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OCCUPIERS' LIABILITY - Definitions - Occupier - Statutory - Particular situations - Ice and snow

Tuesday, May 16, 2017 @ 8:45 AM  

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Appeal by the defendant, Starbucks, from a pre-trial ruling that it was an occupier for the purpose of the Occupiers' Liability Act (OLA). The plaintiff slipped and fell on an ice-covered municipal sidewalk at the entrance to a Starbucks patio. The Starbucks was located within a small retail mall. The patio was enclosed by a fence that included an opening that seamlessly joined the patio with the sidewalk. The trial judge found that the patio was not a common element of the shopping centre complex, and that Starbucks maintained the area leading into the patio from the sidewalk where the plaintiff's fall occurred. The judge ruled that Starbucks was an occupier of that part of the sidewalk and therefore owed the plaintiff a duty of care. The jury ultimately found that Starbucks breached its duty of care as an occupier. Starbucks appealed.

HELD: Appeal dismissed. The trial judge did not err in concluding that Starbucks was an occupier for the purpose of the OLA in respect of the area of the sidewalk where the plaintiff's fall occurred. The evidence supported the finding that Starbucks had the requisite responsibility and exerted the requisite amount of control over the sidewalk entrance to its patio, and over its customers who used that area to access its store. Starbucks' contention that its duty did not extend beyond the strict limits of its patio was inconsistent with the authorities and judge's factual findings regarding Starbucks' efforts to clear snow and ice from the sidewalk patio entrance. No palpable and overriding error was established.

Mackay v. Starbucks Corp., [2017] O.J. No. 2228, Ontario Court of Appeal, J.I. Laskin, K.N. Feldman and C.W. Hourigan JJ.A., May 2, 2017. Digest No. TLD-May152017004