MacKay v Starbucks Corporation, 2017 ONCA 350

The Court of Appeal upheld the trial judge’s ruling that Starbucks was an occupier of a municipal sidewalk leading into a Starbucks patio. The Court noted that in order for an adjacent property owner to be an occupier, the adjacent property owner’s actions must constitute more than “merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.”

Released May 7, 2017 | Full Decision [CanLII]

The plaintiff slipped on a municipal sidewalk just outside the entrance into a Starbucks patio. The patio was enclosed by a fence and abutted the sidewalk, with an approximately 3-4 foot opening in the fence between the sidewalk and patio. Starbucks had exclusive use of the patio and maintained the area leading into the patio from the sidewalk.

The trial judge relied on evidence from a Starbucks shift manager that Starbucks employees were instructed to salt and sand not only the patio area, but also a pathway on the sidewalk outside the fence opening. The shift manager testified that employees were instructed to ensure a clear passageway from the Starbucks patio to a neighbouring store’s entrance. Another witness, who was a frequent customer of this Starbucks location, gave evidence that many pedestrians used the pathway to access Starbucks and that the pathway leading to the patio was used almost exclusively by Starbucks customers.

The trial judge found that “[b]y 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.”

The trial judge concluded that by constructing the fence, guiding pedestrian traffic, and maintaining the condition of the pathway by clearing, salting and sanding, Starbucks assumed control of that area of the sidewalk.

The Court of Appeal upheld the ruling that Starbucks was an occupier of the area where the plaintiff fell. The court noted:

“[T]o the extent that storefront owners and occupiers have been found to be, in effect, joint occupiers with the municipality of portions of the sidewalk immediately adjacent to their stores that their customers use, such findings are consistent with the purpose and public policy objectives of the [Occupiers’ Liability Act]. That purpose and policy is to impose liability on those who, by their conduct, assume control over and responsibility for a portion of the immediately adjacent sidewalk and the safety of those who use it. That conduct must, as in this case, amount to much more than merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.”

However, in the event that Starbucks was found not to be an occupier, the plaintiff argued that Starbucks owed a common law duty of care to visitors on an adjacent property. The Court of Appeal dismissed this second argument, finding that “there is no general common law duty of care, based on proximity principles, owed by an adjacent property owner or tenant in respect of sidewalks that abut that person’s property.”

Read the full decision on CanLII
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Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.