Ontario Civil


Torts

NEGLIGENCE

Occupiers' liability

Corporation exercising degree of control over sidewalk found to be occupier

Respondent plaintiff M slipped and fell, on municipal sidewalk outside store owned by appellant corporation S. At trial, S was found to be occupier of sidewalk, so that S owed M duty of care. S was later found to have breached their duty to M. S claimed that evidence did not show that they were occupiers of sidewalk. In any event, S claimed that they did not breach duty in keeping area safe. S appealed from trial judgment. Appeal dismissed. Factual findings at trial showed that S exercised degree of control over sidewalk, which was outside its own patio. Conclusion that S was occupier was open to trial judge, based on evidence. Sanding and salting of sidewalk did not absolve S of liability. Finding that S was occupier was not only based on sanding and salting, but evidence of property use as whole. Finding of joint occupancy in this case was consistent with public policy objectives. S did not have common law duty of care to M. This duty was not necessary to find liability in subject case.
MacKay v. Starbucks Corp. (2017), 2017 CarswellOnt 6451, 2017 ONCA 350, John Laskin J.A., K. Feldman J.A., and C.W. Hourigan J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 11546, 2015 ONSC 4718, M.A. Sanderson J. (Ont. S.C.J.).

 


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