A warm spell in February doesn’t mean that winter is over in Southern Ontario. We all still must pay close attention to the state of our property to make sure it’s reasonably safe for any persons entering thereon.
Are you maintaining your property to keep it clear of snow and ice, and other hazards of winter? If not, you could be held liable in a slip and fall claim. Whether it’s your front steps, your walkway, or your driveway, it’s your responsibility to keep the premises clear and safe.
What is the Occupiers’ Liability Act?
Ontario’s Occupiers’ Liability Act ensures that any victims that fall prey to unsafe conditions on your property in a slip and fall or other type of accident can file a claim against you for compensation.
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.
Meeting the mandated duty of care is critical, particularly in the winter months.
Who’s responsible for clearing the sidewalk in front of your home?
It is interesting to point out that most cities and municipalities have by-laws and Municipal Codes requiring the abutting property owner to clear the snow or ice from a city sidewalk within a specific time period. In Toronto, for instance, the Municipal Code states:
Chapter 719-2 (A) — Every owner or occupant of any building must, within 12 hours after any fall of snow, rain or hail has ceased, clear away and completely remove snow and ice from any sidewalk on any highway in front of, alongside or at the rear of the building. would still be liable for any injuries.
While a municipal by-law imposes an obligation on an abutting property owner to clear the ice and snow from the city sidewalk, failure to do so can only result in a fine. It is settled law in Ontario that a property owner cannot be sued for damages based on this type of breach regarding clearing ice and snow from the abutting sidewalk.
This is because the obligation to clear the sidewalk ultimately rests with the City or Municipality, which own the sidewalk.
Exceptions to the City or Municipality’s sidewalk responsibility
There are some exceptions to be aware of. For instance, a situation where the abutting property owner causes water to leak onto the sidewalk from their property thus creating the hazardous icy condition would create liability for the property owner or occupier.
In addition, circumstances where the property owner has care and control of the sidewalk and are “occupiers” would create another exception.
In both of the above cases, the legal basis to sue for damages would be a breach of the statutory duty under the Occupiers’ Liability Act.
Hiring an independent contractor to clear ice and snow
With respect to the abutting private property, the hiring of an independent contractor to clear your property of snow and ice can protect you from liability. If you hire a proper professional contractor, and you acted reasonably in hiring that contractor, you may be fully protected, and the responsibility will fall upon the contractor.
“If you can afford to hire assistance with your property’s outdoor winter maintenance, I regularly advise clients to do so, but to act with due diligence in selecting the contractor,” said Mr. Brian A. Horowitz of Horowitz Injury Law.
Indeed, be forewarned: simply getting a vague agreement and an invoice for work performed will likely not be satisfactory in the eyes of the court. You still must prove that due diligence was carried out to ensure that the coverage you signed up for was adequate and sufficient for your property.
As well, your contractor should be seen as professional and reputable, and use only properly trained labour that is WSIB certified.
Continue to remain vigilant about your own property’s winter conditions
“One should also be aware, as well,” notes Mr. Horowitz, “that the contractor cannot always be at the property, so I still advise clients to do regular inspections and to have their own shovels and salt available, if the need arises.
“In addition, if at all possible,” continued Mr. Horowitz, “I advise clients who can afford it to have video cameras covering the walkway and driveway; this will allow you to document your shovelling efforts and any alleged slip and fall on your property. Your insurance company will thank you”.
The winter isn’t over yet, and property owners will have to remain vigilant about clearing snow and ice whenever it might occur, day, evening, overnight, February, March, or even April or later.
If you or a loved one has been a victim of a slip and fall on improperly maintained premises, call Horowitz Injury Law immediately for a free consultation. We have over 35 years of handling slip and fall cases, and getting our clients the results, they deserve.
