Janssen v. William and Markle Jewellers Ltd., 2019 ONSC 70

The plaintiff slipped and fell on a municipal sidewalk adjacent to the front entrance of the retail store operated by the defendant. The municipality was not a party to the action. The defendant brought a successful summary judgment motion on the basis that it was not an “occupier” of the municipal sidewalk and did not otherwise owe the plaintiff a duty of care at common law. The plaintiff unsuccessfully argued that the defendant had exercised sufficient control over the area to make it an occupier, pointing to evidence that the defendant routinely performed winter maintenance of the fall location; that the fall location was directly below an overhang off of which snow and ice fell; and that the fall location was less than a foot away from the carpeted entrance to the store used exclusively by patrons. Justice Mitchell rejected the plaintiff’s arguments, and reasoned that the defendant did not keep any signage or goods on the sidewalk and that its storefront was indistinguishable from the portions of the sidewalk adjacent to other storefronts. Snow and ice removal is not sufficient to make an adjacent owner an occupier of a sidewalk. Justice Mitchell also rejected that the defendant owed any other duty of care to the plaintiff.