How Far Does Municipality Liability Stretch? The Case of Martin v. Barrie (City)

by Stieber Berlach | Nov 22, 2018

By Sarah Jane Attardo

On May 28, 2018, the Court of Appeal provided some clarification as to the extent that a municipality can be held liable for personal injuries during festivities that it hosts.

Background

In Martin v. Barrie (City), 2018 ONCA 499, the Court of Appeal reviewed a trial decision that found a municipality had satisfied the standard of care contained in the Occupier’s Liability Act. The appellants (the plaintiffs) were parents who brought their children to the Winterfest and Festival of Ice hosted by the City of Barrie, the respondent (the defendant). At the festivities, there were a number of attractions one of which was a snow slide catering primarily to children.  Two of the children went down the slide and were fine. Their mother followed suit but, as she neared the bottom of the slide, she tried to slow down her sliding by digging in her heels and she sustained a bruise to her tailbone after hitting a small piece of ice protruding from the snow.

The trial judge found that the standard of care for the municipality under the Occupier’s Liability Act was one of reasonableness. The trial judge noted that it would be unfair to impose on municipalities perfection as their standard of care.

The Issues on Appeal

(1) Did the trial judge make a palpable and overriding error by concluding that the piece of ice was “small”?

(2) Did the trial judge err in the inference made by a hearsay utterance regarding the state of the slide’s landing?

(3) Was the trial judge’s analysis the municipality’s standard of care correct based on the evidence?

Analysis

With respect to first issue, the court upheld that the size of the ice not visible to the appellant nor was it larger than her own testimony of “5 to 6 inches”. The judge properly characterized the piece of ice.

On the second issue, the court fairly interpreted the hearsay utterance by an employee.

To answer the third issue, the Court referenced Housen v. Nikolaisen, 2002 SCC 33 to reiterate that the standard of review of negligence cases is palpable and overriding error.  It found that the judge had correctly found that although a more rigorous inspection process may have detected the ice, requiring such a process would place too high of an onus on the City.  The standard was reasonableness, not perfection.

Municipal insurers will remain hopeful that this kind of analysis for “reasonableness” will continue to be applied by the courts, even where the injuries are more serious than a bruised tailbone.