Ontarians of a certain vintage will remember Toronto Maple Leafs legend Wendel Clark encouraging them to “Be nice. Clear your ice” on public walkways around their homes and businesses.
With the slip-and-fall season upon us, there’s no question that following Clark’s advice is the neighbourly thing to do. But when it comes to establishing liability in court, the catchy slogan may not hold as much water, as an Ottawa woman recently discovered when a judge dismissed her claim against her landlords for a fall on the municipal sidewalk outside her home.
What happened?
According to the decision, the plaintiff was injured after slipping and falling on the municipal sidewalk while walking between her rented parking spot and the front door of her apartment building.
She sued both the City of Ottawa and her landlords, arguing that the building owners owed her a duty under Ontario’s Occupiers’ Liability Act (OLA) for maintaining the municipally owned sidewalk.
While the city admitted its responsibility for maintaining the property where the plaintiff slipped, the landlords denied they owed any duty to her and moved for summary judgment, dismissing the claim against them.
The judge in the case sided with the landlords, citing previous cases in which courts have held that property owners are generally not occupiers of the adjacent municipal sidewalks, meaning they are not responsible for maintaining them.
There are two exceptions to this general rule:
1) the property owner may be deemed an occupier under the OLA if they assume control of the sidewalk or if special circumstances apply
(2) the duty of care for their own property extends to ensuring that conditions on their land do not create hazards on adjoining property.
The judge found that neither exception applied in this case. In addition, the judge ruled that the landlords had no duty to warn its tenants about conditions on the sidewalk or any implied contractual duty to provide them with safe passage from the building to the parking lot, dismissing the entire case against the landlords.
The plaintiff’s claim will now proceed against the municipality alone.
Municipalities and the OLA
This case did not break much legal ground. As the judge noted, plenty of existing caselaw establishes that private landlords will not generally be held liable for maintaining city sidewalks.
Still, it’s not unusual to see similar scenarios where plaintiffs attempt to find a creative justification for adding a non-city defendant in sidewalk cases.
The reason is the special rules that apply to lawsuits against municipalities in Ontario courts. Under s. 44(9) of the Municipal Act, plaintiffs must show that there was “gross negligence” on the part of a municipality before it can be considered liable for personal injury caused by snow or ice on a sidewalk.
Test for gross negligence
The test for gross negligence is very fact-specific, so it’s difficult to say precisely what circumstances would result in a successful claim. What is certain is that it’s a much higher standard for plaintiffs to meet than against any other personal or corporate defendant in an OLA case.
Although it wasn’t an issue in this case, Ontario law also requires that plaintiffs properly notify municipalities within 10 days of an injury occurring on their property. Otherwise, claimants may be barred from making a claim.
For all other defendants – including parties such as landlords or snow removal contractors — the OLA sets a deadline of 60 days for notice, which must be served by registered mail or personal service and include the incident’s time, date and location.
If you’ve suffered an injury in a slip and fall, feel free to contact me or another member of the team at Edwards Pollard to speak with a slip and fall lawyer in Oakville. You can also read more about what your next steps should be in this previous post.
