The Court of Appeal has affirmed a Superior Court decision which determined that Starbucks assumed responsibility and control and became an occupier of a portion of a municipal sidewalk.
In McKay v. Starbucks, a Starbucks customer was exiting a Starbucks patio onto an adjacent sidewalk when she fell and suffered injuries. The court noted that an ‘occupier’ under the Occupiers Liability Act is either (a) someone in physical possession of premises (Starbucks was not in physical possession of the sidewalk) or (b) someone who has “responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”. The Starbucks in question is located at the intersection of Queen and Hammersmith in Toronto’s ‘Beaches’ neighborhood. The shop had a patio on the east side with an exit directly onto the Hammersmith sidewalk.
The court found that Starbucks had assumed responsibility and control over the sidewalk as a result of the following:
- Starbucks expected customers would use this entrance to Starbucks out of convenience by parking across the street on Hammersmith and would cross the street to enter off Hammersmith thereby forcing them to utilize this stretch of sidewalk;
- Starbucks set up the entrance this way for its commercial benefit;
- The sidewalk was used by a group of people (Starbucks customers) only for the purpose of entering Starbucks and this ‘use’ of the sidewalk was created by Starbucks and for Starbucks benefit; ;
- Starbucks customers had no choice but to use that portion of sidewalk when they used the Hammersmith entrance;
- Most users of the sidewalk in the morning were Starbucks customers such that it was ‘almost’ exclusive use by Starbucks customers;
- Starbucks assumed some control of the sidewalk area with a protocol for employees to monitor the condition of the pathway and clear, salt and sand that sidewalk area;
As a result they were an occupier of the sidewalk and had duties to customers to take reasonable steps to ensure they could enter the premises safely.
This case does not stand for the proposition that a business is responsible for all adjacent sidewalks. It is only where a business has behaved in a way that they have assumed control of the sidewalk that they will bear some responsibility for the condition of the sidewalk. It is worth bearing in mind that Starbucks set up their premises in a way that would create significant traffic on the sidewalk which was for its commercial benefit. In addition, as a general rule, once a person (or business) starts to manage a sidewalk by cleaning, inspecting, maintaining there is significant momentum created to a finding that they are an occupier.
See MacKay v. Starbucks Corporation, 2017 ONCA 350 (CanLII)