Many local governments in B.C. have adopted bylaws that require property owners to clear snow and ice from the sidewalks adjacent to their properties. Questions have been raised whether the imposition of this responsibility in a bylaw also makes the property owner legally liable in negligence if a person were to be injured after slipping and falling on uncleared snow or ice on an adjacent sidewalk.
In Der v. Zhao, 2021 BCCA 82, the B.C. Court of Appeal recently conducted a thorough negligence analysis on this question and found that residential property owners do not owe a duty of care to pedestrians passing by on sidewalks adjacent to their properties that are owned by municipalities, even where a bylaw makes them responsible for snow and ice clearing. The Court found that the local government remains the “occupier” of the public sidewalk and that a breach of a bylaw requirement by the adjacent residential property owner does not give rise to the sufficient proximity required to establish a duty of care to persons passing on the sidewalk.
The Court left open the possibility that adjacent commercial property owners, in contrast to residential owners, can potentially have legal liability to persons that slip on snow or ice on adjacent sidewalks, but only where the commercial property owner has asserted control over the activities conducted on the sidewalk outside its building, or otherwise purported to control or regulate who might use the sidewalk. These unique circumstances often arise where the sidewalk immediately abuts a commercial building’s entranceway, and the property owner has asserted some form of control over that immediately connected portion of sidewalk.
Takeaway for Local Governments
Local governments may adopt bylaws that place exclusive responsibility for inspecting and maintaining sidewalks on adjacent property owners. However, these bylaws do not shift civil legal liability onto the private property owner in relation to slip-and-fall claimants that may be injured on the sidewalk due to the presence of uncleared snow and ice.
For sidewalks adjacent to residential properties, the local government remains the “occupier” of the sidewalk that faces legal liability to slip-and-fall claimants.
For sidewalks adjacent to commercial properties, the local government is also most likely to be found to be the “occupier” of such sidewalks except in special circumstances where a commercial property owner has exerted control over the activities conducted on that portion of sidewalk and who may access it.
With that said, these types of bylaws can still insulate local governments from civil legal liability by way of the “policy immunity defence”. B.C. courts have established that if a local government has adopted a bylaw that shifts all responsibility for inspection and maintenance of sidewalks onto adjacent property owners, and it has done so for good faith, rational policy reasons such as limited financial and staff resources, then the local government may remain the “occupier” of all public sidewalks while being held not liable to sidewalk slip-and-fall claimants.
The local government’s entire policy must, however, clearly establish that local government staff have no responsibility to inspect or maintain sidewalks adjacent to private properties. This includes the relevant bylaw, but also any further written or unwritten internal policies.
In Scheck v Parkdale Place Housing Society, 2019 BCSC 48, the B.C. Supreme Court found that the District of Summerland had, in good faith, adopted a bylaw placing exclusive responsibility for snow and ice sidewalk maintenance on adjacent property owners, but that the District had also created a policy manual stating that District staff would “inspect” all sidewalks daily for the presence of snow and ice. Because District staff had not conducted such inspections, the District was found to be liable to a slip-and-fall claimant who had fallen on snow and ice on a sidewalk adjacent to a private commercial property.
The District’s policy manual stated that winter sidewalk maintenance would only be conducted by District staff on sidewalks that were on the frontage of District properties, and not adjacent to private properties. However, the section of the policy manual referring to the requirement for staff to conduct daily inspections did not explicitly limit such inspections to sidewalks on the frontage of District properties. This left the policy open to the interpretation that the Court ultimately adopted.
Local governments should ensure that all of their policies and bylaws precisely match their own understanding of how they intend to operate. If they operate in accordance with a good faith, rational policy, then they can insulate themselves from civil legal liability via the policy immunity defence. However, if they fail to operate in a way that meets the letter of their policy, local governments put themselves at risk of an operational failure that will remove the protection of a policy immunity defence.