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Case Summary: Der v Zhao
Defence + Indemnity

The existence of a municipal bylaw requiring residents to clear sidewalks abutting their property together with the fact that the property owner voluntarily cleared the sidewalk do not create a duty of care towards users of the sidewalk.

Der v Zhao, 2019 BCSC 1996, per MacNaughton, J.

Facts + Issues

The Respondent Der slipped backwards on a sloped part of the municipal sidewalk abutting the residential premises owned by the Applicants Zhao and Huang. The Respondent Der suffered incomplete tetraplegia as a result of the fall and required surgery to fuse his spine.

Zhao and Huang had purchased the premises several months beforehand but did not move in until the day of the Respondent’s accident. The sidewalk at issue was relatively flat but sloped down to a wheelchair access ramp at the corner. Zhao claimed to have salted the sidewalks around the premises in the weeks before the accident and to have cleared the snow and ice the day before. He claimed he understood that he was required by the city to clear the sidewalk. On the morning of the accident, Huang claimed to have gone to the premises and salted the sidewalk. She did not remember whether she had salted the area around the wheelchair access ramp.

Der claimed that the snow on the sidewalk appeared to have been cleared. The cleared part of the sidewalk did not appear to be icy.

Der sued Zhao and Huang arguing that they were negligent, including for having breached a City Bylaw which required the owner or occupier of property abutting a municipal sidewalk to clear it of ice and snow by 10:00 AM every day.

An accident reconstruction engineer called by Der gave his opinion that if the sidewalk had been properly shovelled and salted, he would not have expected black ice to be present. He further gave his opinion that shovelling the snow from the sidewalk without salting or sanding afterwards would create a more slippery (and dangerous) surface than if the snow were left in place.

Zhao and Huang applied to sever the issue of liability from damages and to have liability determined by way of a summary trial. By that date, Der abandoned his argument that the property owners were “occupiers” of the municipal sidewalk within the meaning of the B.C. Liability Act, R.S.B.C. 1996, c. 337. His claim proceeded on the basis of common law negligence based on an argument that the property owners had taken on a duty of care towards him by shovelling and sanding the sidewalk. More particularly, Der argued that a novel duty of care should be established in circumstances where a property owner fails in their attempts to clear the sidewalk, thereby causing or contributing to dangerous conditions. He argued that in such a case the property owner owed a duty either to warn of the danger or ameliorate the dangerous conditions.

HELD: For the Applicants; issues severed, liability rejected on summary trial.

The Court summarized the law with respect to severing the trials for liability and quantum:

14  Severance will only be granted where there are “extraordinary, exceptional or compelling reasons” and will not be appropriate if there are credibility issues that are integral to both liability and quantum: Chun at paras. 4 - 5, 9, and 24 - 26. In Chun, the Court was of the view that credibility was at the heart of the case and held that there should not be severance of liability from quantum. See also Bernhardt v. Vernon (City) Board of Education (1979), 14 B.C.L.R. 304 (B.C. S.C.) at 306, where, in the context of a personal injury case that was scheduled to be heard before a jury, the court found that the assessment of credibility and an examination of the nature and extent of the injuries were best achieved by trying the questions of liability and damages together. In that case, it was undisputed that both liability and quantum would involve considerable evidence, including expert testimony.

15  In Emtwo Properties Inc. v. Cineplex (Western Canada) Inc., 2009 BCSC 1592 (B.C. S.C.), Justice Fenlon, as she then was, comprehensively set out the analysis to be undertaken regarding the court’s discretion to sever liability from damages. While decided in the context of a previous Supreme Court Civil Rule, the reasoning continues to apply.

16  Justice Fenlon confirmed that the court’s authority to sever is discretionary, and this discretion should be interpreted in light of the overall objective of securing the just, speedy, and inexpensive determination of every proceeding on its merits: at paras. 12 - 13. The onus is on the applicant to demonstrate that severance should be granted: at para. 15. She summarized the main factors to be addressed in the exercise of the court’s discretion at para. 16:

  1. Is there evidence that severance is likely to result in a significant saving of time and expense?
  2. Is there some evidence that a severed trial will put an end to the action?
  3. Are the issues of liability and damages intertwined?
  4. Is there a compelling reason to justify severance other than savings of time and expense?

