Canada: City Not To Blame For Snow Slide Accident

Last Updated: September 12 2018
Article by Brian Sunohara

Recreational activities usually pose some risks. Injuries can happen, but that does not necessarily mean someone is legally to blame.

In Martin v. Barrie (City), 2018 ONCA 499, the Court of Appeal dismissed an appeal by the plaintiffs in a lawsuit arising from an accident on a snow slide.

Facts

In February 2011, the City of Barrie hosted a Winterfest and Festival of Ice event. One of the activities was a snow slide. It was intended to be used primarily by children, but adults were also welcome to use it.

The main plaintiff's two children went down the slide and were not injured. The plaintiff then went down the slide. Near the bottom, she dug in her heels to slow herself, and her buttocks struck a hardened piece of ice. She felt immediate pain.

Trial Decision

In his trial decision, Justice Di Luca dismissed the plaintiffs' claim.

Justice Di Luca went over the applicable law. In particular, an occupier has a positive duty to take reasonable steps, in all the circumstances, to make the premises safe. The standard of care does not require perfection.

The presence of a hazard does not necessarily lead to the conclusion that an occupier failed to meet the standard of care. An occupier does not need to remove every possible danger. Justice Di Luca noted that an injury, even a catastrophic one, does not in and of itself establish a breach of the duty of care.

Justice Di Luca found that the plaintiff hit a small piece of ice that had been buried under the snow in the landing area of the snow slide.

However, he was satisfied that the City of Barrie met the standard of care. He found that the City took adequate and reasonable steps to safeguard guests who were using the snow slide.

Justice Di Luca indicated that the snow slide had a gradual slope. It was not steep or tall. Staff were positioned at the top and bottom of the hill, observing and directing the flow of guests. Staff at the bottom of the hill were equipped with a shovel and were instructed to smooth out the landing, as well as fill in patches of snow.

The plaintiff testified that she heard a City employee say "I have to fill this again", referring to filling in a hole in the snow. Justice Di Luca stated that this demonstrated the City's employee was paying close attention to the condition of the landing and was moving quickly to fill in a gap or a patch in the snow as would be expected.

Justice Di Luca did not find the small piece of ice to be a hazard that the City should have been reasonably required to address in order to meet the standard of care.

Appeal Decision

The Court of Appeal rejected the plaintiffs' three grounds of appeal and dismissed the appeal.

The plaintiffs first argued that the trial judge made a palpable and overriding error by concluding that the chunk of ice was "small". The Court of Appeal did not accept this submission. The plaintiff herself testified that the chunk of ice was about four to six inches in size.

Secondly, the plaintiffs argued that the trial judge erred in the inference he drew from the statement of the City's employee regarding filling in the snow again. The Court of Appeal saw no error with the trial judge's conclusion that this statement supported that the City's employee was paying close attention.

Lastly, the plaintiffs submitted that the trial judge erred in his analysis of the standard of care. The Court of Appeal stated that the trial judge did not make an error of any kind, let alone a palpable and overriding error, in his analysis of the evidence and his application of the relevant negligence law principles to the evidence.

Conclusion

Accidents are bound to happen in recreational activities. Those who operate recreational facilities are required to take reasonable steps to reduce the risk of injury.

However, it is impossible to remove every risk, and the courts do not expect perfection.

The trial judge indicated that "sliding down a snow slide is as Canadian an activity as one can imagine". He noted that generations of parents and children have participated in and enjoyed this activity over the years.

Although not stated by the trial judge or the Court of Appeal, placing too heavy a burden on operators of recreational facilities, particularly not-for-profit organizations, could have a chilling effect, leading to fewer activities being made available to the public.

The decision reached by the trial judge, and upheld by the Court of Appeal, is a sound one.

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.

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