AccounTrust (post until Sept. 30/19)
Civil Litigation, Municipal

Homeowners on the hook for clearing snow from sidewalks

Toronto homeowners who don’t regularly clear their sidewalks after a snowfall can be at risk to be found responsible for any accidents that might occur, Toronto litigator Stefan Rosenbaum tells

“If the city has documentation showing that they’ve continually issued warnings or citations to the homeowner, or evidence that the homeowner has created a hazard on the city sidewalk, then they have a stronger argument that it’s the homeowner’s responsibility for any slip and fall that may have resulted from that,” says Rosenbaum, an associate with Shibley Righton LLP. “Obviously the counter-argument is that it’s the city’s sidewalk and the city can’t completely delegate its responsibility of the sidewalk to homeowners.”

A Toronto bylaw requires homeowners to clear the sidewalks in front of their properties within 12 hours of a snowfall. And it has a program in place to assist homeowners that are unable to do the work.

So the onus is on the homeowner to ensure their section of sidewalk is safe. Homeowners can be warned and even fined for not maintaining a clear space, although trying to enforce that could be onerous for the city.

When an accident does occur, deciding who is responsible isn’t always so easy, Rosenbaum explains.

Toronto requires that it must be alerted to any potential claims within 10 days. Although there are circumstances, including the nature of the injury, that may prevent that from happening.

Following an incident, the city sends out a claims adjuster.

The adjuster investigates to determine whether the city has met the standard of care.

“The one thing people may not know — even some plaintiff personal injury lawyers who handle these cases — is that the standard the city has to meet in slip and falls is gross negligence. Which is quite a high bar to meet” says Rosenbaum.

In a claim situation, the city may look at the homeowner as being partly responsible if there’s an indication of a hazard that wasn’t properly addressed. He suggests that might include scenarios like a downspout directed onto the sidewalk or a shovelling job that created a danger.

if the claims investigator determines that the cause of the slip and fall was freezing of the sidewalk that resulted from something the homeowner was doing, the city would consider bringing the homeowner into the litigation, Rosenbaum says.

“The case law is not entirely clear as to when the city can look to the homeowner; it doesn’t necessarily bring the homeowner into every single slip and fall that happens in front of somebody’s house,” he says.

He points out that people generally don’t want to see others hurt in front of their homes. But there are risks, Rosenbaum says.

The message at the end of the day is to be diligent in keeping sidewalks clear, he says.

“If you end up becoming involved in a lawsuit because you’ve done something the city feels you shouldn’t have, it’s a headache. You just don’t want to get dragged into litigation,” Rosenbaum says. “If you are diligent about clearing your sidewalk after a snowfall and salting it when necessary, you can avoid the situation altogether.”

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