



COURT OF APPEAL FOR ONTARIO

CITATION: MacKay v. Starbucks Corporation, 2017 ONCA 350

DATE: 20170502

DOCKET: C60621

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Carole MacKay

Plaintiff (Respondent)

and

Starbucks Corporation
, City of Toronto,

K.J.
    Beamish Construction Co. Limited, and

Queen
    Hammersmith Holdings Inc.

Defendants (
Appellant
)

Bruno Roti, for the appellant

Murray Tkatch and Barbara K. Opalinski, for the
    respondent

Heard: September 8, 2016

On appeal from the judgment of Justice Mary A. Sanderson of
    the Superior Court of Justice, sitting with a jury, dated January 18, 2016,
    with reasons on the relevant ruling reported at 2015 ONSC 4718, 58 R.P.R. (5th)
    310.

Feldman J.A.:

[1]

Following a trial by judge and jury, the jury found that the place where
    the respondent fell was on an ice-covered municipal sidewalk at the entrance to
    a patio in front of Starbucks. In a ruling before the case went to the jury, the
    trial judge held that Starbucks was an occupier of that part of the sidewalk
    and therefore owed the respondent a duty of care. The jury found that Starbucks
    breached its duty of care as an occupier of the sidewalk.

[2]

The trial judges finding that Starbucks was an occupier of that
    portion of the sidewalk, within the meaning of the
Occupiers Liability Act
,
    R.S.O. 1990, c. O.2 (the Act), was a ruling of mixed fact and law. This is an
    appeal of that ruling.

Facts

[3]

The Starbucks location where the fall occurred is in Toronto, at the
    corner of Queen Street and Hammersmith Avenue, part of a small retail mall
    where Starbucks is a tenant. As part of its lease, Starbucks has an outdoor
    patio that abuts the municipal sidewalk along Hammersmith. The patio is
    enclosed by a fence that includes a 3-4 foot opening, the effect of which, the
    trial judge found, seamlessly joins the patio and the sidewalk.

[4]

The trial judge accepted the evidence of a number of witnesses that the
    patio was not a common element of the shopping centre complex and that
    Starbucks had exclusive use of the patio. Starbucks also maintained the patio,
    including the area leading into the patio from the sidewalk, where the
    respondent fell.

[5]

In particular, the evidence from the Starbucks shift manager was that
    Starbucks personnel were given a shovel and salt and instructed to salt and
    sand not only the patio area, but also to clear, salt and sand a pathway a
    couple of feet wide, wide enough for walking, in an area that included the
    first steps off the patio, the area of the sidewalk where the Starbucks fence
    opened on to the municipal sidewalk. They were instructed to ensure the safety
    of the customers with a clear passageway to the Hammersmith entrance to the
    store that is accessed through the patio.

[6]

Another Starbucks witness who bought his coffee at the location almost
    every morning for several years, said that the sidewalk was like a passage or
    corridor, and that it was necessary to walk across it to get inside. He
    testified that in the mornings the Hammersmith entrance was busier than the Queen
    Street entrance, and that users of the sidewalk in that area were mostly
    Starbucks customers. His view was that anyone coming through the opening in the
    patio fence would expect Starbucks to make the area safe for its customers.

[7]

Based on this evidence, the trial judge made a number of findings:

·

Starbucks
    expected that in the mornings, many customers would drive to Hammersmith, park,
    cross over the sidewalk, enter the store through the patio and exit using the
    same path.

·

By
    constructing the patio and fence opening as it did, for its commercial benefit,
    Starbucks created a pathway from its side door through the patio and out over
    the sidewalk, which it knew was used by many of its customers and only by its
    customers.

·

The
    respondent and other Starbucks customers only used the sidewalk to access
    Starbucks from Hammersmith and would not have been there otherwise.

·

The
    use of the sidewalk that Starbucks created was unrelated to other uses of the
    sidewalk in the ordinary course.

·

By
    its actions, Starbucks effectively directed all of its customers entering and
    exiting its store on the Hammersmith side to use that area of the sidewalk. It
    effectively controlled their access route and ensured that they would walk on
    the pathway it had designated, including on that portion of the sidewalk.

·

Based
    on the evidence of the Starbucks customer witness that the trial judge
    specifically accepted, she concluded that, in the mornings, customers parking
    on Hammersmith to access Starbucks through the patio entrance constituted most
    of the users of the sidewalk in that area, and that the customers had almost
    exclusive use of the sidewalk in that area.

·

Starbucks
    took upon itself sufficient possession and control of the area of the sidewalk
    adjacent to the fence opening to allow it to ensure the safety of its customers
    using that area to come into and out of its store.

