A municipal sidewalk at the entrance to a patio in front of a coffee shop… Can the coffee shop also be an occupier?

Many coffee shops nowadays not only have seating areas inside, but also have patio-like settings immediately outside its shop, with bistro sets including tables and chairs. This is a smart way to attract more customers, especially in the summer, but albeit one that requires more maintenance on the part of the coffee shop staff. If you slip and fall inside the shop, it would be easier to determine who is liable for your injuries. It is likely, at least in part, the coffee shop, provided you have evidence of negligence such as failure to supervise, clean up spills and/or warn customers about a wet floor. But what happens if you fall outside of the coffee shop, specifically, on an ice-covered municipal sidewalk located at the entrance of the coffee shop. Who is then liable: the city, or the shop?

To answer this question, one must first determine who the occupier is in the given circumstance. Section 1 of the Occupiers’ Liability Act, R.S.O. 1990, c O.2 defines an occupier as:

(a) a person who is in physical possession of premises, or

(b) a person 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,

Determining the occupier is not always obvious, as there could be more than one occupier of a premise, as is the case in the above scenario. The Ontario Court of Appeal weighed in on this type of situation in MacKay v Starbucks Corporation, 2017, ONCA 350.  In this case, although the sidewalk is technically the City of Toronto’s property, Starbucks was also considered to be an occupier.

In Mackay, the Starbucks has an outdoor patio that abuts the municipal sidewalk along Hammersmith road. The patio is enclosed by a fence that includes a 3 to 4 foot opening, which joins the patio and the sidewalk. The trial judge found Starbucks to be an occupier of that portion of the sidewalk. The appellant (Starbucks) appealed this decision.

The trial judge rendered her decision based on the following facts:

1. Many customers used this sidewalk to enter the store through the patio and exit using the same path;
2. Starbucks created a pathway from its side door through the patio and out over the sidewalk, which was used by many of its customers and only by its customers;
3. Customers only used the sidewalk to access Starbucks;
4. The use of the sidewalk that Starbucks created was unrelated to other uses of the sidewalk in the ordinary course;
5. Starbucks “controlled the access route” of its customers entering and exiting the store; and
6. Starbucks had “sufficient control” of the area of the sidewalk adjacent to the fence to ensure the safety of its customers using that area to come in and out of the store.

In order to conclude that Starbucks is an occupier, the Ontario Court of Appeal underlines that Starbucks had to have taken steps to come within clause (a) or (b) of the definition “occupier” by “sharing sufficient possession or control with the municipality”.  Based on this evidence, the Court of Appeal upheld the trial judge’s decision and confirmed that Starbucks is an occupier in this case as it shared sufficient possession or control with the municipality of the sidewalk (paragraph 17).

The Court of Appeal clarifies the public policy objectives of the Occupiers’ Liability Act, in that its purpose is to “impose liability on those who, by their conduct, assume control over and responsibility for a portion of the immediately adjacent sidewalk and the safety who use it” (paragraph 38).

By its conduct, Starbucks assumed control and responsibility of that portion of sidewalk, therefore exposing itself to liability. Although offering outdoor patio amenities is a great way of ensuring customer service, coffee shop owners and managers should keep MacKay v Starbucks Corporation in mind.

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