Written By: Dale Orlando and Ryan Marinacci, Student-at-Law
Many of us live in communities where the local Municipal government has enacted by-laws that require property owners to clear snow and treat ice on adjacent sidewalks despite the fact that the sidewalk lies outside of the owner’s property line. What happens if the property owner fails to maintain the Municipality’s sidewalk in a safe condition and someone falls and is injured as a result?
With winter around the corner, the dangers of the accumulation of snow and ice on City sidewalks once again become an important concern for municipalities and property owners alike. The thaw-freeze conditions that occur when temperatures rise and quickly drop result in run-off from snow melting on one property that can flow easily onto another and freeze. Serious injuries can occur when someone falls on a private or municipal property due to a failure to address winter conditions.
In general, a Municipality cannot escape liability for their failure to maintain their sidewalk in a condition that makes it reasonably safe for ordinary users, despite any by-law that places the responsibility for winter maintenance on the adjacent property owner. Likewise, an adjacent property owner will not be found to be liable for ignoring the obligation imposed by a Municipal by-law requiring the property owner to maintain the adjacent sidewalk that lies outside of the boundary of their property.
Addressing what is now s. 44 of the Municipal Act, the Court in Bongiardina wrote:
…s. 284 of the Municipal Act imposes a duty on municipalities to keep highways (which include sidewalks) in a reasonable state of repair. It is doubtful that a municipality could circumvent this duty by trying to impose a replacement duty on its own residents.
As authority for that proposition, the Court in Bongiardina relied on Lutz v Toronto, 1975 CanLII 585 (ON SC), where Justice Goodman held that passing a by-law imposing on adjacent property owners a duty to remove ice and snow did not relieve the Municipality from liability imposed by legislation such as the provisions of the Municipal Act.
However, a property owner may be found liable for a slip and fall incident that happens outside of the bounds of their property if they have done something to create the hazard on the adjacent sidewalk. For instance, if an adjacent property owner modifies the downspout on their eaves trough causing water to flow to the sidewalk and freeze rather than running off to their sideyard, both the property owner and the Municipality could be liable. The property owner could be liable in negligence or nuisance for creating a dangerous condition that he or she knew or ought to have known could cause injuries to pedestrians using the sidewalk. The Municipality could be liable because it cannot shift its statutory duty to maintain the sidewalk onto the property owner but it must have been grossly negligent for liability to arise.
The Court on Appeal wrote in Brazzoni v Timmins, 1992 CarswellOnt 6427, that property owners have a duty to ensure that conditions on their property do not flow off the property and cause injury. In that case, the adjacent owner TD Bank allowed runoff from the melting snow to flow from its property onto the sidewalk and freeze. The Court of Appeal apportioned liability 50:50 as between TD Bank and the Municipality and reversed the trial judge’s finding that TD Bank was not liable:
…the trial judge found that water flowed from the respondent’s property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent, in our opinion, is liable.
The Court stated that liability could be based on nuisance or negligence. The Court of Appeal confirmed in Bongiardina v Vaughan (City), 2000 CanLII 5408 (ON CA), that the “flow exception” presented in Brazzoni was an exception to the general rule that a property owner is responsible only for his or her property. The “flow exception” is an intricate area of law where the private law duty of care owed by property owners overlaps with the statutory duty owed by Municipalities. Add in the gross negligence requirement for a finding of liability on a Municipality and the process of determining who is at fault becomes even murkier.
Needless to say that when someone is hurt after falling on an icy sidewalk, all of the circumstances leading to the buildup of ice must be examined. Whether the Municipality, an adjacent property owner or both bear some responsibility might depend entirely on where the water originated from.