T’was The Season of Ice, Falls and Injuries

Recently an orthopaedic surgeon told me that he and his colleagues treated over 150 ankle fractures in two months. He had never seen so many injuries from slip and fall accidents. A very icy winter was to blame.

My colleague, Andrew Murray, discussed the legal obligations to clear snow and ice off private property in his blog of January 17th, 2017.

Essentially the Occupier’s Liability Act, Section 3(1) requires an occupier of a premise to take such care as in all of the circumstances is reasonable. If you fall on someone’s property and break your ankle you have to prove on a balance of probabilities that the owner/occupier of the property failed to take reasonable steps to remove the snow and ice. Success depends heavily on the facts.

But what if you slip on ice on a municipal sidewalk and injure yourself? Unfortunately the hurdle to succeed is high. First, you have to provide notice to the municipality of your claim within 10 days of the event. The notice period, however, is not cast in stone. The court will excuse the failure to provide timely notice if you can provide a good reason for your failure to provide the notice in time and the municipality can’t prove that it was prejudiced in its defence by your late notice. More importantly, however, Section 44(9) of the Municipal Act provides that the municipality is not liable for personal injuries caused by snow or ice on a sidewalk except in cases of gross negligence. Proving gross negligence is much more difficult than proving the municipality failed to take reasonable care.

Importantly though case law has held that a municipal sidewalk can be occupied both by the municipality that owns the sidewalk and the adjacent private property owner. A fairly recent case of MacKay vs. Starbucks Corporation supports this statement. In the MacKay case, although the fall took place on the sidewalk and the sidewalk was owned by the City of Toronto, Starbucks had exerted the requisite amount of control over the sidewalk such that the court concluded Starbucks was an occupier within the meaning of the Occupier’s Liability Act. Of course, the municipality was also an occupier of the sidewalk. Importantly, even though Starbucks didn’t own the sidewalk it still was held to be an occupier under the Occupier’s Liability Act. Starbucks had an obligation for that portion of the city sidewalk it “controlled” to take reasonable care for the safety of persons entering onto the sidewalk. The City of course was also an occupier of that portion of the sidewalk but in order for the injury to a Plaintiff to succeed against the City, it would be necessary to show that the City was grossly negligent.

Many municipalities have by-laws requiring residential and commercial property owners to clear the ice and snow on public sidewalks surrounding their property. Court decisions, however, make it clear that just because there is an obligation under the municipal by-law to clear the ice and snow from a public sidewalk it is not sufficient to make the home owner an occupier within the meaning of the Occupier’s Liability Act negligent. More evidence is necessary to show that the property owner effectively took control of the adjacent sidewalk. In the Starbucks case the evidence showed that the manner in which the patio and fence was constructed by Starbucks created a pathway from its side door through the patio and out over the sidewalk. The sidewalk was essentially a pathway right into the store. Starbucks effectively directed all of its customers entering and exiting the store to use that area of the sidewalk. It controlled the pedestrians’ access route and ensured that they would walk on the pathway designated, including on that portion of the sidewalk.

The bottom line here is that while slip and fall incidents are simple accidents they can involve a fair degree of legal complexity, especially if they happen on a municipal sidewalk. An experienced lawyer should be consulted and consulted quickly after the incident given the notice requirements.

Written by Peter Downs

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