In our recent blog post, we discussed the rights and responsibilities of individual homeowners when accidents happen on an icy sidewalk. What about commercial property owners? Do they have different obligations and rights?
In a recent case, Der v. Zhao, 2021 BCCA 82, the BC Court of Appeal commented that it may be easier to find that commercial property owners owe a duty of care to members of the public walking on sidewalks near their properties versus individual homeowners. The Court wrote:
"... These [commercial property] owners invite the public to access their hotels, cafés, or other businesses, which requires use of the public sidewalks immediately adjacent to [the] entrance to their business. In these circumstances, it is not surprising that courts have been more willing to find that commercial owners become occupiers of those common areas, or that they otherwise owe a duty of care to pedestrians using public sidewalks at the threshold of their doorway."
An example of a case where a business owner was found liable was the 2017 Ontario Court of Appeal decision in MacKay v. Starbucks Corporation, 2017 ONCA 350. The plaintiff slipped and fell on an ice-covered sidewalk at the entrance to a patio in front of a Starbucks. Starbucks had exclusive use of the patio area and effectively directed all customers to use the portion of sidewalk by the patio to enter the store.
The trial judge found that Starbucks had sufficient responsibility and control over that portion of the sidewalk to be considered an "occupier" – this was upheld by the Court of Appeal. The Court held that there is no general rule that applies to such situations, but where a significant number of customers almost exclusively use an area of sidewalk to enter/exit a store, this will weigh in favour of finding the store owner to be an occupier and therefore, liable for accidents that occur in that area.
Commercial property owners may also be found liable for slips and falls that occur on the small area of sidewalk directly in front of their entrance. This may be extended if the property owner assumes responsibility and control over a portion of sidewalk, such as by effectively creating a pathway leading to their business or otherwise directing customers to walk on a certain path. This is more likely to apply to businesses such as restaurants, stores, and hotels.
The above discussion illustrates that it is generally difficult to succeed in a claim for a slip and fall on an icy sidewalk. However, there are exceptions and special circumstances that may result in liability against property owners or municipalities. The legal considerations can be complex, which is why it is important to seek legal advice regarding your rights and responsibilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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