A B.C. woman recently made headlines across the country when the Supreme Court of Canada gave her a fresh shot at proving her $1-million negligence claim against the City of Nelson.

The nation’s top court granted a new trial over the 2015 leg injury the woman suffered while climbing through a snow pile created by a city-owned plow on municipal property, concluding that the original judge hearing the matter used faulty reasoning to dismiss her case.

Higher standard to prove negligence in Ontario

While the result is good news for the plaintiff in that case, Haté, a lawyer with Rohan Haté Professional Corporation, says that Ontarians should not get too carried away, since they typically face an even higher bar to establish claims against cities.

Under s. 44(9) of this province’s Municipal Act, plaintiffs must show that there was “gross negligence” on the part of a municipality before it can be considered liable for personal injury caused by “snow or ice on a sidewalk.”

“That’s a much higher standard,” Haté says. “It’s often very difficult to prove your case in Ontario because you have to show some egregious conduct by the city.”

Still, there are times when plaintiffs have met the higher standard, such as a 2017 case involving a Kitchener woman who injured herself in a sidewalk slip. The judge was convinced that a combination of mistakes, including the city’s failure to act on weather reports the night before the accident suggesting that a thaw-freeze situation was likely, constituted gross negligence.

Municipal property versus private property

According to Haté, lawsuits over accidents on municipal property are a relatively recent phenomenon, since cities were largely immune from negligence claims before the late 1970s when provinces across the country began passing laws that opened the door to liability.

However, a series of exceptions and carve-outs built into legislation and the law of negligence extends immunity to municipalities in certain circumstances to allow them a bit more freedom to govern without worrying about lawsuits.

“If you slip or fall in a grocery store parking lot or some other property belonging to a private business, it’s much easier to prove your claim than if you suffered the same injury a short distance away on a city sidewalk,” Haté explains.

In the B.C. case, the woman’s claim was derailed at the original trial when the judge found that the city’s plowing decisions fell under “core policy” immunity, which shields governments from liability for decisions made on the basis of public policy. The judge found the municipality had not breached its standard of care and that even if there was a breach, it was the woman’s own actions that caused her injuries.

However, the Supreme Court agreed with the B.C. Court of Appeal’s conclusion that the trial judge got it wrong. Critically, the unanimous SCC panel found that the plowing decision should not have been considered a core policy, meaning that the city did, in fact, owe the injured woman a duty of care. The new trial will focus on whether that duty of care was breached and where the blame lies for her injuries.

Time limits for negligence claims

In Ontario, municipalities get an additional layer of protection from s. 44(3) of the Municipal Act, which frees them from liability if they can prove that they could not reasonably have been expected to know about the problem that caused an injury, or if they took reasonable steps to keep city roads and sidewalks in good repair.

Regulations under the same section also set out minimum maintenance standards for things like salting and plowing that, if met, shield cities from liability.

“If you have a fall, you can obtain logs and notes to determine whether the city took steps to make sure the sidewalk was clear. If they met those minimum standards under the Act, then you may not have a case, even if you are injured. That’s the risk you have with city property,” Haté says.

Finally, injured Ontarians must act quickly if they think they may have a claim against a municipality, thanks to s. 44(10) of the Municipal Act, which bars actions for negligence unless the city has been notified in writing within 10 days of the accident.

“That’s a very short period of time for someone who has suffered a significant injury,” Haté says.