| ICSC Legal Database - Cases | Monday, February 22, 1999 05:07 PM |
| Citation: |
| Re: Mohebat v. Loblaws Inc. [1998] O.J. No. 1293 |
| Issue: |
| The issue in this case was whether the sidewalk area where the plaintiff fell was a "common area facility" or |
| whether it was a "Loblaws Improvement" on "Loblaws Land" under the terms of a commercial lease. If it was a |
| "Loblaws Improvement," the sidewalk was excluded from the definition of "common area facilities" and the |
| obligation to maintain and repair the sidewalk was the responsibility of Loblaws as tenant. Otherwise, it was the |
| landlord's responsibility. The court said that exclusivity of use was what determined if a structure, facility or |
| improvement was a "Loblaws Improvement." Receiving areas, delivery ramps, shelving or storage areas, or |
| garden centres were examples of structures or facilities that were Loblaws Improvements because they were for |
| Loblaws' exclusive use. The evidence suggested that both parties treated the sidewalks as common facilities |
| and, accordingly, the landlord had the responsibility was responsible for maintenance and repair of this area. |
| Although the sidewalks were common area facilities, it was reasonable to impose on the tenant the duty to |
| inspect the sidewalk in front of its store regularly and to inform the landlord of any condition that could be |
| dangerous. As the landlord had the primary responsibility for the maintenance of the sidewalk and the major |
| control over it, it was appropriate to apportion the negligence 70% to the landlord and 30% to the tenant. |
| 01697 - Legal Update - Winter 1998 |
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