In order to advance a claim in the tort of negligence, a plaintiff must first establish that the defendant owes him or her a duty of care, meaning that the defendant has a legal obligation to the plaintiff which it breached. In Pavlovic v. the Owners, Strata Plan LMS 2211, 2022 BCSC 1368, Justice Tucker ruled that our client, Just George Cleaning and Maintenance Inc. (“Just George”), did not owe the Plaintiff a duty of care and dismissed the case.
By way of background, the Plaintiff fell and fractured her wrist while walking on a municipal sidewalk owned by the City of Vancouver (“Sidewalk”) which she says was covered with ice and snow. The Sidewalk was adjacent to a residential condominium, known as the MacGregor, which was owned by the Strata. The Strata entered into a contract with Just George to perform maintenance and caretaking duties around the MacGregor Building (the “Contract”). At all material times, the City of Vancouver had in place a bylaw that required adjacent property owners to remove snow and ice from sidewalks adjacent to their property by 10 am. In order to comply with that bylaw, the Strata asked Just George to assist it with removing snow and ice from the sidewalk before 10 am as part of its obligations under the Contract.
After the commencement of this litigation, the Court of Appeal ruled in Der v. Zhao, 2021 BCCA 82, that the snow removal bylaw does not shift liability for a sidewalk from the City to the adjacent property owners. Accordingly, the Plaintiff abandoned her claim against the Strata but continued to pursue her claim against Just George, arguing that it owed her a “contractual duty of care”, meaning that as a maintenance contractor, Just George had a duty of care to users to reasonably maintain the area it was engaged to maintain.
In dismissing the Plaintiff’s case, Justice Tucker followed the framework for the duty of care analysis summarized by the Court of Appeal in Der, known as the Anns/Cooper analysis.
First, Justice Tucker found that the Plaintiff failed to provide an analogous precedent that established the existence or non-existence of a duty of care in similar circumstances. She noted that while the cases cited by the Plaintiff showed it was possible for a maintenance contractor to, in some circumstances, owe a duty of care to users of the property it was engaged to maintain, the case law did not establish that a maintenance contractor owes such a duty of care in general. At best, the case law showed that in some instances, the existence of a duty of care owed by a maintenance contractor to users of the area maintained depends on the contractual obligations undertaken, but does not establish the existence of a categorical duty.
Second, Justice Tucker found that while it may be reasonably foreseeable that if Just George failed to perform its contractual obligations, namely removing snow and ice from the sidewalk, someone in the Plaintiff’s position may be injured, there was not a relationship of sufficient proximity between the Plaintiff and Just George such that it would be just to impose a duty of care in the circumstances. In reaching this conclusion on proximity, Justice Tucker relied largely on the analysis from Der in which the Court of Appeal found that sidewalks are owned, occupied, and maintained by the municipality, which thus has a much closer relationship with users of the sidewalk than that of adjacent property owners. The courts have concluded that the passage of a snow clearing bylaw does not shift liability for lack of or negligent snow-clearing efforts from the municipality to the adjacent property owner. Justice Tucker concluded that Just George stands in the same position as the hypothetical adjacent property owner, and the Plaintiff the same hypothetical pedestrian – as there is no duty to maintain the property of a neighbor for the benefit of strangers who may use that property, there is no basis on which to find sufficient proximity between the Plaintiff and Just George.
This decision follows the precedents set by Miller v. Kamloops (City), 2003 BCSC 908, Scheck v. Parkdale Place Housing Society, 2018 BCSC 938 and Der, in which our courts have consistently concluded that the enactment of snow-clearing bylaws does not create a civil cause of action in favor of pedestrians. Whether a maintenance contractor owes a duty of care in any given case will depend on the terms of its contract. However, where a contractor is only required to assist an owner with fulfilling its obligations under the snow-clearing bylaw, that contract will not in and of itself attract liability in the event one of the sidewalk’s users injures themselves.