Does the city of Whitehorse have a responsibility to stop citizens from slipping on the ice?
Yes — but only if they’re walking on a sidewalk.
And what if it’s a sidewalk crossing over a laneway?
That’s the question being asked in a landmark eight-year-old slip-and-fall case currently before the Yukon Supreme Court.
In February of 2000, Barbara Schan was walking along the west side of Second Avenue. Crossing an alley adjacent to the TD Bank, she slipped on a patch of ice and fell to the ground, seriously injuring her ankle.
If she had slipped just a few feet further, she could have sued TD Bank for failing to maintain the sidewalk in front of its business.
However, given that it was an alleyway, she had essentially fallen in a no-man’s-land of sidewalk snow clearance.
In 2000, municipal bylaw held that sidewalk areas needed to be cleared by the owners of the property that the sidewalk fronted. However, the law made no provision for sidewalks that crossed over alleys or laneways.
“This happened on a sidewalk that crossed over a laneway, it didn’t front on anybody’s property so nobody was cleaning it,” said Jim Tucker, Schan’s lawyer.
Only a matter of months after Schan’s fall, the city changed its bylaw, ruling that property owners adjacent to laneways were now required to clear away snow that had gathered in sidewalks crossing those laneways.
“They’ve basically shifted the burden onto the property owners,” said Tucker.
The bylaw change also freed the municipality from any further lawsuits.
“It’s conceivable that (someone will slip) again, but it won’t happen like this again,” said Tucker.
Schan can still seek damages from the city for her fall, but her case weighs heavily upon the definition of what exactly she slipped on.
Since Schan slipped on a sidewalk crossing a laneway, it could either be considered a highway or a sidewalk.
“If it’s a highway we have to prove gross negligence … a high bar to get over,” said Tucker.
“If it’s a sidewalk, and that’s what the judge is going to determine, then I’d say we don’t have to prove gross negligence,” he said.
The city has defended itself by saying, “the plaintiff knew or ought to have known of slippery conditions and failed to take any appropriate steps, to ensure her own safety.”
An ice-related slip-and-fall case is not unprecedented in Canadian history, but it is extremely rare.
In 1897 a Queen’s medical student argued a similar case against the city of Kingston after injuring her hip, causing her to be “laid up in the hospital for 24 weeks.”
The case was dismissed.
Since the Schan case is exceptional, it is not opening the door towards a whole series of other ice-slipping lawsuits directed at the city, said Tucker.
“You cannot have the municipality getting sued every time someone falls down,” he said.
“Ice and snow, it’s a part of our lives — and it’s slippery stuff.”