In considering the issue of gross negligence by a city, the court looked at whether it was reasonably foreseeable that members of the public would enter the premises during the winter season. If it is, the city must provide a reasonable level of winter maintenance, post notice that maintenance had ceased, or block access to the premises. However, the court will also look at whether enough snow has fallen that a reasonable observer would conclude that the premises are no longer in use and/or not being maintained and, at that point, the city may reasonably cease all maintenance on the premises as there would be no good reason to believe that anybody will use it.
Released August 23, 2016 | Full Decision [CanLII]
This case arose from a slip and fall incident that took place on December 18, 2011 when the Plaintiff, Linda Franklin, was walking with her husband and their two dogs across the parking lot of Delki Dozzi Park (“DDP”).
The City of Greater Sudbury was responsible for maintaining DDP, which it did during the summer, spring, and fall. In the winter, however, the park’s maintenance was restricted as a result of the reduced use of many of its features; therefore, the subject parking lot was not maintained.
In considering the issue of negligence, the Court found that the Plaintiff entered DDP through its west parking lot which was located several hundred meters from the walking trail on the premises, but she did not intend to actually walk the recreational trail; therefore, it was found that section 4(1) of the Occupiers’ Liability Act did not apply and that she did not willingly assume the risks associated with utilizing recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity and without payment of any fee.
As to issue of whether the City of Greater Sudbury took such care as was in all the circumstances of the case reasonable to see that the Plaintiff was reasonably safe, the Court found that it was reasonably foreseeable that members of the public, including the Plaintiff, would cross along the west parking lot of DDP to gain access to various portions of the park which still remained in use by the public during the winter season. As such, it was incumbent on the City to do the following:
- provide a reasonable level of winter maintenance in the parking lot;
- post notice that maintenance had ceased and thus hazardous snow and ice conditions may exist and that users enter at their own risk; or
- block access to the parking lot.
Nevertheless, the Court further stated, “[t]here will come a point each winter when enough snow has fallen that a reasonable observer would conclude that the western portion of the park is no longer in use and that the parking lot is not being maintained. At that point, which will vary from year to year depending on weather conditions, the City may reasonably cease all maintenance of the [west parking lot] on the basis that there is no good reason to believe that anybody will use it and that its closure will be reasonably apparent to all”. The Court held that this was not the case during the time period at issue as there was very little snow on the ground. It would consequently not have been clear to the Plaintiff, or to a reasonable observer, that the maintenance of the west parking lot had ceased. The Court thus found that the City failed to act reasonably in the circumstance.
Read the full decision on CanLII
