Martin v. Barrie (City), 2018 ONCA 499 (CanLII)

This is an appeal from the decision of Di Luca J., of the ONSC dated January 17, 2017 dismissing this Plaintiffs claim for an injury suffered at the Barrie Winterfest snow slide.  

Date Heard: May 28, 2018 | Full Decision [PDF]

The appellants attended the City of Barrie’s ‘Winterfest & Festival of Ice’ in February of 2011. The event attracts approximately 25,000 entrants including families with children. One of the activities participated in by the appellants was the Snow Slide. The appellant’s children went down the Snow Slide followed by the appellant, Ms. Martin. At the bottom of the slide, Ms. Martin dug her heels into the snow in coming to a stop and her tailbone struck a piece of ice, covered by snow, on the slide. She was injured, suffering immediate pain and to some extent after the accident.

Following a five day trial, Di Luca J., found that Ms. Martin’s injury was caused by the ice on the snow slide. However, the trial judge did not find that the municipality had breached the appropriate standard of care.

I find that in the circumstances of this case, the standard of care was satisfied.  The City of Barrie took adequate and reasonable steps to safeguard the guests using the snow slide at Winterfest. The context is important.  The snow slide is a gradually sloped hill on which patrons slide down on their “bottoms.” While specific measurements were not tendered into evidence, the pictures tendered into evidence suggest that the hill is neither steep nor tall. Guests are not using devices such as sleds or toboggans which would ordinarily be used to add speed to the descent. The evidence suggests that guests come a quick stop at the bottom of the slide.        

The Appellants raised three arguments on appeal.

  1. That the trial judge erred by concluding that the ice chunk was small;
  2. That the trial judge erred by in the inference he drew from the hearsay utterance “I have to fill this again” of an onsite City of Barrie employee heard right after the injury; and
  3. That the appellant’s contest the trial judge’s conclusion relating to the standard of care in that there was no system of regular inspection and maintenance of the run-off area of the slide.

The Court of Appeal (Feldman, MacPherson & Rouleau JJ.A.) rejected each of the appellant’s submissions. First, that Ms. Martin testified she did not see the chunk of ice until after she struck it and described it as four to six inches in size; accordingly the judge’s characterization of small was justified. Second, the spontaneous utterance by the City of Barrie employee demonstrates that an employee was stationed at the bottom of the slide, paid close attention to the condition of the landing and moved quickly to fill defects. Third, that the requirement of establishing a ‘palpable and overriding error’ for questions of mixed fact and law as set out in Housen v. Nikolaisen, 2002 SCC 33 (CanLII) was absent. The analysis and rational by Di Luca J., did not ignore the evidence relating to inspection and maintenance, nor did it ignore the principles with respect to the relevant negligence law as follows:

Staff are positioned at the top and bottom of the hill, observing and directing the flow of guests. Staff at the bottom of the hill are equipped with a shovel and instructed to smooth out the landing and fill in patches in the snow. It is expected that the staff will remove hazards should they become aware of any. The landing area is fenced off and adequately supervised.

Regrettably, Ms. Martin hit a small chunk or piece of ice that was buried in the snow at the base of the slide in the landing area. In my view this was a not a hazard that the City of Barrie should have been reasonably required to address in order to meet the standard of care. While I appreciate that a more rigorous inspection process and perhaps the use of a rake to comb the landing area might have uncovered this hazard, in my view, this places too high an onus on the City of Barrie. The standard is not one of perfection, rather it is reasonableness. In view of the activity in question and in view of the circumstances as I have found them, I do not believe that the City of Barrie should be held liable for this unfortunate injury.

The Appeal was dismissed with costs payable to the respondents fixed at $5,000.00 inclusive of disbursements.

 

Read the full decision [PDF]
Antonio Meringolo
Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.