Carfra Lawton LLP | Victoria BC

Sidewalk snow removal bylaw does not create duty of care for homeowners

The plaintiff in Der v. Zhao, 2019 BCSC 1996, slipped and fell on a city sidewalk that was adjacent to a home owned by the defendants. Following a heavy snowfall the defendants cleared a portion of the sidewalks in accordance with their city’s snow removal bylaw. The next day the plaintiff slipped and fell. The plaintiff alleged that the defendants’ snow clearing efforts caused black ice to form which caused him to fall.

The defendants were not occupiers of the sidewalk as it was owned by the city. The plaintiff argued that because the defendants “voluntarily” undertook sidewalk clearing they had a duty to perform the clearing to a certain standard. The court found that it was not logical to impose a duty on those homeowners who shovel sidewalks in compliance with municipal bylaws because homeowners would avoid liability by simply not shoveling the sidewalk. There are significant policy reasons against recognizing a duty of care for sidewalk shoveling homeowners as the potential loss of assistance with snow removal would likely cause more danger rather than less.

Claims handlers should investigate early on whether their sidewalk adjacent insured homeowner has a duty of care to pedestrians using that sidewalk. In cases involving an insured who shoveled an adjacent sidewalk in compliance with a municipal bylaw this case is good authority to remove your insured from the action.

Case summary by Laura Miller