Injured on Public Property? Municipal Liability for Slip and Falls
In contrast to private property, where individual owners are responsible for maintenance and the safety of visitors, public property is owned by the state, as the property interest and its corresponding liabilities are vested in the government.
The streets, walkways, and parks that we use on a daily basis are most often looked after by municipalities, who are granted this jurisdiction under federal and provincial laws. However, many people are injured while using these public properties and are therefore required to claim compensation against the municipality for their wrongdoing or failure to maintain the property in good order.
Personal Injuries on Municipal Public Property
Although once immune from liability, municipalities no longer enjoy absolute immunity and are subject to liability for wrongdoing in negligence, nuisance, and breach of contract. However, they do enjoy some additional protections in certain areas, which limit their statutory duties.
Although private property owners are regulated by the Occupiers Liability Act, municipalities in Ontario are governed by the Municipal Act, 2001, which states in subsection 44(1) that a "municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances.” The subsequent section goes on to state that
- A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Municipal Act, 2001, s. 44(2).
Therefore, if a municipality fails to keep their property in a reasonable state of repair which causes personal injury, then the municipality is liable for the resulting damages. The Act defines ‘highway’ as any common and public road, which therefore includes all road allowances, streets and lanes shown on a registered plan of subdivision. The definition also considers municipal sidewalks to be part of a highway, as determined in R. v. Wassilyn, 2006 ONCJ 248 and the cases cited within.
As a result, a municipality can be held liable for defects contained within municipal highways, including sidewalks. However, a number of subsequent provisions within the Municipal Act, 2001 may limit a plaintiff’s claim against a municipal corporation.
Limits on Liability Provided by the Municipal Act, 2001
1. Defence from Liabilities
Subsection 44(3) creates a series of absolute defences from civil liability for municipalities. It states that:
“ A municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) (Knowledge) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) (Reasonableness) it took reasonable steps to prevent the default from arising; or
(c) (Minimum Maintenance Standards) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.”
Municipal Act, 2001, s. 44(3).
If the municipality can prove one or more of the three above conditions, then they are absolved of liability. Therefore, a municipal authority is only liable for failing to keep a road in a reasonable state of repair where it had actual or constructive knowledge that the road conditions created a risk of harm to the public and where the municipality unreasonably neglected that risk by failing to remedy or warn. In Levy v. Brampton (City), 2005 CanLII 21547, the plaintiff slipped and fell on a municipal sidewalk that was covered in snow and ice. The municipality tried to claim a defence under section 44(3), but was denied since they made no inspections of the sidewalk where the accident occurred.
A municipality may be able to demonstrate that it acted reasonably by establishing that it met the Minimum Maintenance Standards (“MMS”). This regulation under the Municipal Act, 2001 sets out the standards for municipal maintenance of roadways, which are very contextual and take into account many conditions of the road (i.e. statutory speed limit, volume of traffic etc.).
2. Snow Caused Slip and Fall
Section 44(9) of the Municipal Act, 2001 states that a municipality is not responsible for any personal injury resulting from snow or ice on the sidewalk unless the municipality has been “grossly negligent” in its duty of maintaining in a reasonable state of repair. This standard is higher than the typical degree of fault and is defined by Dagenais v. Timmins (City), O.J. No. 505 as great negligence with “proof of misconduct that is wilful, wanton or flagrant." Therefore, to be found liable, a municipality must act unreasonably in the face of fairly apparent hazards. Examples of this gross negligence include allowing ice or snow buildup, knowingly allowing icy conditions to fester, and having no policy to ensure the safety of the public.
In Levy v. Brampton (City), 2005 CanLII 21547 cited above, the Court determined that the City is not liable for a breach of its duty of care, since there is no evidence that the City knew of the conditions and nor did their failures to inspect the sidewalk show a “great neglect of duty.” Alternatively, in Crinson v. Toronto (City), 2010 ONCA 44 the Ontario Court of Appeal determined that because 34 hours elapsed from the time the defendant became aware of dangerous sidewalk conditions and when it responded only with salting and nothing else, the City was grossly negligent and liable to compensate an injured pedestrian.
Finally, section 44(10) of the Municipal Act, 2001 states that “No action shall be brought for the recovery of damages … unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been [given to the municipality].” If the injured person does not give notice within this timeline, then they are barred from bringing a claim for civil compensation.
Since most people are unaware of the 10-day notice requirement, there are exceptions to section 44(10) if you can demonstrate two things:
(1) You have a reasonable excuse for not providing notice; and
(2) The municipality will not be prejudiced by the late notice.
Municipal Act, 2001, s. 44(12).
When assessing the ‘reasonableness of the excuse’, courts will take a broad and liberal approach and consider all circumstances. The section does not require incapacity to establish reasonable excuse, as it extends to other considerations. In Crinson, the Court of Appeal assessed all circumstances and factors found within the caselaw, including (a) the seriousness of the injury, (b) whether the plaintiff knew of the notice period, (c) the length of the delay, and (d) whether the plaintiff was capable of forming an intention to sue within the period.
After proving the excuse to be reasonable, the injured person must demonstrate that the municipality has not been prejudiced by the delay. While the onus is on the plaintiff, there is no presumption of prejudice. Prejudice most often occurs when the municipality are unable to undertake an investigation of the accident, as this limits their ability to defend the claim.
Municipalities can be held liable for defects contained within municipal highways, including sidewalks, through the Municipal Act, 2001. However, there are several provisions within that Act which operate to limit a plaintiff’s claim if not handled appropriately. This includes an absolute defence under section 44(3), a decreased standard of care for snow incidents, and semi-strict notice timelines.
The personal injury lawyers at Littlejohn Barristers have significant experience navigating the Municipal Act, 2001 and representing clients who have had been injured in slip-in-falls on public property. If you have suffered a personal injury or accident, please contact our Barrie office at 705-725-7355 to see if we can help.