Back To Tort Law Basics ' Plaintiff Fails To Establish A Duty Of Care For Slip And Fall On A Municipal Sidewalk

• Published date: 13 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Professional Negligence, Real Estate
• Law Firm: Clark Wilson LLP
• Author: Ms Meera Jain and Brian Poston

In order to advance a claim in the tort of negligence, a plaintiff must first establish that the defendant owes him or her a duty of care, meaning that the defendant has a legal obligation to the plaintiff which it breached. In Pavlovic v. the Owners, Strata Plan LMS 2211, 2022 BCSC 1368, Justice Tucker ruled that our client, Just George Cleaning and Maintenance Inc. ("Just George"), did not owe the Plaintiff a duty of care and dismissed the case.

By way of background, the Plaintiff fell and fractured her wrist while walking on a municipal sidewalk owned by the City of Vancouver ("Sidewalk") which she says was covered with ice and snow. The Sidewalk was adjacent to a residential condominium, known as the MacGregor, which was owned by the Strata. The Strata entered into a contract with Just George to perform maintenance and caretaking duties around the MacGregor Building (the "Contract"). At all material times, the City of Vancouver had in place a bylaw that required adjacent property owners to remove snow and ice from sidewalks adjacent to their property by 10 am. In order to comply with that bylaw, the Strata asked Just George to assist it with removing snow and ice from the sidewalk before 10 am as part of its obligations under the Contract.

After the commencement of this litigation, the Court of Appeal ruled in Der v. Zhao, 2021 BCCA 82, that the snow removal bylaw does not shift liability for a sidewalk from the City to the adjacent property owners. Accordingly, the Plaintiff abandoned her claim against the Strata but continued to pursue her claim against Just George, arguing that it owed her a "contractual duty of care", meaning that as a maintenance contractor, Just George had a duty of care to users to reasonably maintain the area it was engaged to maintain.

In dismissing the Plaintiff's case, Justice Tucker followed the framework for the duty of care analysis summarized by the Court of Appeal in Der, known as the Anns/Cooper analysis.

First, Justice Tucker found that the Plaintiff failed to provide an analogous precedent that established the existence or non-existence of a duty of care in similar circumstances. She noted that while the cases cited by the Plaintiff showed it was possible for a maintenance contractor to, in some circumstances, owe a duty of care to users of the property it was engaged to maintain, the case law did not establish that a maintenance contractor owes such a duty of care in general. At best, the case law showed that in...