sidewalk. Richardson also predates the Legislature’s enactment of the Occupiers’ Liability Act, and as discussed, s. 2 of the Act replaces the common law duty of care with a single statutory duty.

[58] Finally, the second exception to the general principle that a property owner is responsible only for their own property does not apply here. The Wrights did not allow conditions or activities on their property to flow onto the adjacent municipal sidewalk. There is no evidence that there were any conditions or activities flowing off the property onto the sidewalk that would create a dangerous condition or cause injuries.

There are no circumstances giving rise to a duty to warn

[59] Ms. Burley argues that there are special circumstances giving rise to a duty to warn about conditions on the sidewalk. I disagree.

[60] The Court of Appeal in MacKay held that: “[w]hether 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”: at para. 45.

[61] Ms. Burley was unable to identify any authority in which an Ontario court has found a duty to warn in circumstances analogous to the facts of this case, and I am not aware of any.

[62] Even if I were to accept that such a duty to warn could arise in principle, I find that there are no circumstances in this case that could give rise to a duty to warn. For instance, there is no evidence that the weather conditions on the morning of Ms. Burley’s fall presented an unreasonable or unusual risk that could give rise to a duty on the Wrights, as landlords, to warn its tenants that a public sidewalk could be icy or slippery. (To be clear, I should not be understood as suggesting that a duty to warn could arise from weather conditions alone.)

There is no implied contractual duty

[63] Ms. Burley argues that the Wrights had an implied contractual duty to provide her with reasonably safe passage from the apartment building to the parking lot.

[64] Ms. Burley articulates the implied duty overly abstractly. What would this mean on the facts? It would mean either the Wrights had an implied contractual duty to maintain the municipal sidewalk between the parking lot and the front door of the building, or that the Wrights had an implied contractual duty to provide Ms. Burley direct passage through the building to her parking space.

[65] There are three categories of implied contractual terms:

a. implied terms to give business efficacy to a contract; b. implied terms based on custom and usage; and c. implied terms as a matter of law (as the legal incident of a particular class or kind of contract).

See Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 SCR 711; and M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 SCR 619; see also Geoff R. Hall, Canadian Contractual Interpretation Law, 4th ed. (Toronto: LexisNexis, 2020), at pp. 187-201.

[66] With respect to the first two categories, courts ought to be cautious in implying contractual terms and should not rewrite the contract for the parties. “Implied terms are as a rule based upon the presumed intention of the parties and should be founded upon reason. The circumstances and background of the contract, together with its precise terms, should all be carefully regarded before a term is implied”: G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd. (1983), 43 O.R. (2d) 401 (C.A.), at p. 403, per Cory J.A. (as he then was), cited with approval in ter Neuzen v. Korn, [1995] 3 SCR 674, at pp. 712-13.

[67] As for business efficacy, there is no evidence that the parties had the intention of making either of the proposed duties a term of the lease. Neither party was able to locate the lease agreement. Nor did Ms. Burley provide any evidence that would support these implied contractual terms.

[68] For instance, there was no evidence that the parties had any expectation or intention when they entered into the lease agreement that tenants would use the back door to access the parking lot. Ms. Burley’s evidence was that the back door was locked and could not be used by tenants at any time of the year. Mr. Wright’s evidence was that the back door was used for maintenance. At its highest, Mr. Wright speculated that tenants might use the back door rarely. His understanding was that tenants who rented parking spaces would access the building via the front door, using the municipal sidewalk. Ms. Burley also acknowledged that it was implicit when she started renting her parking spot in 2015, that she was required to use the municipal sidewalk to access her parking spot. None of this supports Ms. Burley’s contention of an implied term.

[69] Without any supporting evidence, I am not prepared to imply contractual terms on the basis of business efficacy.

[70] Even though the parties could not locate the lease agreement, two things are not in dispute. First, Ms. Burley leased one of the units in the apartment building. Second, Ms. Burley leased a parking spot at the rear of the building.

[71] I find, on the evidence, that the lease was effective without implying additional contractual terms. Ms. Burley was supplied with a parking spot, which was accessible from the municipal sidewalk. The parking spot was properly maintained by the landlord. Ms. Burley was also provided with a safe means of leaving the building through the front door, which exited onto the sidewalk. No other term is reasonably required to give effect to the lease.

[72] As for custom or usage, Ms. Burley did not establish any custom or usage that would imply the proposed terms in the lease agreement.

[73] Nor am I prepared to imply these terms under the third category of implied contractual terms – as a legal incident of a residential tenancy as a class of contract – because to do so is unnecessary: Canadian Pacific Hotels, at p. 776.

[74] Ms. Burley contends that Richardson and Dogan support her argument of an implied contractual term. I disagree.

[75] As discussed, Richardson does not assist Ms. Burley because the plaintiff in that case slipped and fell on the defendant’s property, not a public sidewalk. It also predates the statutory duty of care established by the Act.

[76] And in Dogan, at paras. 17-19, the court held that a landlord’s implied contractual obligation to a tenant to use reasonable care so that the means of access to a property do not become unsafe is now dealt with under the Act. In this regard, what the common law once implied to residential tenancies as a class of contract must, since the Act’s passage, be considered through its statutory framework.

[77] This was an eight-unit residential building with parking at the rear of the building. Implying the kind of terms that Ms. Burley advocates for would have significant liability implications for landlords in the province. Implying these terms as a legal incident of a residential tenancy as a class of contract is a policy decision best left to the Legislature.

[78] I thus find that the Wrights did not have an implied contractual duty to Ms. Burley to maintain the municipal sidewalk between the parking lot and the front door of the building, nor to provide Ms. Burley direct passage through the building to her parking space.

[79] For all these reasons, I conclude that Ms. Burley has failed to discharge her burden to prove that her claims against the Wrights have a real chance of success. There is no genuine issue requiring a trial.

IV. Disposition

[80] The motion for partial summary judgment is granted and the action against the Wrights is dismissed. On consent, the City’s crossclaim against the Wrights is dismissed without costs.

[81] If the parties cannot agree on costs, they can each make written submissions to me of no more than 1,000 words, accompanied by bills of costs and any Rule 49 offers, within two weeks of the release of these reasons for judgment. These are to be sent to scj.assistants@ontario.ca to my attention.

Justice Owen Rees Released: September 17, 2024