The Court of Appeal released a decision in May 2017 addressing a 2015 trial decision called MacKay v. Starbucks Corporation. There was a slip-and-fall on the municipal sidewalk in front of the patio of a Starbucks in Toronto. The trial judge found that Starbucks owed the Plaintiff a duty of care under the Occupiers’ Liability Act (the “Act”), and a jury found that Starbucks had breached that duty.
The patio was enclosed by a fence with an opening for customers entering from the street. It was found as fact that most users of the sidewalk in the morning were Starbucks customers. Starbucks created a pathway used almost exclusively by their customers (for a commercial benefit) that ran from the sidewalk to its side-entrance. Starbucks employees were instructed to salt the sidewalk and keep a clear pathway in the area just in front of the patio entrance. It was found that Starbucks assumed sufficient control and possession of this patch of sidewalk, such that they were deemed an “occupier” under the Act.
The core of the appeal was whether the trial judge erred in determining that Starbucks was an “occupier”. Justice Feldman, writing for the Court, upheld the trial judge, finding the decision to be entirely consistent with long-standing jurisprudence.
The Ontario Court of Appeal in Bongiardina v. York (Regional Municipality), held that as a general rule, a landowner will not be held liable for personal injury on a municipal sidewalk. A by-law imposing an obligation on a landowner to remove snow and ice from a sidewalk does not automatically create civil liability. There are two exceptions: (1) where an owner has taken steps to assume control of that property (and is deemed to be an “occupier” under the Act); or (2) where activities on the property have flowed onto the sidewalk and caused injuries.
Justice Feldman canvasses several lower-court decisions that apply the first exception and finds parallels to the facts in Starbucks. In Bogoroch v. Toronto (City), the Ontario Superior Court of Justice found that a Kitchen Table grocery store was an “occupier” because it used the entire width of the sidewalk outside its store to “aggressively market” its commercial wares. In Moody v. Toronto, the Ontario Superior Court of Justice found the Skydome to be an “occupier” of its adjacent sidewalk because of the near-exclusive use of that sidewalk by its patrons, and the lack of alternative walkways.
The common thread of these cases (including Starbucks) is the use of a sidewalk to further a commercial objective in combination with a high-concentration of patrons using the sidewalk to the virtual exclusion of others.
This decision raises the concern that civil liability will be shifted from a municipality onto a host of commercial owners adjacent to sidewalks across the province. By statute, the City of Toronto is insulated from liability arising from personal injury on sidewalks unless their conduct is deemed to be “grossly negligent”. Because there is potentially no redress for an injured person in such circumstances, it is possible there is a policy concern guiding this decision that will have the consequence of opening the floodgates to viable claims against commercial owners.
Justice Feldman allays these concerns by reiterating that commercial owners’ mere adjacency to a municipal sidewalk, and the corresponding obligation to remove snow and ice, will not be sufficient to trigger liability; there needs to be “much more”. It is a case-by-case analysis that looks at active steps the owner took to assume the requisite degree of possession and control. In this case, the creation of the pathway to the patio for commercial ends, the near-exclusive use of the sidewalk by Starbucks customers in the morning, and the maintenance of the sidewalk were all indicia of control.
Starbucks also clarifies that section 2 of the Occupiers Liability Act codified the general duty of care owed by a property owner. The only established recourse a Plaintiff (who is injured on a municipal sidewalk) has against an owner are the two Bongiardina exceptions. However, Justice Feldman leaves open the possibility that a specific common law duty to warn of unreasonable risks potentially exists. Deciding that question is to be saved for another day.