Does an agreement between a private entity and a contractor to maintain a public area in accordance with city bylaws create a duty of care owed by the contractor to general users?
In a recent decision by the BC Court of Appeal in Magdalena Pavlovic v. Just George Cleaning and Maintenance Inc., 2023 BCCA 219, the Court affirmed that a contractor who maintains a public property on behalf of a private entity does not owe a duty of care to general users of the sidewalk beyond the applicable regulations and bylaws.
In December 2016, Ms. Pavlovic (the Appellant) slipped and fell on ice/snow on a City of Vancouver sidewalk adjacent to an area owned by a strata corporation. She brought a claim against the Respondent, Just George Cleaning and Maintenance Inc, who was contracted to clean the sidewalk on behalf of the strata.
At trial, the Court found that the nature of the contractual obligation between the strata and Just George was to maintain the sidewalk in accordance with the City’s Street and Traffic By-Law No. 2849. The Court ultimately found that the relationship between Just George and the Appellant lacked the sufficient proximity required to establish a duty of care. Ms. Pavlovic appealed, arguing that the contract between Just George and the strata did establish a relationship of sufficient proximity between Just George and members of the public.
On appeal, the BC Court of Appeal (the “BCCA”) affirmed the trial judge’s decision. The BCCA noted that, historically, no duty had been recognized in such relationship. In finding that the relationship between Just George and the Appellant lacked the necessary proximity, the Court emphasized the following three factors:
- the sidewalks were owned and controlled by the city, not the property owner;
- the appellant was a general user of the sidewalk, and not someone invited into the property by the sidewalk; and
- the obligation in accordance to the City bylaw was to clear the sidewalk every morning, and not to ensure it was safe around the clock.
Due to these factors, the Court found the relationship to be insufficiently proximate.
Finally, the BCCA analyzed whether the strata’s decision to delegate their sidewalk clearing obligations to Just George made the relationship between Just George and Ms. Pavlovic sufficiently proximate. They found this not to be the case, because the obligation on Just George and the strata were the same. As a result, there was no distinction between Just George and the strata in respect to this duty, and thus the proximity of their relationship to users of the sidewalk in general.
This decision is the most recent in a line of cases from British Columbia courts, including Miller v. Kamloops (City), 2003 BCSC 908 and Scheck v. Parkdale Place Housing Society, 2018 BCSC 938 where courts have found that snow-clearing bylaws do not themselves create a duty of care from contractors to members of the public using the sidewalk. However, snow clearing contractors and occupiers should ensure a reasonable system of inspection and maintenance for snow and ice exists and is being followed. Contractors/occupiers should also pay particular attention to the terms of the contract between them, as this can affect whether a duty of care exists.
For more information, or if you have a question about this article, please contact a member of our Insurance Law Group.