This article was originally published on The Lawyer’s Daily on May 8, 2017 by Christopher Guly
Commercial establishments that rely on a portion of municipal property to welcome customers should take note of an Ontario Court of Appeal decision released last week.
In MacKay v. Starbucks Corporation 2017 ONCA 350, the court unanimously upheld a lower-court ruling that found the Toronto coffeehouse outlet was responsible, under Ontario’s Occupiers’ Liability Act (OLA), for a portion of the ice-covered municipal sidewalk at its side entrance where respondent Carole MacKay fell and broke her ankle in February 2007.
In her 2015 decision, Ontario Superior Court Justice Mary Sanderson found that by taking such measures as making a path over the sidewalk leading directly to the side door, which almost exclusively Starbucks customers used, as well as clearing, salting and sanding it to ensure it was safe for customers, the coffeehouse “assumed sufficient control over the sidewalk and the persons it allowed to enter its premises using [it],” to fall within the definition of “occupier” under s. 1 of the OLA.
The appellate court agreed.
In her written reasons, agreed to by Justices John Laskin and William Hourigan, Justice Kathryn Feldman said the purpose and public policy objectives of the OLA “is to impose liability on those who, by their conduct, assume control over and responsibility for a portion of the immediately adjacent sidewalk and the safety of those who use it.”
Toronto insurance defence lawyer Bruno Roti, who represented Starbucks in the appeal, argued that the trial judge undermined the principle from Bongiardina v. York (Regional Municipality)  O.J. No. 2751 in which the Ontario Court of Appeal held that sanding and salting a municipal sidewalk won’t make an adjacent landowner or tenant civilly liable to someone who slips and falls on the sidewalk, despite the existence of a municipal bylaw requiring it.
However in MacKay, the appeal court said that Bongiardina states that a property owner or tenant is not considered an occupier of an adjacent sidewalk “merely by clearing that sidewalk of snow and ice” and that “more will be needed to meet the definition.” (When asked to comment on the decision, Roti directed The Lawyer’s Daily to Starbucks, which did not respond to an interview request.)
The appellate court also rejected the appellant’s warning that Justice Sanderson’s decision could shift responsibility for accidents resulting from snow and ice on sidewalk entrances from municipalities to adjacent storefront owners and occupiers.
Determining occupier status “requires a case-by-case factual analysis,” Justice Feldman wrote. “There is no blanket rule.”
However at trial, the jury found that Starbucks also breached its common law duty of care as an occupier of the sidewalk.
Although that finding was not part of the appeal, the appellate court held that under s. 2 of the OLA, “there is no general common law duty of care, based on proximity principles, owed by an adjacent property owner or tenant in respect of sidewalks that abut that person’s property.”
As Justice Feldman wrote: “The only duty is the statutory duty that is owed by a person who meets the definition of occupier under the act.” OLA s. 2 “replaces the previous common law rules that determined the nature of the duty of care owed by an occupier of premises … to visitors,” the appeal court said, “with one single duty of care.”