Hergott: The trouble with icy sidewalks

Lawyer Paul Hergott discusses the liability of icy sidewalks if someone falls on it

A pedestrian slips and falls on ice on the sidewalk running in front of your home. Are you liable?

You don’t own the property. It’s owned by the municipality.

But they have passed a bylaw shifting the responsibility to you. Here is the Kelowna bylaw:

“2.5.1 Sidewalks. Owners or Occupiers of real property shall remove snow, ice, or rubbish

from the sidewalk and walkways bordering (whether directly adjacent to, or

separated by a boulevard, landscaping, or other portion of either the property or the

road) on the real property owned or occupied by them within 24 hours of the

accumulation of such snow, ice or rubbish.”

Is that fair? Is it right?

If we want our sidewalks cleared, someone needs to do it.

And if homeowners prefer not to have the responsibility, they could pay higher taxes and the service would be done for them.

But should homeowners have that choice? The “homeowners do it themselves” method is failing to keep our sidewalks cleared.

Some folks seem able to remove each flake of snow as it falls. Others shirk their bylaw imposed responsibility, seeming not to own a shovel.

The result is a hodgepodge of snow and ice clearing, making for dangerous and impassable sections of sidewalk for pedestrians, particularly the most vulnerable with mobility restrictions and challenges.

It is important, in my view, for sidewalks to be reasonably clear of snow and ice. Perhaps that goal can be reached through enforcement of the bylaw. If not, I say we should jack up property taxes as necessary to pay contractors to do it.

But what about the question I posed: If a pedestrian is hurt because a homeowner shirks their bylaw obligations, is the homeowner liable?

Unfortunately, no.

I was wrong in previous columns when I said otherwise. I have now done the research and set myself straight. The question was posed and answered succinctly in this paragraph of the decision of Cullinane v. City of Prince George et al., 2000 BCSC 1089.

[53] The issue with respect to Northland’s liability is this:

Does a municipal bylaw require an owner of a property to keep a sidewalk adjacent to the property free of ice and snow, translate into civil liability to a third party using the sidewalk, for failure to comply with the bylaw when an injury occurs due to ice and snow on that sidewalk?

Case authority in British Columbia, in Ontario and in Nova Scotia has held that it does not.

I say “unfortunately” for two reasons.

One is that the risk of civil liability might motivate those shirkers to go out and buy a shovel.

The other is that injured pedestrians are unlikely to be compensated for their losses.

And it’s pedestrians who can least shoulder losses from a serious fall injury. They are likely to be less affluent and more likely to rely on their physical walking capability for transportation.

Can’t they recover their losses from the municipality that owns the property?

These types of claims against municipalities are very difficult because they are not held to the same standard a homeowner would be held to.

I have said many times that “the best claim is no claim at all” and that certainly applies to slips and falls. I say we should take whatever steps are necessary to achieve the goal of safe sidewalks. I suspect that this will require increased taxes to fund organized snow and ice removal.

In the meantime, can we ask for higher municipal enforcement? And how about encouraging the shirkers around you to pick up a shovel?

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