Conclusion of the trial judge

[8]

Based on her factual findings, the trial judge concluded, as a matter of
    law, that Starbucks was an occupier, within the meaning of the Act, of the
    space on the sidewalk adjoining the patio entrance. I quote her finding, which
    fully explains her conclusion:

In summary, by building its fence and patio in the manner that it
    did, by making a path over the sidewalk leading directly to its side door, by
    monitoring the condition of the pathway, by clearing, salting and sanding it to
    be sure it was safe for its customers, and by directing the ingress and egress
    of its customers in the manner that it did, Starbucks assumed sufficient
    control over the sidewalk and the persons it allowed to enter its premises
    using the sidewalk, to come within the definition of Occupier under s. 1 of the
Occupiers Liability Act
.

Issues

[9]

This appeal raises two issues:

(1) Did the trial judge err in her conclusion that Starbucks
    was an occupier, within the meaning of the Act, of the area of the sidewalk
    leading to its patio, where the respondent slipped and fell?

(2) If that finding was in error, did Starbucks nevertheless
    owe a common law duty of care to the respondent?

Analysis

[10]

Since it came into force on September 8, 1980, the
Occupiers
    Liability Act
has governed the duty of care owed by an occupier of premises
    to anyone who enters those premises. The legislation was enacted following the
    1972 Report of the Ontario Law Reform Commission, which recommended that the
    common law duty of care owed by occupiers, which mandated a standard of care
    that was more or less stringent depending on why the injured person was on the
    property (invitee, licensee or trespasser), should be replaced with one generalized
    statutory duty.

[11]

Section 2 of the Act replaces the common law duty of care with a single statutory
    duty:

2.
Subject to section 9, this Act applies in place of the rules of the
    common law that determine the care that the occupier of premises at common law
    is required to show for the purpose of determining the occupiers liability in
    law in respect of dangers to persons entering on the premises or the property
    brought on the premises by those persons.

[12]

Section 3 of the Act prescribes the duty of care that is owed by an
    occupier of premises to persons entering onto the premises to see that they are
    reasonably safe:

3. (1) An occupier of premises owes a duty to take such care as
    in all the circumstances of the case is reasonable to see that persons entering
    on the premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises.

[13]

Occupier is defined inclusively in s. 1 as follows:

occupier includes,

(a) a person who is in physical possession of
    premises, or

(b) a person who has responsibility for and control
    over the condition of premises or the activities there carried on, or control
    over persons allowed to enter the premises,

despite the fact that there is more than one occupier
    of the same premises.

[14]

As the definition makes clear, there can be more than one occupier of
    the same premises. This includes municipal sidewalks:

Bongiardina v.
    York (Regional Municipality)
(2000), 49 O.R. (3d) 641 (C.A.), at para. 20
.

[15]

Because the municipality owns the sidewalk, it has the primary
    responsibility for its condition and owes a duty of care to persons who use the
    sidewalk. The municipality is not, however, liable for personal injuries caused
    by snow or ice on a sidewalk except in cases of gross negligence:
Municipal
    Act
, S.O. 2001, c. 25, s. 44(9). This gross negligence standard takes
    account of the fact that it takes time for the municipality to clear every
    sidewalk in a city following a snowfall or other inclement weather.

[16]

Although occupiers of both residential and commercial properties are
    often subject to municipal by-laws that obligate them to clear the ice and snow
    on public sidewalks that surround their property, that obligation is not
    sufficient to make them occupiers of the sidewalk within the meaning of the
    Act:
Bongiardina
, at para. 29;
Slumski v. Mutual Life Assurance
    Co. of Canada
, [1994] O.J. No. 301 (Div. Ct.), at para. 5.

[17]

In order to be an occupier of the sidewalk within the meaning of the Act,
    the occupier of the adjacent premises must have taken steps to come within
    clause (a) or (b) of the definition,

by sharing sufficient possession or
    control with the municipality. That is what occurred in two often-referred to
    cases,
Bogoroch v. Toronto (City)
, [1991] O.J. No. 1032 (C.J. (Gen.
    Div.)) and
Moody v. Toronto (City) (1996)
, 31 O.R. (3d) 53 (C.J. (Gen.
    Div.)).

[18]

The facts in
Bogoroch
bear a number of similarities to this
    case.  The plaintiff slipped and fell on an ice patch on the sidewalk in front
    of the defendants Kitchen Table store on Spadina Road, and suffered a broken
    ankle. The City of Toronto had issued a permit to Kitchen Table to use a
    portion of the sidewalk in front of the store, constituting about 25 percent of
    the sidewalk, to sell and display its goods. The trial judge first found that
    Kitchen Table was in physical possession of the portion of the sidewalk covered
    by the permit. However, that was not where the plaintiff fell. He fell on the
    sidewalk in front of the goods on display.

