Judge finds homeowners can't be found liable for accidents on poorly cleared sidewalks

When Darwin Der fell on a Burnaby sidewalk in December 2017, he broke more than the carton of eggs he was carrying in his hand.

A combination of snow, rain, shovelling, salt, unfreezing and refreezing had turned the angled pavement cut into the curb for wheelchair access into a literal slippery slope.

But Der has faced a proverbial uphill battle trying to hold anyone responsible.

The latest blow came this week when a B.C. Supreme Court judge ruled that a pair of homeowners couldn't be found liable for attempts at clearing away snow that may have inadvertently made the sidewalk slipperier.

Justice Heather MacNaughton's ruling provides a window into the law around snow removal and the rights and responsibilities of citizens when it comes to clearing the sidewalks in front of their properties as the mercury dips.

Long story short: even if you fail to comply with a municipal bylaw requiring you to shovel and salt, you can't be found liable if someone slips because you failed to do so.

I immediately fell hard onto my back and neck

Der and his wife were walking home from a grocery store with a dozen eggs on Dec. 21, 2017 when the 76-year-old slipped on the corner of the sidewalk outside of a home belonging to Ang Zhao and Quanqiu Huang.

"As I stepped onto the sloped sidewalk just ahead of my wife, my feet slid out from underneath me and I immediately fell hard onto my back and neck," he wrote in an affidavit filed with the court.

"There is a gap in my memory after the fall, but when I regained some level of awareness, I could feel pain in my shoulder, neck and back, and I could not move."

The retiree has since required surgery to fuse his spine and suffers from some degree of paralysis.

Bylaw breach does not equal civil liability

Der initially sued Zhao, Huang and the City of Burnaby but later discontinued his action against the city.

He was also forced to acknowledge precedent that says that a breach of the city's bylaw requiring "an owner or occupier of property abutting a municipal sidewalk to clear it of ice and snow by 10 a.m. every day" does not create civil liability against the property owner when it comes to users of the sidewalk.

A 2000 ruling in Ontario's Court of Appeal noted that municipal governments across the country "enlist their own residents in the snow-clearing enterprise" and that accidents take place just as regularly.

But those judges found that "the snow and ice accumulating on public sidewalks are the legal responsibility of the municipality" unless an owner assumes responsibility for the space or if poor conditions on their land flow onto the sidewalk, making the public property hazardous.

That left Der trying to claim that Zhao and Huang had "created a hazardous slippery sidewalk that was not visible to a reasonable pedestrian" when they tried to clear the sidewalk prior to the accident.

'Imperative' to follow clearing with de-icing

Zhao and Huang moved into the home in front of the sidewalk on the day Der fell.

Zhao said he had shovelled the sidewalk in previous days in order to comply with the city's bylaws. And Huang claimed she salted the sidewalk in the morning to make it safer for the movers.

But according to a report filed by accident reconstruction expert Tim Leggett, the classic Lower Mainland cycle of freezing and thawing likely left the bare sidewalk vulnerable to the kind of melting that later leads to black ice.

In fact, he said, that had the sidewalk not been shoveled, the snow might have provided some traction.

"It is imperative when performing any winter road maintenance activities to perform it thoroughly," wrote Leggett, an expert in winter road maintenance, friction and slippery slopes.

"In other words, if an effort is undertaken to remove the snow then it follows that an additional effort should be made to apply a de-icing chemical to remove any excess material left behind."

Policy nightmare?

The judge noted that Der wasn't claiming the couple's snow clearing attempts alone had created a "direct" hazard — rather that they should have foreseen that the weather might later turn their bare sidewalk into a skating rink.

MacNaughton said Der had failed to meet the burden of proof for that argument and finding otherwise could have huge policy consequences.

If "property owners who do not clear sidewalks abutting their properties have no legal responsibility for potential resulting danger on those sidewalks, but those who comply with municipal snow removal bylaws expose themselves to liability, the result would be that property owners would have an incentive not to make any efforts to comply with snow removal bylaws," the judge wrote.

"The potential loss of the assistance of private property owners in snow removal efforts out of fear of the potential legal ramifications would be likely to cause more danger than it would prevent."