Responsibility for clearing snow, ice a complex legal issue

Responsibility for clearing snow, ice a complex legal issue

December 31, 2007

Winter’s grip brings more than just snow and ice — it also brings potential legal liability from slip and fall claims, says Toronto litigator Stefan Rosenbaum.

The key question is whether an owner is responsible for maintaining the sidewalk in front of their property or whether that falls to the municipality, says Rosenbaum, an associate with Shibley Righton LLP.

The answers are more complex than they initially appear, he tells AdvocateDaily.com.

“If the city owns the sidewalk, the homeowner is bound by municipal bylaws to clear them within a specified period of time, which varies from jurisdiction to jurisdiction. A bylaw officer can issue a ticket with a fine if they don’t comply,” explains Rosenbaum.

While some landlords try to get around that liability by inserting a clause into a lease pushing the responsibility onto the tenants, there’s jurisprudence that even if a tenant agrees to clear snow, it remains the owner’s ultimate responsibility, says a report in the Toronto Star.

But that’s the least of their worries, says Rosenbaum. The bigger issue is the legal liability when someone slips and falls on a public sidewalk and sues either the city or the person occupying the adjacent home.

“Generally, the municipality will try to shift the liability back onto whoever was responsible for the property,” says Rosenbaum, who acts for municipalities such as the City of Toronto.

It’s complex because the legal issues also turn on the Ontario Occupiers Liability Act, which says someone “occupying” public property under the definitions in the legislation is also liable for any claims flowing from an event on that property.

Therefore, says Rosenbaum, a business with a sandwich board on the sidewalk would be deemed to be an “occupier” of the public property and liable if someone slipped and fell because they didn’t clear the snow and ice.

For homeowners, it’s not just a matter of who should shovel the sidewalk outside a home, because the hazards of snow and ice don’t just flow from accumulation, says Rosenbaum.

“For example, homeowners are disconnecting their downspouts and letting them drain onto the sidewalk where the run-off freezes over,” he says, noting the city’s argument in a personal injury claim would be that they didn’t cause the hazard, the property owner did.

Allowing snowmelt to run down to the sidewalk and freeze is also a homeowner issue, Rosenbaum says, as the big legal question becomes who is responsible for the hazard — did the municipality react to slowly to clear the sidewalk or did the property owner create a hazard through negligence?

“Sometimes people shovel snow and pile it on their own property,” he says. “In some cases, the pile may be on a higher plane than the sidewalk, and the snowmelt runs down and then freezes.”

While a municipality can levy fines, they cannot legally pass on the liability for not clearing the walkways, says Rosenbaum. So it goes back to the question of who created the hazard?

The Ontario Court of Appeal (OCA) ruled in 2000 that municipalities can’t just fob off their responsibility to clear sidewalks to homeowners by decree. According to the decision, a woman sued the City of Vaughan after she slipped and injured herself on a snow-covered sidewalk. The city claimed its bylaw pushed the onus onto to the homeowner, whom it sued.

In court, the homeowners said they weren’t liable for the city’s failing, and the judge agreed. The city unsuccessfully appealed.

In Toronto, the city requires homeowners to clear snow within 72 hours of the snowfall ending and those who don’t could face $125 fines. There is also a myriad of other rules, according to the Toronto Star.

Rosenbaum says anyone coming onto private property, which is unsafe because snow and ice haven’t been dealt with, could have a potential lawsuit if they slip and fall. That includes Canada Post workers, couriers and even those putting flyers in the mailbox.

When it comes to streets, sidewalks and laneways, which are public property, it gets complicated, he says.

Toronto doesn’t plow all streets equally, and it’s those narrow ones — which are often congested with street parking, like in Cabbagetown — where homeowners are on the hook for clearing snow from the sidewalks.

In other areas, main roads, streets and sidewalks have different levels of service, with some laneways also getting cleared because of a 2011 court ruling, reports the Toronto Star.