[19]

On the issue whether Kitchen Table was an occupier of that area, the
    trial judge accepted the plaintiffs submission that Kitchen Table intended to
    and did use the entire sidewalk, not just the portion granted by the permit, to
    sell and display its goods throughout the year, and that the rest of the
    sidewalk became virtually an aisle of the store  from which both the general public
    and its customers could view and buy its goods. He found that through its
    policy of aggressive marketing, the defendant used the entire sidewalk to
    further its commercial objectives, and was therefore an occupier of the entire
    sidewalk in front of its store, within the meaning of what is now clause (a) of
    the definition.

[20]

Moody
also involved a slip and fall on a sidewalk. The accident
    occurred outside the Rogers Centre (then called the Skydome) at 10:15 p.m. when
    the plaintiff was leaving a Blue Jays game. The plaintiff fell on part of the
    road allowance for Blue Jays Way owned by the City of Toronto. The plaintiff
    tripped over the raised edge of a concrete slab. The plaintiff did not see the protruding
    concrete edge because he was walking in a large crowd at the time and had to
    keep his head up.

[21]

The plaintiff sued both the City and the Skydome. The Skydome moved for
    summary judgment on the basis that it was not an occupier within the meaning of
    the Act. The motion judge dismissed the motion. He found that the evidence
    could support a finding of control by the Skydome over the patrons using the
    walkway, and thus could support a finding that the Skydome was an occupier of
    the premises within the meaning of clause (b) of the definition.

[22]

The evidence showed that: i) the walkway was used almost exclusively by
    Skydome patrons; ii) a significant number of Skydome patrons had no alternative
    but to use the walkway; and iii) the number of patrons using the sidewalk
    before and after each game created a crush of activity that made it impossible
    for a patron to watch for hazards on the walkway.

[23]

The motion judge in
Moody
also addressed the concern that the
    result in the case could represent an extension of liability beyond the old common
    law of occupiers liability and the policy that had informed it. He referenced
    two cases decided before the enactment of the
Occupiers Liability Act
,
    where the courts imposed a duty of care on property owners who invited a person
    to use the sidewalk in front of their properties and the person suffered injury
    as a result:
Driscoll v. Breslin et al.
, [1954] O.R. 913 (C.A.), affd
    [1956] S.C.R. 64 and
Snitzer v. Becker Milks Co. Ltd. et al.
(1976), 15
    O.R. (2d) 345 (H.C.). The motion judge did not cite these cases to suggest that
    the common law of occupiers liability continues to apply. He cited them simply
    to demonstrate that imposing liability in a case like the one before him would
    not represent a novel departure or be contrary to public policy.

Did the trial judge err in concluding that Starbucks was an
    occupier within the meaning of the Act?

[24]

The trial judge found that Starbucks had the requisite responsibility
    and exerted the requisite amount of control over the sidewalk entrance to its
    patio and over its customers who used that area to access its store to be an
    occupier within the meaning of the Act.

[25]

The portion of the municipal sidewalk at issue is displayed in trial
    exhibit 7. That exhibit shows an area of the sidewalk extending from the opening
    of the Starbucks patio to the sidewalk curb. While the trial judge held that Starbucks
    was an occupier of the entire area shown in exhibit 7, in my view, the trial
    judges conclusion and jurys verdict can be upheld on a narrower basis.

[26]

It was open to the trial judge to conclude that Starbucks was an
    occupier, within the meaning of the Act, of the portion of the municipal sidewalk
    at the threshold of its patio entrance. In light of the available evidence, the
    jury must have found that that was where the respondent fell.

[27]

The jury found that the respondent did not fall on the patio, but on the
    sidewalk occupied by Starbucks. The only evidence to support the latter finding
    was the respondents. The respondents evidence was that she either fell within
    or immediately outside the Starbucks patio. Two eye-witnesses, a married
    couple, testified that they saw the respondent fall off the sidewalk curb or
    even on the roadway. One of those eye-witnesses marked, on trial exhibit 4,
    where she believed the respondent fell. The spot she identified is outside the
    portion of the sidewalk that the trial judge determined was occupied by
    Starbucks as shown in exhibit 7.

[28]

Given that the jury found that the respondent fell within the portion of
    the sidewalk occupied by Starbucks, it must have rejected the married couples eye-witness
    account and accepted the respondents evidence that, if she did not fall within
    the patio, she fell immediately outside it.