The Court held that in this case the quantum and liability issues were not intertwined and “the evidence with respect to liability will not factor into the assessment of the damages Mr. Der suffered” (para. 17). These factors supported severance. In addition, if the Court were “to conclude that Mr. Zhao and Ms. Huang did not owe Mr. Der a duty of care, there would be a significant saving of time and expense and that such a determination would bring this action to an end.”

The Court declined to find a novel duty of care where a property owner voluntarily clears an adjacent municipal sidewalk and cleared it negligently.

  1. The Court held that they had not taken on a recognized duty of care by shovelling and sanding the municipal sidewalk in question:

58  In this case, there is no indication that absent Mr. Zhao and Ms. Huang’s conduct, the City would have ameliorated the dangers on the sidewalk. There is no suggestion of any communication from Mr. Zhao or Ms. Huang to the City, which would amount to an agreement to take control over and manage the risks of ice and snow that develop on the sidewalk.

59  It is not reasonable to interpret an attempt to comply with a bylaw as a voluntary undertaking to the City to maintain the sidewalk and resolve dangers that later form on it. I therefore conclude that this case does not fall within a previously recognized category.

  1. The Court rejected Der’s argument that the relationship between owners of property who voluntarily clear an abutting municipal sidewalk and users of the municipal sidewalk should give rise to a previously unrecognized duty of care.
     
    1. Der did not dispute the holding in Bongiardina v. York (Regional Municipality), 2000 CarswellOnt 2622 to the effect that no duty of care was owed by property owners to users of an adjacent municipal sidewalk but argued that, nor did he argue that it had been wrongly decided. The Court rejected his argument that Bongiardina was distinguishable because the property owners had not made any attempts to clear the municipal sidewalk. Der’s argument confused the issues of duty of care and standard of care:

62  In my view, Mr. Der’s argument is logically flawed. It seeks to impose a duty of care on the basis that the act of clearing the sidewalk was performed negligently — in other words, that the standard of care was breached — in circumstances in which he accepts that a duty of care does not exist.

63  To agree that homeowners owe no duty to users of the sidewalk to maintain it, but argue that failing to act to the appropriate standard in doing so can create a duty of care, is contrary to basic negligence principles in that it conflates concepts of duty of care with standard of care. It is circular reasoning.

64  The question of the appropriate standard of care does not arise if a duty of care is not established. As set out in Simpson v. Baechler, 2009 BCCA 13 (B.C. C.A.) at para. 31, summarizing Ryan v. Victoria (City), [1999] 1 S.C.R. 201 (S.C.C.) at para. 21, and cited with approval in Van Tent v. Abbotsford (City), 2013 BCCA 236 (B.C. C.A.) at para. 30, “a discussion of duty centres around its existence, while the standard of care clarifies what the content of the duty is. Where there is no duty there is no negligence.”

  1. The Court held that Der might have been more successful in asserting a novel duty of care if he had argued that the property owners’ efforts to clear the municipal sidewalk in and of themselves created a danger of foreseeable harm to sidewalk users:

72  It might be a different situation if Mr. Der’s argument was that Mr. Zhao’s and Ms. Huang’s actions, in and of themselves, created a danger which caused reasonably foreseeable harm to users of the sidewalk. However, that is not his argument. He does not argue that Mr. Zhao’s and Ms. Huang’s actions caused a direct danger, but argues instead that their actions, combined with additional circumstances relating to weather patterns, and the slope and structure of the sidewalk, led to the formation of a danger after the fact. It is in the context of these circumstances that Mr. Der bears the burden of establishing that reasonable foreseeability and proximity are met such that it would be just and fair to impose a duty of care on Mr. Zhao and Ms. Huang. He has not met this burden.

73  Even assuming that Mr. Der was successful in establishing sufficient proximity to warrant imposing a positive duty on Mr. Zhao and Ms. Huang to ameliorate, or warn sidewalk users of, the danger of black ice forming as a result of their snow removal efforts, I expect that there would be significant policy reasons against recognizing a duty of care in these circumstances.

74  If, as Mr. Der concedes, 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 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.

The Court further held that because there was no duty of care it was unnecessary to consider the issue of Der’s credibility as to the condition of the sidewalk:

75  The existence of a duty of care is a distinct legal question, and in the circumstances of this case, it can be decided without the need to assess the witness’ credibility with respect to the conditions of the sidewalk on the morning of the Fall.

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