The Ontario Court of Appeal’s recent decision in Martin v. Barrie (City) reaffirms that, in occupiers’ liability cases, the applicable standard is not one of perfection, but of reasonableness.
This appeal arose from an incident occurring in February 2011 at Winterfest, which was an event hosted by the City of Barrie. Winterfest attracted approximately 20,000 to 25,000 people over a two-day period. Many of the attendees were families with children. The Plaintiffs in this case, Andrea and Errol Martin, attended Winterfest along with their two young children.
A snow slide was specifically made for attendees at the festival. The slide was on a gradually sloped hill. It was not steep or tall. Users of the slide were to proceed down on their bottoms as opposed to using sleds or toboggans. Although it was intended to be used primarily by children, adults were permitted to go down the slide as well. In this case, Mrs. Martin accompanied her two children to the top of the slide, who went down the slide without any incident. Mrs. Martin allegedly told a City attendant that she did not want to go down the slide, but was told that she could not go back down the stairs she used to come up and that the slide was the only way down. She ultimately went down the slide. As she approached the bottom, she dug her heels in to slow herself down for fear of striking the safety fence at the end. Her buttocks then struck a chunk of ice that was protruding from the snow-covered slide, resulting in a tailbone injury. Mrs. Martin only saw the chunk of ice after she looked back. She allegedly heard someone say, “I have to fill this in again,” but it was unclear whether these words were uttered by a City employee. She also saw the same person kick snow to fill in the spot where the chunk of ice came from.
The trial judge dismissed the Plaintiffs’ claims on the basis of his finding that the Defendants had not breached the standard of care set out in s. 3(1) of the Occupiers’ Liability Act. Although he recognized that occupiers have a positive duty to take reasonablesteps to make the premises reasonably safe for those who enter it, he reiterated the leading case law that this duty is not an absolute one and that the occupier should not be considered an “insurer”. Just because a hazard exists does not necessarily mean that the occupier has failed to meet the standard of care, even in cases where the injury is catastrophic. The trial judge also specifically took issue with Mrs. Martin’s credibility in response to her testimony that she was instructed to proceed down the slide by City staff. Ultimately, considering the context, the trial judge found that the City took adequate and reasonable steps to safeguard the attendees using the snow slide at Winterfest.
Mr. and Mrs. Martin appealed on three grounds, all of which were rejected by the Court of Appeal:
1. The trial judge did not err in concluding that the ice chunk in question was “small”
Ms. Martin herself admitted that she did not see the ice chunk at any time before she struck it and described it as about four to six inches in size. According to the Court of Appeal, the trial judge’s characterization was entirely justified.
2. The trial judge did not err in refusing to infer liability from the City employee’s alleged comment (“I have to fill this in again”)
The Court of Appeal was also not persuaded that the City employee’s comment after the incident meant that the trial judge should have inferred liability on the part of the City. Instead, it supported the Defendants’ position that the City employee was paying close attention to the condition of the landing and filled in gaps and patches as would be expected.
3. The trial judge did not err in finding that the City met the requisite standard of care
The Appellants argued that, by inviting the public to ride the slide, the City failed to have “a system of regular inspection and maintenance of the run-off area of the busy slide”. The Court of Appeal disagreed. While a more rigorous inspection process and the use of a rake to comb the landing might have revealed the ice chunk before the incident occurred, this would equate to a standard of perfection and place too high an onus on the City.
The Court of Appeal’s decision gives us two important reminders: (1) occupiers’ liability cases are highly fact-specific and (2) credibility is key. Occupiers are not expected to be perfect. Even a reactionary system of maintenance can be appropriate, such as in this case. The bottom line is that the standard of care must be interpreted flexibly to reflect the particular circumstances in each case. The analysis will always come back to the specific facts and an assessment of credibility.
See Martin v. Barrie (City), 2018 ONCA 499 (CanLII).