The Case of Sidewalk Snow Removal

Today we have a smaller case for you.  Small but I think nonetheless interesting.  It is the case of Sidewalk Snow Removal, or to use its correct legal name, the case of R. v. Gutovich.

This case concerns a Mr. Harold Gutovich of Vancouver, British Columbia and the condition of a sidewalk in front of a home he owned in that city on one particular day in January 2022.

This case was decided in the Supreme Court of British Columbia in October 2023, but the subject-matter the case dealt with came into play almost two years earlier.

In January 2022, in the City of Vancouver, someone noticed that a sidewalk in front of a home on West 16th Street was snow covered.  This was an issue because the City of Vancouver had a bylaw which imposed certain legal duties on people who owned or occupied lots of land with sidewalks adjacent to them. 

To be precise, section 76 of Vancouver’s Street and Traffic By-law stated as follows:

“The owner or occupier of any parcel of real property shall, not later than 10:00 a.m. every day, remove all snow and ice from any sidewalk adjacent to such parcel for a distance that coincides with the parcel's property line and for the full width of the sidewalk.”

Now, some may find it unfair that a private homeowner is expected to shovel snow off a sidewalk that they don’t even own (after all it is a public sidewalk), but it is in fact a common bylaw that many communities in Canada have.  The usual rationale for such bylaws is that there are so many kilometres of public sidewalks everywhere that the governments of cities and towns simply don’t have enough staff, equipment, or funds to remove snow from all of them in the winter, and so they end up passing local bylaws assigning this duty to clean sidewalks to the nearest landowner.  And this was indeed the approach that Vancouver adopted with its bylaw and, if a person failed to carry out this duty, the bylaw provided that the individual would be liable to a fine and could also potentially have the sidewalk cleaned by the city at their expense.

Presumably, the person who observed the uncleaned sidewalk in front of this Vancouver home was aware of this bylaw and decided to report the matter, because someone ended up phoning in a complaint to the city.  In response to the complaint, Mr. Gill, an inspector contracted by the City of Vancouver, was tasked to investigate.

Mr. Gill attended the home in question on the morning of January 9th, 2022, shortly after 10am and observed the sidewalk in front of the property still had snow on it.  He took several photographs of the sidewalk.  Later, the owner of the property, Mr. Gutovich was charged with violating section 76 of the by-law.

The charge went to trial in the Provincial Court of British Columbia in May 2023.  The matter was dealt with by a Judicial Justice of the Peace (a JJP), a judicial officer who, amongst other duties, is assigned to preside over trials and hearings that are less serious in nature and do not require a judge.  Interestingly, according to the record, it appears that Mr. Gutovich did not appear at the trial and the only evidence presented was put forward by the prosecutor, the Crown attorney.

At trial, the prosecution case consisted entirely of the testimony of Mr. Gill and the photographs he had taken.  The Crown’s position was that, as the photographs showed, there was still snow on the sidewalk in question and therefore the landowner had not complied with the bylaw and should be found guilty.

However, the JJP was not convinced and commented that she could see from the photographs that at least some snow had been shoveled away, because the level of snow on the sidewalk was lower than other areas surrounding it.  She pointed out that the bylaw’s wording only stated that a landowner had to “remove” snow from the sidewalk, not “clear” it all the way down to the pavement or concrete.  She then asked the Crown attorney if there was any caselaw that would be of assistance in interpreting exactly what “remove” meant in the city’s bylaw and allowed them to go search for some while the trial was adjourned for lunch.

When the trial resumed after lunch, the Crown attorney was not able to present any caselaw showing that the word “remove” found in the bylaw meant a person had to entirely clear a sidewalk all the way down to the concrete or pavement.  Accordingly, the JJP found that, since the meaning of the word “remove” in the bylaw was ambiguous, she would decide in favour of Mr. Gutovich.  She found the photographs showed that, although the sidewalk was not absolutely clear of snow, a significant amount of snow had been removed and therefore Mr. Gutovich had not violated the bylaw.  She also suggested that, if the City of Vancouver wanted sidewalks to be kept absolutely clear of snow, they might want to change the wording of their bylaw.

Not content with this outcome, the prosecution appealed the case to the next higher level of court and in the fall of 2023 the appeal was heard by the Supreme Court of British Columbia.  Again, Mr. Gutovich didn’t attend the hearing, and only the Crown attorney presented arguments.  In their presentation, the Crown attorney asserted the lower court had made a number of legal and factual errors which justified overturning its decision and convicting Mr. Gutovich of the bylaw offence.

Unhappily for the Crown, the Supreme Court of BC declined to overturn the ruling.   The Supreme Court justice ruled that he did not see grounds for overturning the decision of the Judicial Justice of the Peace, and so Mr. Gutovich was still able to avoid a fine despite the Crown attorney’s best efforts.

SOURCES:

City of Vancouver, By-law No. 2849, Street and Traffic By-law [Consolidated to January 1, 2024]. https://bylaws.vancouver.ca/2849c.PDF

City of Vancouver. (n.d.). Winter maintenance on streets and sidewalks. City of Vancouver. Retrieved February 17, 2024 from https://vancouver.ca/streets-transportation/snow-removal-from-city-streets.aspx

Halliday, I. (2023, November 3). Crown's attempt to enforce Vancouver snow removal bylaw dismissed on appeal. CTV News. https://bc.ctvnews.ca/crown-s-attempt-to-enforce-vancouver-snow-removal-bylaw-dismissed-on-appeal-1.6631078

Lazaruk, S. (2023, November 4). Vancouver homeowner wins fight against city hall on snow clearing bylaw ticket. Vancouver Sun. https://vancouversun.com/news/local-news/vancouver-homeowner-wins-fight-against-city-hall-on-snow-clearing-bylaw-ticket

R. v Gutovich, 2023 BCSC 1938 (CanLII). https://canlii.ca/t/k0z66

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