Canada: Take Control Of Public Space And Liability May Follow

Case Comment - MacKay v Starbucks



At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act ("the Act").

Facts

The decision evaluated the liability of Starbucks in a situation where a customer slipped on a city sidewalk just outside of the business' premises. The incident occurred at a Starbucks location in Toronto where patrons are able to enter through one of two entrances off of intersecting city streets. At one of the entrances, customers have to walk through the outdoor Starbucks patio in order to access the side door. The patio in question was adjacent to the city sidewalk and enclosed by a fence with a three to four-foot opening. Other than the fence, there was no apparent demarcation between the city sidewalk outside the patio and Starbucks property; they were seamlessly connected.

As a result, Starbucks patrons must use this city sidewalk in order to enter and exit the store through the side entrance, essentially as a "passage or corridor" to the Starbucks side door. To ease the passage, the city sidewalk which adjoined the walkway was also shoveled and sanded by Starbucks employees during the winter since it was almost exclusively used by Starbucks customers. The complainant slipped on ice on the city portion of the sidewalk after leaving the Starbucks patio through the opening in the fence.

At trial, it was found that Starbucks was indeed an occupier and therefore liable for the injury suffered. Starbucks thereafter appealed this decision.

Issues

The issues considered in this appeal were essentially:

  1. Was Starbucks an occupier of the city portion of the sidewalk under s.1 of the Act?
  2. Even if Starbucks was not an occupier, did it still owe a duty of care to the complainant?

Analysis

Was Starbucks an occupier under s.1 of the Act?

According to s.1 of the Act:

"occupier" includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises.

Starbucks, the appellant, submitted that the trial judge erred in defining it an occupier under the Act. Starbucks advocated that this determination was contrary to what was decided in a similar Ontario Court of Appeal case (Bongiardina v. York (Regional Municipality)) where it was held that someone who habitually cleared snow from a city sidewalk outside their home was not an occupier of that sidewalk for the purposes of the Act. However, the Court in MacKay found that the conduct of Starbucks differed from the owner of the residential property in Bongiardina. The owner in Bongiardina did not take any other steps to exercise control over the city sidewalk. In contrast, in MacKay it was found that a range of factors existed which demonstrated that Starbucks exercised a greater degree of control over the sidewalk. In particular, the sidewalk was almost exclusively used by Starbucks patrons who would not be on the sidewalk for any other purpose than entering Starbucks. The trial judge also observed that:

By its actions, Starbucks effectively directed all of its customers entering and exiting its store on the Hammersmith side to use that area of the sidewalk. It effectively controlled their access route and ensured that they would walk on the pathway it had designated, including on that portion of the sidewalk.2

The appellate judge was in consensus with the trial judge's determination. As a result, Starbucks remained defined as an occupier under the Act.

Did Starbucks owe a duty of care to the complainant, even if was not an occupier?

The Court considered three possible categories of care owed:

  1. A common law duty of care in negligence;
  2. The statutory duty of care owed under the Act; and
  3. A common law duty in nuisance.

Drawing from Bongiardina, the Court concluded that a neighbouring occupier did not owe a duty at common law to keep adjacent properties clear from hazards and the first category would not apply. Similarly, as the Act comprehensively and exclusively covered care owed by an occupier, it was clear that no duty could exist under the Act if Starbucks was not an occupier of the sidewalk. There did not appear to be any allegation that the loss was a result of nuisance flowing from Starbucks' property. Accordingly, none of the categories of care would apply.

While the Court did consider that there could exist other categories of care, it stated that those would have to be determined on a case-by-case basis.

The appellate judge, therefore, concluded that based on s.2 of the Act, there is no general common law duty of care, based on proximity principles, owed by a non-occupier in regards to sidewalks that are adjacent to that owner's property.

Takeaways

This case expands the kind of liability which could be faced by business owners. Starbucks cleared snow and ice from a specific portion of city sidewalk in order to direct customers to one of the entrances of its premises. It was the degree of control over the property and the use for which the control was exercised that appears to have led to the ultimate ruling. Taken to its core, this case suggests that where a business exercises control over city property in furtherance of its commercial purposes, it will be deemed to be an occupier of that public space.

This raises some interesting, and unanswered, questions as to what the cutoff is for commercial purposes. For example, had Starbucks taken it upon themselves to shovel the entirety of the outside sidewalk, which would have been beneficial to both its customers and the general public, would it have been deemed to be an occupier of the whole sidewalk?

However, one of the most important lessons to take out of MacKay is that business owners should exercise caution on how much control they exercise over city sidewalks located adjacent to their property and for what purpose. If an argument could be made that the control was for a commercial purpose, liability may flow from any injuries sustained upon that property.

Footnotes

1 MacKay v. Starbucks Corp., 2017 ONCA 350
2 Ibid at para 7.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.