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BC Supreme Court – Property Owners Under No Legal Duty To Clear Ice From Sidewalks

Reasons for judgment were published this week by the BC Supreme Court, Rossland Registry, dismissing a slip and fall lawsuit against a property owner on the basis that they have no duty to clear ice and snow from sidewalks outside their property.

In today’s case (Scheck v. Parkdale Place Housing Society) the Plaintiff slipped and fell on a public sidewalk which separated Angus Street in Summerland, BC from a senior’s housing facility operated by the defendant Parkdale Place Housing Society.

The Plaintiff sued both the City of Summerland and the Housing Society who owned the business adjacent to the sidewalk.  In dismissing the claim against the Society the Court concluded there is not common law duty for property owners to clear municipal sidewalks running adjacent to their property.  In reaching this decision Mr. Justice Johnson provided the following reasons:

[45]         As to whether Parkdale owed a duty at common law, I accept the reasoning of the Ontario Court of Appeal in Bongiardina at para. 19:

The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be “No”. Although the “neighbour” principle from Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.

[46]         I do so with some reluctance as this seems contrary to the prior decision of this court in Reidy v. Kamloops Hotel Ltd. (1997), 41 B.C.L.R. (3d) 338 (S.C.). There, a plaintiff fell on an icy municipal sidewalk outside the defendant hotel. The court found that the hotel was not an occupier of the sidewalk at para. 6, then went on to consider whether the hotel was liable at common law. In concluding that the hotel was liable to the pedestrian, the court applied the “unusual danger” test from Indermaur v. Dames (1866), L.R. 1 C.P. 274 (Eng. C.P.), and referred to the Supreme Court of Canada decision in Campbell v. Royal Bank (1963), [1964] S.C.R. 85, 43 D.L.R. (2d) 341, which considered a test to determine if an unusual danger existed.

[47]         What the court in Reidy did not refer to, as it was apparently not cited, were the decisions in Weiss and Tutinka. With respect, it seems to me that the decision in Reidy was per incuriamas a result of not having the advantage of those two decisions, and should not be followed.

[48]         I am able to determine the question put by Parkdale’s application, as it does not depend on the condition of the sidewalk. I conclude that Parkdale owed no duty to Ms. Scheck with respect to Summerland’s sidewalk and dismiss her claims against Parkdale.

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