Canada: Municipality’s Liability For Sidewalks Greater In High Traffic Areas

Municipality's Liability for Sidewalks Greater in High Traffic Areas In a recent judgment of Justice Cavarzan of the Ontario Superior Court of Justice, the court considered a municipality's duty under section 44 of the Municipal Act, 2001, (the "Act ") relating to sidewalk maintenance. At issue was a claim for damages resulting from a pedestrian trip and fall accident that was caused by an uneven sidewalk. The decision is interesting for its discussion of a higher standard expected of a municipality in maintaining its sidewalks within a high traffic area. Please click here for the full decision.

The Facts

Early on the summer morning of July 19, 2007, the plaintiff tripped and fell over a height differential between two sidewalk slabs while hurrying to catch a bus. The plaintiff sustained a crack in her tibia shinbone and two loose front teeth. The plaintiff's estimate of the height differential where she tripped was one inch or more.

The Legal Analysis

In determining whether the municipality was liable for the plaintiff's injuries, the court considered whether the sidewalk was in a state of disrepair; if so, whether the state of disrepair caused the injuries; and whether the municipality could rely on any defence to shield it from liability. The Court considered section 44(1) of the Act, which provides that a municipality has a duty to keep its sidewalks in "a state of repair that is reasonable in all circumstances."

There was no objective evidence of the height differential at the location of the fall available to the Court. Neither the municipality nor the plaintiff measured the height differential of the uneven sidewalk following the incident. Reluctant to rely solely on the plaintiff's estimate of the height differential, the Court inferred that the height differential of the sidewalk crack was at least an inch or more based on the municipality's sidewalk repair procedures.

The municipality's procedure was to grind a sidewalk crack with a height differential of 1 inch or less down to an even level. Anything above 1 inch in height was repaired with asphalt to make a ramp. There was evidence that the sidewalk in the area of the fall had been repaired with asphalt sometime prior to the plaintiff's fall, though the repair was described by the court as "shoddy". On that basis, the Court held that the height differential was at least one inch or more.

The Court noted that the prevailing law was that sidewalk height differentials greater than 3/4" constituted non-repair. Furthermore, although a height differential of one and a half to two inches was held to constitute a reasonable state of repair in the case of Stojadinov v Hamilton (City), 1988 CarswellOnt 5061, the court was of the view that this was specific to a set of facts where the municipality was unaware, prior to the accident, of the uneven sidewalk. In this case, the municipality was deemed to be aware of the uneven sidewalk given its attempt to fix it sometime prior to the accident. As such, the Court found that the height disparity in this case constituted an unreasonable state of repair in the circumstances.

The Court turned next to the question of contributory negligence. The Plaintiff was rushing to catch a bus and did not pay attention to where she was walking when the accident occurred. This was compounded by the fact that she was no stranger to the area having walked over the crack on her daily commute, and she knew it was there. The Court attributed 25% contributory negligence to the Plaintiff as a result.

The Court then considered whether the municipality could rely on a lack of knowledge of the disrepair pursuant to Section 44(3) of the Act to shield it from liability. Given that the municipality had attempted to fix the sidewalk crack prior to the plaintiff's accident, it was not in a position to argue as a defence that it did not, or could not have known about the sidewalk's state of disrepair.

With respect to the municipality's section 44(3)(b) defence that it took reasonable steps to prevent the sidewalk from falling into disrepair, the Court held that it did not. Although the Court considered the municipality's policy of conducting annual sidewalk inspections to be reasonable, the Court had its doubts as to whether such a policy was actually being implemented.

Interestingly, after finding that the municipality had no statutory defence available to it, the Court noted:

The sidewalk in question is in a high pedestrian traffic area, a fact acknowledged by the witness Paul McShane. The intensity of pedestrian traffic is a factor, in my view, in assessing the adequacy of the defendant's response in dealing with defects and trip hazards.

While the decision does not go into any detail, this would appear to be a comment on the section 44(1) duty to keep sidewalks in "a state of repair that is reasonable in the circumstances," including its character and location.

Damages were assessed at around $100,000.


This decision addresses the factors a municipality should consider when determining how to meet its Municipal Act duties to keep sidewalks safe for pedestrians. Although the Act provides a municipality with defences to shield it from liability following the injury of a pedestrian, municipalities must be ready to show that the maintenance system in place is reasonable and that it is followed. Furthermore, in areas of high traffic, a higher standard of care is required.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions