City opts to revert to feudal measures to get icy sidewalks cleared

TheStarPhoenix.com
Feb. 26, 2015

We all know how irritating it is to be told to do something we already were doing voluntarily.

That’s how I feel about clearing snow off the sidewalk in front of our property. We always have cleared the sidewalk because it pleases us, because it’s neighbourly, and, mostly, because the city won’t do it.

Now, the city says we have to clear the sidewalk, or else. Property owners who fail to do so are subject to a $100 fine on first offence. For repeat offenders, fines go up to $2,000. Now, when we clear the sidewalk, we’re not being good neighbours anymore. We are more like feudal serfs toiling under the raised sword. Correct me if I am wrong, but I don’t recall any city councillors elected on a platform to bring back feudalism.

Sidewalks, after all, do not belong to adjacent property owners. They are city property, as much as the streets and bridges are city property. No one expects property owners to maintain streets and bridges. How, then, can we be compelled by force of law to maintain sidewalks?

It is the province that invites it. Municipalities operate entirely under provincial law, which, among other things, specifically gives municipalities authority to make us clear their sidewalks. We should be grateful, perhaps, that we are not yet made to clear snow off the streets as well, and maybe to fill potholes, too. In light of the precedent established by sidewalk-clearing policy, we have to wonder why not.

A legal case still could be made, I think, that the city and province exceed their authority here, by a country mile. Much as they might find it convenient, they cannot make us work for nothing on land that is not our own. This is Canada, not Tsarist Russia.

Ontario’s Court of Appeal found there is no common law duty for property owners to remove snow from adjacent sidewalks, regardless of what buck-passing bylaws the municipality might impose. In that case, a woman slipped on a sidewalk in a residential neighbourhood in Vaughan, north of Toronto. She sued the municipality, which in turn sued the homeowner whose property fronted the slippery sidewalk. The municipality argued that its snow-clearing bylaw, not unlike Saskatoon’s, made the homeowner responsible.

Pooh, said the court: “There is no common law duty on the owner of property to clear snow and ice from public sidewalks adjacent to the property. The snow and ice accumulating on public sidewalks are the legal responsibility of the municipality.”

In this case, the question was one of legal liability. The snow-clearing bylaw itself was not under attack. Even so, the court brushed it off like lint from a tablecloth. The clear message was that governments cannot use legislation to evade their responsibilities as property owners. That would apply as much in Saskatchewan as in Ontario, I would hope.

There also is the little matter of the Constitution. Which part of the Charter of Rights and Freedoms applies here, I do not know, but it must say somewhere in there that the feudal system is over. Lords and monarchs are expected to maintain their own properties now, and without dragooning others into doing it for them. No court in the land is going to endorse dragooning.

Unfortunately, the Saskatoon bylaw, and others like it elsewhere, probably will never be tested. It’s easier and cheaper for the accused to pay the fine than to go to court. Easier still to clear the sidewalk in the first place, unless you’re the city, that is, and you can make someone else do it.

Too bad the city can’t fine itself. Long after downtown merchants have cleared and scraped the sidewalks down to bare pavement, alleyway entrances, where the city cannot pass off responsibility, are more like the treacherous Khumbu icefall at the base of Mount Everest. I wouldn’t think the city has the nerve to fine anyone.