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A pedestrian walks by a bike locked to a sign post on King St. West in this file photo. Lisa Ferguson said her bicycle was locked to a pole at the northeast corner of Yonge and Bloor streets, but was gone when she returned (Fred Lum/The Globe and Mail)
A pedestrian walks by a bike locked to a sign post on King St. West in this file photo. Lisa Ferguson said her bicycle was locked to a pole at the northeast corner of Yonge and Bloor streets, but was gone when she returned (Fred Lum/The Globe and Mail)

Larissa Katz

It’s not ‘Who took my bike,’ but 'Who really controls the sidewalk?' Add to ...

Larissa Katz is an associate professor at the University of Toronto Faculty of Law. She teaches and writes about property law and theory. She is the author of the paper 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power.

Brookfield Property Partners, the owner of Toronto’s Hudson’s Bay Centre, outraged many residents when its employees removed a bicycle locked to a pole on a public sidewalk in front of its property at the busy corner of Yonge and Bloor streets.

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The bicycle owner, Lisa Ferguson, thought her bicycle had been stolen, only to discover from Brookfield’s security guards that the company had ordered its removal and put it into storage. Ms. Ferguson also found out that this was not the first time Brookfield had removed bicycles from the sidewalk.

At first glance, this seemed to be both an invasion of the private property rights of the bike owner, and an intrusion by a private company into the public sphere (control of public sidewalks). Lisa Ferguson got her bicycle back and money for a new lock. But there are important and unresolved questions about the assertion of private power in the public sphere.

The story we have largely seen in media reports is one of overreach: Brookfield, from this viewpoint, had no business deciding what happens on public sidewalks. As one commentator put it, Brookfield’s “responsibility and their power ends at their property line.” But in fact the distinction between private and public in Toronto, as in most cities, is not at all so crisp. The City of Toronto governs through its employees and licensees. But it also “governs through owners:” private owners are called on to discharge a variety of public burdens, many of which concern public sidewalks.

So private owners such as Brookfield, as well as private homeowners, are in charge to some extent of public spaces: They are responsible for shovelling snow in winter and clearing ice in the parts of the city where mechanical cleaning is not cost-efficient or practicable for city workers. Owners are also responsible for keeping public sidewalks free of encumbrances to pedestrian traffic. This is clearly a public task: owners are to take charge of public spaces for public purposes. In ridding public sidewalks of encumbrances, owners are not meant just to protect access to their own property; they are meant to safeguard the public’s right to move freely along passageways.

What does it mean, then, to “govern through owners?” It means that the state can conscript owners to perform important public services. But responsibility must come with authority: the owner obligated to clean a street or remove encumbrances must have the authority to do what is required.

This does not, of course, tell us whether Brookfield was right to remove the bicycle but it does change the terms of the debate: we should not think of this incident just in terms of private wrongs or the usurpation of public power. Rather we should ask whether Brookfield exceeded its delegated authority with respect to public spaces by removing a bicycle that may not, after all, have presented an obstacle to passersby.

The crucial point is that private owners are not just in charge of private property; they are sometimes in charge of public spaces, too. The pressing question that we should be debating is whether we have delegated too much responsibility and too much authority over public matters to private owners.

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