Every winter and spring, pedestrians in Ottawa and across Eastern Ontario are injured after slipping and falling on municipal sidewalks due to icy or snowy conditions. Under the Municipal Act, 2001, S.O 2.001, c. 25, municipalities owe a duty to ensure that its sidewalks and roads are kept in a reasonable state of repair.
According to s. 44(1) of the Municipal Act:
The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Section (44)(2) further states that if a municipality does not comply with this section, it will be liable for all damages any person sustains, subject to the Negligence Act.
Under the Municipal Act, “highway” is defined as: “a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway”. The courts have previously found that municipal sidewalks fall under the definition of “highway” (see R. v. Wassilyn, 2006 CarswellOnt 10060).
However, a municipality’s duty is far from absolute. Under the Municipal Act, municipalities have several defenses under s. 44(3). This section states that a municipality will not be liable for failing to keep a highway or bridge in “a reasonable state of repair” if:
- The municipality did not, or could not have reasonably been expected to, know about the state of repair;
- The municipality took “reasonable steps” to prevent the default; or
- The municipality followed applicable minimum standards of repair established under s. 44(4) of the Municipal Act.
In addition, under s. 44(9) municipalities are not liable for personal injuries caused by snow or ice on sidewalks unless there has been a case of “gross negligence”.
What is “Gross Negligence”
The Act does not define “gross negligence” and a review of the case law reveals that the courts have not adopted a precise definition. In Holland v. Toronto (City), a 1926 Supreme Court of Canada decision, “gross negligence” was described as “very great negligence”.
The Ontario Court of Appeal, in its 2010 decision Crinson v. Toronto (City), noted the lack of a precise definition:
A review of jurisprudence discloses that the courts have not defined gross negligence with any degree of linguistic precision. However, it is clear that there must be more than a breach of a duty of care; the breach must rise to a level that can properly be described as gross negligence. Although a precise definition may be elusive, courts are nonetheless equipped to decide the issue of gross negligence.
The Court went on to say that the determination of gross negligence depends on the facts of each case which is “interpreted through the prism of common sense”. The Court further stated that gross negligence does not require proof of willful, wanton, or flagrant misconduct.
The courts have been clear to state municipalities are not insurers of safety; while they must take reasonable steps to maintain sidewalks of dangerous conditions, failing to do so does not mean that a municipality will be liable to every person who falls and injures themselves (Sutherland v. North York (City). Municipalities will not be held to a standard of perfection (Gertzbein v. Vaughan (City)). The onus is on the person injured to show that the municipality’s failure to maintain the sidewalk amounts to gross negligence (Richer v. Elliot Lake (City)).
Where the Courts Have Found Gross Negligence
A review of the jurisprudence reveals some of the factual situations that a court may consider to be gross negligence. In Dorschell v. Cambridge (City), the court stated that not having a systemic policy for snow and ice removal is evidence of “serious negligence”. In Thum v. Elliot Lake (City), the municipality was found to be grossly negligent for not having a regular system of sidewalk inspections. In Costerus v. Kitchener (City), the court stated that if a municipality fails to maintain, or completely ignores, an icy sidewalk in a busy area of the municipality, this amounts to gross negligence. These are only some of the cases where municipalities have found to be grossly negligent.
10-day Notice Period
It is important to note that potential claims against municipalities are subject to a 10-day notice period under s. 44(10) of the Municipal Act. However, if a judge finds that there is a “reasonable excuse” and the municipality has “not been prejudiced”, then a plaintiff will not be barred from bringing an action.
If you have been injured on municipal property in eastern Ontario, contact one of our personal injury lawyers today for a free consultation: