clear snow and ice

So What is My Duty to Clear Snow and Ice at My Home?

Lawyers are a prime target to get cornered at a cocktail party and then be asked answers to random legal questions. During the winter months, one of the more common questions I get asked relates to the responsibilty to clear snow and ice.

I don’t mind this question as I generally don’t think people appreciate they do have more of a duty to clean up snow/ice than they might think. As an added bonus, the leading case answering this question is still something I learned back in law school – the 1991 decision from the Supreme Court of Canada called Malcolm v. Waldick. It is also a case in which my firm, Lerners, was involved in from the trial on up to the Supreme Court of Canada appeal and to boot, it arises from my old stomping grounds in Norfolk County!

Malcolm v. Waldick

A grown man stopped off at his sister’s rural rented farmhouse property located outside of Simcoe, Ontario, four days after there had been an ice storm. Mr. Waldick slipped in the icy parking area and seriously injured himself.

The court was asked to consider the implications of the Occupiers’ Liability Act, which is legislation this is still on the books today, in exactly the same form. The court specifically looked at section 3(1) of the Occupier’s Liability Act which states:

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.

The court, at every level, from the trial, to the Court of Appeal, and finally the Supreme Court of Canada concluded that Mrs. Malcolm failed in the duty she owed to her brother, who she knew was coming to her home for a haircut, by not clearing the parking lot of ice.

The court rejected the argument that “no one out here in the country clears the snow or ice in the parking lot”, saying that no amount of community custom will render negligent conduct reasonable.

The court said that while the Occupiers’ Liability Act doesn’t impose a requirement to clear every square inch of a lot, it required more than what Mr and Mrs Malcolm did – which was nothing.

The implications of this decision continue 25 years later. The answer I give folks at a cocktail party has remained the same – there isn’t a specific answer, all I can say is you have to do what is reasonable. “Reasonable” always depends on the specific facts, and of course, doesn’t just relate to ice and snow, but also many other conditions of a premise, so consider the following examples to start getting the point, all of which come from my own filing cabinet of files from over the years:

  • A large apartment building had problems with either the sewage system or with a broken water line at the rear of the building, such that for months, water seeped out of the ground and flowed down the front of the building, to the road, where it drained into a municipal drain. This problem lasted for months, so long in fact that the tenants circulated a petition. The problem continued into the winter, when the water froze, resulting in a slip and fall that severely fractured a shoulder, requiring orthopedic surgery. Do you think the owners of the building acted reasonably or unreasonably?
  • Was it reasonable or unreasonable for a fast food fried chicken restaurant to allow the garbage bin inside the restaurant to fill up to the point of overflowing, such that my client slipped on a greasy piece of chicken on the floor, causing him to strike his head and suffer a brain injury?
  • Knowing that a community centre was hosting a special pancake breakfast on a Sunday morning, was it reasonable or unreasonable to make no arrangements for sanding and salting of the lot, where the lot was so slippery that not just my client slipped (again suffering a brain injury), but also the paramedics when they arrived on the scene to assist?
  • Was it reasonable or unreasonale for a business to allow water to drip from a second storey HVAC unit, onto the landing for the door below, where it pooled into black ice, obscured by a dusting of snow?
  • Was it reasonable or unreasonable for a landlord to create basement apartment by installing a set of stairs to the basement that failed to comply with the Building Code, causing the tenant to fall from the top to the bottom, resulting in serious injuries?
  • At a restaurant, with washrooms located in the basement, was it reasonable or unreasonable for the stairs to the basement to be unlit, causing an elderly patron, who thought the darkened space was a hallway, rather than stairwell, to fall from the top to the bottom?
  • A popular donut shop is accessed from the parking lot to a side entrance. Ice was allowed to accumulate directly in this pedestrian lane. An elderly patron fell, blowing out her knee, and was required to be non-weight-bearing for many weeks. Given the frequency of pedestrian traffic and the location of the entrance, was it reasonable or unreasonable for the donut shop to allow ice to remain?

Do you start to get the point? Lawsuits are not, or at least shouldn’t be, about fanciful ways to shift personal resonability onto someone else. In each of the examples above, as indeed with the Malcolm v. Waldick decision, the occupier of a premise failed to do, in pretty obvious ways, what someone should do when there is a known condition of danger to guests on the premise.

So – you have a duty, indeed a responsibility, to take every reasonable precaution in the circumstances when it comes to winter maintenance. You don’t have to be out clearing ice in the middle of the ice storm, but by four days later, if there is still a sheet of ice on your walkway, you would be very vulnerable to a finding of negligence. If you are hosting a party on the weekend, you’ll have a more onerous responsibility to keep things cleared, compared to the rest of the time if you don’t expect to receive a visitor.

Andrew Murray

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