[29]

It is the appellants submission, however, that it should be not be held
    liable as an occupier for accidents that occurred anywhere beyond the strict
    limits of its patio. It makes this argument on two grounds. First, the
    appellant argues that the trial judges finding undermines the principle from
Bongiardina
that sanding and salting a municipal sidewalk will not make an adjacent
    landowner or tenant civilly liable to a person who slips and falls on that
    sidewalk.

[30]

I disagree. In
Bongiardina
, the court framed the issue in terms
    of whether there was a common law duty on a property owner, in that case a
    residential homeowner, to clear sidewalks adjacent to the property. The court
    found no such duty. The court explained that clearing snow and ice from
    sidewalks and fixing potholes is the legal responsibility of the municipality,
    not the homeowner, subject to two exceptions: 1) if the homeowner is deemed to
    be an occupier of the sidewalk under the Act by assuming control of it, such as
    occurred in
Bogoroch
and
Moody
; or 2) if the homeowner allows
    something from his or her property, such as water, to flow off it and onto the
    sidewalk causing injury to persons.

[31]

Bongiardina
, therefore, simply reiterates that a property owner
    or tenant will not be deemed by the Act to be an occupier of an adjacent
    sidewalk merely by clearing that sidewalk of snow and ice, whether in
    compliance with a municipal by-law obligation or otherwise. More will be needed
    to meet the definition and impose civil liability. This principle has been
    stated in a number of cases, both before and after
Bongiardina
:
Slumski
    v. Mutual Life Assurance Co. of Canada
, [1994] O.J. No. 301 (Div. Ct.);
Bondy
    v. London (City)
, [2013] O.J. No. 1281 (S.C.), affd 2014 ONCA 291;
Mark
    v. Bhangari
, 2010 ONSC 4011;
Levy v. Brampton (City)
(2005), 12
    M.P.L.R. (4th) 18 (S.C.);
Graham v. 7-Eleven Canada Inc.
, [2003] O.J.
    No. 544 (S.C.);
Peterson v. Windsor (City)

(2006), 27 M.P.L.R.
    (4th) 129 (S.C.);
Coulson v. Hamilton (City)
(2008), 53 M.P.L.R. (4th)
    251 (S.C.);
Baker v. Perth East (Township)
(2009), 58 M.P.L.R. (4th)
    51 (S.C.);
Gribowski v. Singh
, 2013 ONSC 744, 9 M.P.L.R. (5th) 286;
Campana
    v. Mississauga (City)
, 2016 ONSC 3421, 55 M.P.L.R. (5th) 326.

[32]

The trial judges finding that Starbucks was an occupier of the sidewalk
    was not based simply on its efforts to clear snow and ice from the sidewalk at
    the entrance to its patio. Her ruling rested expressly on the combined effect
    of her factual findings, set out in para. 7, and her application of the Act and
    the case law to those findings. Her ruling, therefore, is in no way
    inconsistent with
Bongiardina
.

[33]

The appellant next argues that Starbucks did no more than any storefront
    owner or tenant who has customers that enter the store from the sidewalk. The
    appellant raises the spectre that this ruling therefore improperly shifts the
    responsibility for accidents resulting from snow and ice on sidewalk entrances
    back from the municipality to storefront owners and occupiers.

[34]

I would reject this submission on three bases. First, to the extent that
    the appellant is challenging findings of fact made by the trial judge, I see no
    basis to interfere. The appellant has identified no palpable and overriding
    error in the trial judges assessment of the evidence.

[35]

Second, the analysis by the trial judge shows that the determination of
    occupier status requires a case-by-case factual analysis and an application of
    those facts to the definition of occupier in the Act. There is no blanket rule.

[36]

Having said that, the factors established by the case law will tend to
    have the effect of making some storeowners rather than homeowners liable as
    occupiers of portions of sidewalks

immediately adjacent to their store. The
    volume of customers that use the sidewalk immediately adjacent to the entrance
    to enter and exit a particular store, to the virtual exclusion of others, has
    been a factor in a number of cases, including
Bogoroch
and
Moody
,
    and applies very specifically on the facts of this case.

[37]

On the other hand, where circumstances dictate, storeowners will not be found
    to be occupiers of the sidewalks at the thresholds of their store entrances:
    e.g.
Kreska v. Toronto (City)
(2000), 13 M.P.L.R. (3d) 53 (S.C.);
Graham
    v. 7 Eleven Canada Inc.
, [2003] O.J. No. 544 (S.C.);
Baker v. Perth
    East (Township)
(2009), 58 M.P.L.R. (4th) 51 (S.C.). For example, in
Graham
    v. 7 Eleven
, the trial judge focused on the factors from the case law,
    noting that there was no evidence that the sidewalk in front of the 7-Eleven
    was used almost exclusively by patrons of the convenience store or that
    patrons use made it more difficult to see hazards on the sidewalk.

