Slip and fall victims can be plowed under trying to sue municipalities

By Tony Poland, LegalMatters Staff • Provincial and municipal governments use legislation to insulate themselves against slip and fall lawsuits when they should be “held to the same standard” as average homeowners, says Barrie-area litigator Steve Rastin.

Rastin, senior counsel at Rastin Gluckstein, says lawmakers enact legislation that makes it more difficult for the average person to file a claim when injured in a fall on municipal or provincial property.

“Governments have created a system where they don’t have to take as much care as ordinary citizens are expected to do to keep their fellow citizens safe,” he tells LegalMattersCanada.ca. “People are being injured because our decision-makers make choices that have the potential to create unsafe conditions, but they are insulated from those choices while victims are going uncompensated.

“The government ought to be held to the same standards as everybody else. You should not be held liable if you are not negligent. However, you should not be able to game the system by putting in an arbitrary set of rules all in the name of allegedly saving some money on insurance premiums,” Rastin adds. “If you sue a homeowner, all you have to prove is negligence. If you sue a municipality, you have to prove they were grossly negligent.”

More difficult to file a clam against a municipality

He says decades ago, the average person was not able to sue the Crown for negligence. Over time that changed, but it is still much more difficult to file a claim against a municipality than against an average homeowner. 

For one, there is a time limitation for providing notice.  Under the Occupiers’ Liability Act, an accident victim has 60 days to notify the defendant. However, the limitation period is much shorter with the Municipal Act.

“If you slip on a sidewalk, you must notify the municipality within 10 days,” says Rastin. “For many people notifying a lawyer is not something they immediately do, especially if they are seriously hurt. They might even be in the hospital during that time.”

As well, claims are not permitted against the Crown when it comes to legislative, policy and regulatory decisions. 

“A policy is the general rules the government makes about what they are going to do. The big picture,” Rastin says. “Procedure is how you do it on the ground, how you implement the policy. The government says, ‘Here is our budget for snow removal or, or here’s how we’re going to prioritize certain things.’” 

He says it makes it difficult to file a lawsuit when the policy sets out minimal maintenance procedures. For example, if the policy is to clear snow after a storm, blowing snow or a thaw and quick freeze that occur after could make a sidewalk hazardous, says Rastin.

‘The policy may not be based on any sense of what is reasonable’

“If you inspect a sidewalk once per year, you are deemed to have met your duty under the municipal policy,” he explains. “But the policy may not be based on any sense of what is reasonable, what is right or what is necessary. It is arbitrary.

“There seems to be more interest in how much it costs to keep a road safe when the question should be, ‘How can we keep the roads safe in a more cost advantageous fashion?’”

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Ontario legislation amended in 2019 also makes it mandatory to go before a judge for permission to proceed with a lawsuit against the Crown for bad faith.

“You have to make your case out at the beginning of the lawsuit without having any evidence from the other side,” Rastin says. “There is a raging debate that this legislation is just codifying the laws that exist. This legislation has created a lot of angst.”

While setting time limitations on filing a lawsuit or providing notice may seem reasonable, there are cases when it puts the victim at a disadvantage.

“If you are dealing with a strip mall, for example, it may not be clear who is responsible. Corporate structures can be complicated,” Rastin says. “It is not a simple case when you’re dealing with a private entity. It could take months to determine the proper defendant.”

Rastin says the average person may not understand the implications of the legislation.

May not be in the public’s interest

“People may say the limitations are good because it keeps taxes down,” he says. “But I’m curious. Do insurance companies charge less premiums with fewer lawsuits? I doubt it. It does not benefit ratepayers. It benefits insurance companies. In the end, it is not in the public interest.”

While it is more difficult to advance a plaintiff’s right to justice when dealing with municipalities, he says there are many lawyers still willing to fight. Rastin says he is encouraged by the recent Supreme Court of Canada (SCC) case City of Nelson v. Taryn Joy Marchi, which allowed a woman to pursue a lawsuit against the municipality. She claimed injuries after walking over a snowbank to get to her car following a 2015 snowstorm.

The woman contends that the City of Nelson should have left openings in the snowbanks to allow safe passage. A judge dismissed the case but the B.C. Court of Appeal overturned that ruling and ordered a new trial. The City appealed to the SCC, arguing it was immune from liability because it made a legitimate policy decision on snow removal based on the availability of personnel and resources.

“The city is effectively trying to insulate themselves by saying the things they do are based on a policy decision, and therefore you cannot sue,” says Rastin. “The Supreme Court of Canada decision does not mean this person has won. It means that she is allowed to proceed with her claim. But if the city had succeeded, it would have represented a blow for people in the same circumstances because the wider this policy exemption piece becomes, the more problematic, the more difficult it is to proceed with a claim.”

Supreme Court ruling gives hope to plaintiffs

He says while the SCC ruling gives hope to plaintiffs, he worries such decisions will embolden governments to “enact legislation to get where they want to go.”

“There are discussions about governments trying to expand this umbrella that’s called policy and narrow this umbrella that’s called procedure,” Rastin says. “It almost seems as if we are sliding back to the old days where you could not sue the Crown. There are people who would like us to get back there. It is an open question as to whether that will happen.”

Ultimately, he says, it is a question of responsibility.

“Think of how important municipalities are in terms of maintaining our safety,” says Rastin. “We are talking about roads and sidewalks and all that. How much of society’s resources are owned by the government? How much time do we spend on property that belongs to municipal, provincial or federal governments? To say that those entities can be held to a lower standard for the sake of cost savings does not, in my opinion, seem to be in the public interest.

“Where we are today is unfair, and governments are not content to leave it at that,” he adds. “They seem intent on avoiding any responsibility.”