Slip and Falls on Municipal Property and Private Property

Municipal Property

Slip and Falls on Municipal Property and Private Property

If you are ever involved in a slip and fall on municipal property within the province of Ontario, then it’s important to remember that under section 44 of the Municipal Act, 2001, S.O., c. 25, it is the responsibility of the city to keep its highways, which include sidewalks, in a state of repair that is reasonable in the circumstances, including the character and location of the site. If it defaults in that obligation, it is liable for all damages you sustain because of that subject to the Negligence Act, R.S.O. 1990, c. N.1.

Slip and Falls on Municipal Property and Private Property

Section 44(3) of the Municipal Act states that a municipality is not liable for failing to keep its sidewalks in a reasonable standard care if, the following:

  1. it did not know and could not reasonably have been expected to have known about the state of repair of a highway;
  2. it took reasonable steps to prevent the default from arising; or
  3. at the time the cause of action arose, minimum standards applied to the highway and to the alleged default and those standards have been met.

Therefore, if the aforementioned three conditions aren’t applicable to your slip and fall case on municipal property in Ontario, then the municipality will be liable for all damages you sustain, again, subject to the Negligence Act.

Lastly, section 44 (9) of the Municipal Act states that except in a case of gross negligence, the municipality is not liable for personal injury caused by snow or ice on the sidewalk.

The Law

The law applicable to the potential liability of the defendant city based on its alleged gross negligence because of this failure to reasonably provide winter maintenance for its sidewalks was canvassed in detail by Tranmer J in a case entitled Ryan v. Sault Ste. Marie (City) 2008 CarswellOnt 8928, 55 M.P.L.R. (4th) 191, which was confirmed in the Ontario Court of Appeal at 2009 ONCA 344.

The Supreme Court of Canada in a case entitled Holland v. Toronto (City) (1927) 1926 CanLII 10 (SCC), SCR 242 SCC described the term gross negligence as “very great negligence”

Vital Factors to Consider in Determining Gross Negligence

Circumstances giving rise to a duty to remove a dangerous condition, including, but not limited to, the following: 

  1. the notice, actual or imputable, of its existence, and the extent of the risk which it creates; and
  2. the character and the duration of the neglect to fulfill that duty, including the comparative ease or difficulty of discharging it.

These are elements that vary in indefinite degree and are important, if not vital factors in determining whether the fault attributable to the municipal corporation is so much more than merely ordinary neglect that it should be held to be very great or gross negligence.

Understanding Gross Negligence through the Prism of Common Sense

The Ontario Court of Appeal in a case entitled Crinson v. City of Toronto 2010 ONCA 44 confirmed that gross negligence does not require proof of misconduct that is willful, wanton or flagrant. The Court held that to a great extent, the determination of gross negligence depends on the facts of each case. It depends on the application of a less precise definition of gross negligence, interpreted through the prism of common sense. If the municipality permits a slippery, icy sidewalk in a busy area of the city to remain unprotected or ignores it altogether and someone is injured, that would constitute gross negligence.

The Diverse Circumstances Giving Rise to a Finding of Gross Negligence

Circumstances giving rise to a finding of “very great negligence” are as diverse as the weather conditions, municipal policies, equipment quality and quantity and condition, operator expertise, inspection particulars and other enumerable and unpredictable factors. The Court must assess the actions of the municipality in the circumstances of each case, which was emphasized in the case entitled Thum v. Elliot Lake (City) (1999) M.P.L.R. 9#d) 154 (Ont.S.C.)

If you want to learn more about the chronological steps in pursuing your tort action, then please click the “link” to read my blog entitled “What are the Steps in a Tort Lawsuit for Personal Injuries?”.

Private Property and the Occupiers’ Liability Act

Private Property and the Occupiers Liability Act

If the slip and fall occurs on private property, then the Occupiers’ Liability Act, RSO 1990, c. O.2, is applicable, as it is concerned with the tort responsibility of those who control land to those who enter onto their property. The provisions of the Negligence Act, R.S.O. 1990, c. N.1. apply with respect to the causes of action to which Occupiers’ Liability Act applies.

Who is an Occupier?

The determination of who is an occupier is not dependent on actual ownership of the premises or property, but rather who is in control, or has immediate supervision, of the premises or property, and complete or exclusive control is not necessary.

Relevant Statutory Provisions

The relevant statutory provisions of the Occupiers’ Liability Act, RSO 1990, c. O.2 are in relation to the duty of care owed by an occupier to person entering on his or her premises, which are found in section 3 as follows:

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.  R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. R.S.O. 1990, c. O.2, s. 4 (1).

Therefore, further to the Supreme Court of Canada case entitled Waldick v. Malcom [1991] 2 SCR 456, the Occupiers’ Liability Act does away with the difference between invitees and licensees and puts both invitees and licensees into the common defined class of visitor. Secondly, and more importantly, the statute now imposes an affirmative duty upon occupiers to take reasonable care for the safety of people who are permitted on the premises.  This change is most marked because it does away with the old common law position that an occupier was only liable for unusual dangers of which he was aware or ought to have been aware.  Under the old law the occupier could escape liability by giving notice.  Now, the occupier has to make the premises reasonably safe.  However, this does not absolve you, as the visitor, of your duty to take reasonable care, but it does place an affirmative duty on each and every occupier to make the premises reasonably safe. 

If the occupier fails to make his or her premises reasonably safe, by for example, failing to put salt on a walkway leading to the main entrance after it rained for several hours and the temperature dropped below freezing temperatures, and as a result, you slipped, fell, and sustained serious and permanent injuries and impairments, then the occupier will be liable to you for the damages you sustained, unless section 3(4) applies.

If you want to learn more about the chronological steps in pursuing your tort action, then please click the “link” to read my blog entitled “What are the Steps in a Tort Lawsuit for Personal Injuries?”.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.

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