Hergott: More on residents’ responsibility for clearing snow off sidewalks

West Kelowna lawyer Paul Hergott addresses the issue of snow clearing.

Thanks to Carol, a reader who e-mailed me with a question arising from my last column.

I wrote about sidewalk safety and referred to the Kelowna and West Kelowna bylaws that require us to keep the sidewalks in front of our homes clear of snow and ice.

I pointed out that with legal responsibility comes legal liability if someone is injured because of a failure to obey the bylaw.

I suggested that if we don’t like the responsibility of keeping the public

property in front of our homes safe, we should encourage our municipalities to increase taxes so that they can afford to plow and sand our sidewalks like they plow and sand our streets.

Carol is a diligent homeowner who accepts her civic responsibility. She will be out there with her shovel two or three times per day, if necessary, to keep the sidewalk that wraps around her corner lot clear of snow.

Carol asked what happens when the snow plow comes along, dumping chunks of ice and snow from the road onto the sidewalk that she has so diligently kept clear.

The ploughed chunks of ice and snow are very heavy and quickly harden to the point of requiring a pick-axe to get through.

Carol can manage keeping the sidewalk clear of snow as it naturally accumulates, but is physically incapable of clearing the mess dumped there by heavy machinery.

Adding insult to injury, even if she was physically able to, there is another bylaw that prohibits Carol from pushing the piles back onto the roadway.

What else is she to do with the ugly mix of gravel, salt, ice and snow?

Push it onto her property so that the thawed mess will wreck her carefully manicured yard?

It is clear to me that the people drafting the West Kelowna bylaw were intending it to deal with snow and ice that had accumulated naturally.

Here are the words of that bylaw: “…shall remove all snow or ice from all sidewalks…within 24 hours from the cessation of a snowfall or storm event which caused such accumulation.”

British Columbia law requires that we give bylaws a “benevolent” interpretation, though, and a court may well interpret the bylaw to require removal of the snow plow mess.

The Kelowna bylaw wording is slightly different: “…shall remove snow, ice or rubbish from the sidewalk…within 24 hours of the accumulation of such snow, ice or rubbish.”

There’s not a lot of naturally accumulating rubbish.

Regardless of the precise wordings of the bylaws, the municipalities are leaving it up to homeowners to deal with the snow plow messes.

There are areas along my own street where the plow has buried the sidewalk.

Perhaps the municipalities have given clear instructions to the snow removal contractors to ensure their plow operators don’t create the problem that Carol has raised. Perhaps the contractors are specifically instructed to leave snow plow debris on the road, being careful that it doesn’t get deposited on sidewalks.

Perhaps clear instructions to avoid dumping plow debris onto sidewalks shouldn’t be required. Perhaps it’s a matter of common sense.  Alternatively, perhaps plow operators would like to slap me up-side the head to help clue me in that it’s unavoidable.

Whatever the case, homeowners have a moral (in my view) and likely a legal obligation under the bylaws to keep the sidewalks in front of their homes safe, i.e. clear of ice and snow.

I have a suggestion.  How about hiring someone to take a pick-axe to that frozen mass of snow-plow debris and haul it away and send the bill to the municipality.

If the municipality doesn’t reimburse you, bring a small claims action naming both the municipality and the snow removal contractor.

However you slice it, the municipalities are responsible for clearing ice and snow off the roadways.

The way they are going about it is resulting in plow debris being deposited onto sidewalks.  If they dumped the debris on your front porch, you would certainly be entitled to bill them for its removal.

How is that different from dumping it on an area that you are responsible for keeping clear?

I could be wrong, of course, in which case you will not be reimbursed the expense of fulfilling your moral and legal duty and you will also be out the modest expense of pursuing a small claims action.  You will have made the sidewalk in front of your home safe for folks like my father, though, and will have learned a lot about our legal system.

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case.

Paul Hergott is a lawyer at Hergott Law in West Kelowna.


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