Crown's attempt to enforce Vancouver snow removal bylaw dismissed on appeal

Snow-covered houses and the downtown skyline are seen with the north shore mountains in the distance after 21 centimetres of snow fell overnight, in Vancouver, on Thursday, December 30, 2021. THE CANADIAN PRESS/Darryl Dyck

When a provincial court judge ruled that a Vancouver homeowner had not violated the city's snow removal bylaw – even though there was snow visible on the sidewalk in photos submitted as evidence – Crown prosecutors appealed to the B.C. Supreme Court.

They lost.

In a decision issued last month but published online Friday, Justice Lauren Blake found the trial judge had not erred in her interpretation of the bylaw or the facts of the case.

At issue is the state of the sidewalk outside 1121 W. 16th Ave. on the morning of Jan. 9, 2022.

Homeowner Harold Gutovich did not attend either the initial provincial court trial or the appeal hearing, according to Blake's decision.

'REMOVED' VS. 'CLEAR'

At the initial trial, the Crown presented four pieces of evidence: photographs taken by a building inspector on the day in question, a state of title certificate for the property, a tax attribute report for the property and an aerial view of the property.

Prosecutors asked the lower-court judge to convict Gutovich of violating the snow removal bylaw based on this evidence, but she declined to do so, finding that they had not proven beyond a reasonable doubt that the bylaw was breached.

The city's bylaw reads: "The owner or occupier of any parcel of real property shall, not later than 10 a.m. every day, remove 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."

While the Crown argued that the presence of any snow on the sidewalk was a violation, and the photos clearly showed snow on the sidewalk, the trial judge found the photos also showed that some snow had been removed.

"She concluded that the photographs presented 'very clearly show me the snow has been removed,' and that no photographs, nor evidence, had been tendered to show the sidewalk was not safe," Blake's appeal ruling reads.

The trial judge's conclusion was, essentially, that although the bylaw says snow must be removed, it does not say that sidewalks must be rendered completely free of snow and ice. That ambiguity – which she noted the city may want to address by updating the bylaw – left her with a reasonable doubt as to whether the bylaw had been violated.

Notably, the photos of the property presented as evidence are not included in the online decision.

APPEAL DISMISSED

In their appeal, prosecutors argued that the lower-court judge had improperly taken "judicial notice" of the snow removal that had occurred and the lack of footsteps in the snow in the photos. They also argued that she had improperly failed to take notice that snow or ice on a sidewalk constitutes a safety hazard.

Blake rejected these arguments, finding that the trial judge had made reasonable inferences based on the photos she was provided.

If it intended to argue that the amount of snow seen on the sidewalk in the photos was unsafe, the Crown should have presented evidence to that effect, the supreme court judge ruled.

"The issue of whether the sidewalk was safe on the morning of Jan. 9, 2022, in my opinion, was properly something for the Crown to tender evidence on, and they did not do so," Blake's decision reads. "I do not accept it was a palpable and overriding error for the Judicial Justice to refuse to take judicial notice that the amount of snow depicted in the exhibit was unsafe."

Prosecutors also argued that the trial judge had incorrectly interpreted the bylaw, claiming that "any amount of snow or ice on a sidewalk constitutes a safety hazard," and that proper interpretation of the bylaw requires that all snow and ice be removed, "not just some indeterminate amount."

"Their position is any other interpretation of the bylaw would render it ambiguous and unenforceable," Blake's decision reads.

"With respect, I cannot accede to this argument. The bylaw requires the owner or occupier of a property to 'remove snow and ice from any sidewalk.' It does not require the clearing of all snow and ice from any sidewalk. Further, even the City of Vancouver’s website, although it refers to 'clear' instead of 'remove,' does not state it is necessary to require the clearing of all snow and ice off a sidewalk. While I accept that the purpose of the bylaw is the safety of the public, I cannot accept that the proper interpretation of the bylaw is that any amount of snow or ice on a sidewalk constitutes a safety hazard."

Accordingly, Blake dismissed the appeal.