[38]

The third reason I would reject the appellants submission is that, to
    the extent that storefront owners and occupiers have been found to be, in
    effect, joint occupiers with the municipality of portions of the sidewalk
    immediately adjacent to their stores that their customers use, such findings
    are consistent with the purpose and public policy objectives of the Act. That
    purpose and policy is to impose liability on those who, by their conduct, assume
    control over and responsibility for a portion of the immediately adjacent sidewalk
    and the safety of those who use it. That conduct must, as in this case, amount
    to much more than merely clearing adjacent public sidewalks of snow and ice,
    whether in compliance with municipal by-laws or otherwise.

[39]

In my view, therefore, while exhibit 7 was drawn too broadly, it was
    open to the trial judge to conclude that Starbucks was an occupier within the
    meaning of the Act of the portion of the municipal sidewalk at the threshold of
    its patio entrance where the jury must have found that the respondent actually
    fell.

Does Starbucks owe a common law duty of care to the respondent?

[40]

The respondent argued, in the alternative, that if the appellant were
    not found to be an occupier within the meaning of the Act, it should
    nevertheless be found negligent based on a breach of a common law duty of care that
    continues to exist together with the statutory duty.

[41]

The section of the Act that addresses this issue directly is s. 2, which
    I quote again here for ease of reference:

2
.
Subject to section
    9, this Act applies in place of the rules of the common law that determine the
    care that the occupier of premises at common law is required to show for the
    purpose of determining the occupiers liability in law in respect of dangers to
    persons entering on the premises or the property brought on the premises by
    those persons.

[42]

As stated above, the section states that it replaces the previous common
    law rules that determined the nature of the duty of care owed by an occupier of
    premises to different sorts of visitors to the premises with one single duty of
    care. That duty is to make the premises reasonably safe, and it is owed by an
    occupier of the premises to anyone who enters the premises. The work of the
    definition of occupier is to determine the extent of the premises for which the
    occupier has the statutory duty of care.

[43]

However, where a person is found not to be an occupier of the sidewalk
    adjacent to the persons premises, were there other common law duties of care
    owed by an adjacent property owner to persons on the adjacent sidewalk that
    existed before the enactment of the Act, and if so, have those duties of care been
    abolished?

[44]

It appears to me that the question has already been answered, at least
    in part, by this court in
Bongiardina
. There the court identified
    three possible duties that an owner of premises adjacent to a municipal
    sidewalk could owe to someone injured on that sidewalk. The first was a common
    law duty of care. The court said that there is no common law duty on an owner or
    occupier of premises to keep the adjacent sidewalk clear of ice and snow. Second
    was the statutory duty: there will be a statutory duty of care if the adjacent
    property owner or tenant is an occupier of the sidewalk within the meaning of
    the Act. The third duty the court identified was the common law duty that could
    be owed by an owner or tenant of adjacent premises to ensure that conditions or
    activities on his or her property do not flow off it and cause injury to persons,
    i.e. a cause of action in nuisance or negligence in failing to prevent a
    nuisance.

[45]

Whether there may be any other common law duties on adjacent landowners
    who are not occupiers, such as a duty to warn in appropriate circumstances,
    will have to be determined on a case-by-case basis. As Lewis N. Klar explains
    in
Tort Law
, 5th ed. (Toronto: Carswell, 2012) at p. 627, fn. 118: even
    though the defendant might not have been an occupier of the property in
    question, the defendant still owes a common law duty of care with respect to
    unreasonable risks created with regard to that property citing, as an example,
Lytle v. Toronto (City)
(2004), 2 M.P.L.R. (4th) 58 (S.C.), affd
    (2006) 28 M.P.L.R. (4th) 162 (C.A.).

[46]

What is clear, however, based on s. 2 of the Act, is that there is no
    general common law duty of care, based on proximity principles, owed by an
    adjacent property owner or tenant in respect of sidewalks that abut that
    persons property. The only duty is the statutory duty that is owed by a person
    who meets the definition of occupier under the Act. As Klar writes in
Tort
    Law
at p. 627: [i]t seems irrefutable that the legislation was intended
    to be exclusive and comprehensive, in so far as the liability of occupiers is
    concerned.

[47]

As a result, no common law duty of care arises in this case.

Disposition

[48]

I would dismiss the appeal with costs fixed at $10,000 inclusive of
    disbursements and HST.

Released: K.F. May 2, 2017

K. Feldman J.A.

I agree. John Laskin J.A.

I agree. C.W. Hourigan J.A.


