Beard Winter Defender – November 2024
by Damian Di Biase, Lawyer and Andrea Jasko, Student-at-Law
Overview
In Burley v. City of Ottawa et al, 2024 ONSC 5018, the Ontario Superior Court of Justice held that two Ottawa landlords did not owe a duty to their tenant to maintain the municipal sidewalk adjacent to their property. Accordingly, the Court granted a partial summary judgement for the dismissal of the tenant’s action against the landlords.
Facts
The defendants, John and Elaine Wright, owned an apartment building in Ottawa. The Plaintiff, Laura Burley, was a tenant in the building who slipped and fell on the municipal sidewalk while walking from the parking lot to the door of the building. Ms. Burley brought a claim against both the Wrights and the City of Ottawa. The Wrights and their snow clearing contractor were not responsible for maintaining the municipal sidewalk, nor did they choose to maintain the sidewalk anyways. In fact, the City of Ottawa admitted responsibility for maintenance of the municipal sidewalk in question. The sole issue on the motion was whether a partial summary judgement dismissing Ms. Burley’s action against the Wrights ought to be granted under Rule 20 of the Ontario Rules of Civil Procedure (the “Rules”)[1].
The Law on Summary Judgement Motions
Rule 20.04(2) of the Rules provides that the Court shall grant summary judgement if,
- the court is satisfied that there is no genuine issue requiring trial with respect to a claim or defence; or
- the parties agree to have all or part of the claim determined by a summary judgement and the court is satisfied that it is appropriate to grant summary judgement[2].
The moving party bears the evidentiary burden of proving that there is no genuine issue requiring a trial, which, if met, shifts the onus onto the responding party to prove that its claim or defence has a real chance of success.
Case law indicates that partial summary judgement is only appropriate in rare situations where an issue or issues can easily be bifurcated from those in the main action and dealt with in an expeditious and cost-effective manner[3].
No Genuine Issue Requiring a Trial
The Court’s decision turned on the following questions, all of which were answered in the negative:
- Did the Wrights owe Ms. Burley a common law duty to maintain the municipal sidewalk abutting the property?
- Were the Wrights occupiers of the municipal sidewalk under the Occupiers’ Liability Act[4]?
- Did the Wrights have a common law duty to warn Ms. Burley about the condition of the municipal sidewalk?
- Did the Wrights owe Ms. Burley a contractual duty to either provide access to the parking lot from the rear of the building or maintain the municipal sidewalk?
The Court held that partial summary judgement was an appropriate remedy because the issue could easily be bifurcated from Ms. Burley’s claim against the City of Ottawa, given that none of the questions were tied to the claim against the City. Furthermore, the Court determined that there was no genuine issue requiring a trial as it had the necessary evidentiary record to reach a fair and just determination of the claim against the Wrights.
Common Law Duty of Care
Both parties agreed that the owner of a property does not have a common law duty to clear snow and ice from public sidewalks adjacent to the property, as was affirmed in Bongiardina v. Vaughan (City), 2000 CanLII 5408 (ON CA)[5]. Rather, a municipality bears this responsibility[6].
Occupier’s Liability Act
The Court referred to MacKay v. Starbucks Corporation, 2017 ONCA 350, which affirmed that a property owner is generally not an “occupier” of an adjacent municipal sidewalk and is thus not responsible for the sidewalk’s maintenance under the Occupier’s Liability Act (the “Act”)[7]. However, there are two exceptions. First, a property owner may be an “occupier” of a sidewalk under the Act if they have assumed control over the sidewalk or if there are special circumstances that apply[8]. Second, a property owner’s duty of care includes ensuring that conditions or activities on their property do not leave the property and cause injury to others nearby[9].
The Court held that neither of these exceptions applied here. The Wrights and their contractors did not assume responsibility and control over the sidewalk by maintaining it and there were no special circumstances as the sidewalk was ordinarily used by all members of the public, including tenants of the building. Furthermore, the Wrights did not permit conditions on their property to flow onto the adjacent municipal sidewalk.
Common Law Duty to Warn
The Court found that there were no special circumstances, such as weather conditions, on the day of the fall creating an unreasonable or unusual risk that would have given rise to a duty on the Wrights to warn their tenants that the municipal sidewalk could be icy or slippery.
Implied Contractual Duty
While Ms. Burley argued that her lease agreement created an implied contractual duty on the Wrights to provide her with a reasonably safe passage from the building to the parking lot, the Court held that no such duty existed. Ms. Burley was given a parking spot that was properly maintained by the Wrights and accessible from the municipal sidewalk, and she had a safe means of leaving the building through the front door. Thus, the lease was effective without implying additional contractual terms.
Conclusion
Burley highlights the considerations that are central to determining whether a landlord may owe a duty to their tenant to maintain a municipal sidewalk adjacent to their property. This decision is also an interesting example of a rare situation in which a partial summary judgement was granted.
[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.
[2] Ibid at r. 20.04(2).
[3] Burley v. City of Ottawa et al, 2024 ONSC 5018 at para 18.
[4] Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
[5] Bongiardina v. Vaughan (City), 2000 CanLII 5408 (ON CA) at para 19 [Bongiardina].
[6] Ibid.
[7] MacKay v. Starbucks Corporation, 2017 ONCA 350 at paras 16-17 [MacKay].
[8] Ibid at para 17; Bongiardina, supra note 5 at para 20.
[9] Bongiardina, supra note 5 at para 21.