Raise the Hammer
Despite the public outrage at City policymakers, this is an uphill battle for them no matter which way they turn.
By Zachary Strong
Published January 08, 2015
After reading an article by Matthew Van Dongen in The Spectator about the now-infamous bylaw (and the Hamilton Conservation Authority's plans to plant vegetation on a popular Dundas tobogganing hill), I wrote a letter to a number of City officials in order to learn more about the issue.
No Tobogganing sign (RTH file photo)
Although I was expecting unhelpful non-answers, I was pleasantly surprised to encounter a number of competent and thoughtful people who are just as frustrated by the situation as the average sledder. What originally might have seemed as a 'war on fun' quickly evolved into a fascinating case study on legal liability, municipal policy, and risk management.
Many residents may be unaware that tobogganing has actually been banned on City of Hamilton properties since at least 2001, although the bylaw has never been enforced.
In the past, this bylaw has been sufficient to place liability on those taking part in tobogganing. However, in recent years, the legal precedent has shifted, according to correspondence with John McLennan, the City's Risk Manager.
Injured parties are now much more inclined to sue for damages, and, in turn, the courts have placed a very high degree of responsibility on property owners to protect users, even in situations where they have not been invited onto the property and/or when they are not exercising reasonable caution.
Indeed, this would seem to be the case in a $900,000 judgment awarded to a man who was injured while tobogganing on the Garth Street reservoir. Despite the bylaw, the City was found liable for damages sustained by Bruno Uggenti after he crushed a vertebra on a terrain feature obscured by snowfall.
According to an article published by Borden Ladner Gervais LLP, the Arbitrator's decision hinged on two key arguments: the Occupiers' Liability Act and a Supreme Court ruling in Waldick v. Malcom (1991).
"In finding the City liable, the Arbitrator relied upon section 3 of the Occupiers' Liability Act which requires occupiers to take reasonable care [...] to see that persons entering a premises are reasonably safe. The Arbitrator found [...] that the snow-covered ditch which led to the tobogganing accident was a hidden danger. The City knew about it, but did not take reasonable steps to warn tobogganers of this danger."
"The City also argued that an inherent risk of tobogganing exists because the topography of an area is hidden by snow. The Arbitrator found that the Plaintiffs were not aware of the risk of hitting the edge of a snow-covered ditch, and this risk was a hidden danger not inherent to the sport of tobogganing."
"The Court also cited the Supreme Court of Canada decision in Waldick v.Malcolm, [1991] 2 SCR 456, which held that the voluntary assumption of risk requires knowledge of the risk, as well as a waiver of legal rights that may arise as a result of the risk."
It is also worth noting that Mr. Uggenti had suffered an injury in a previous tobogganing accident, and therefore must have been aware that tobogganing was an inherently risky activity.
Although a tobogganing bylaw seems ludicrous, it may actually be one of the better options facing the city in the current legal climate, given that they are apparently now expected to protect people from the consequences of their own decisions, even when those decisions are in violation of local bylaws.
Another option, which is currently being explored by the Hamilton Conservation Authority, is 'naturalizing' - or planting vegetation - on hills used for tobogganing.
The intent is to make the slope altogether unsuitable for winter activities, according to Hamilton Conservation Authority CEO Chris Firth-England.
Using native woody shrubs and perennials on the top 2/3 of the slope would take the hill out of service without putting hazards in the path of sleds and their inertia [...]
Tobogganing aside, it is the long term objective of the HCA to reduce our operational risks and costs for maintaining this slope as a mowed space. We have naturalized many similar gradients over the past few years throughout our holdings.
Although it seems this initiative is part of a larger strategy for the HCA, such a strategy could either be trampled - quite literally - by determined riders, or would force members of the public to other hills of equal or lesser quality, in terms of safety.
Unless the City of Hamilton plans to reforest every graded surface within the city limits, this approach seems to be unrealistic at best.
In all fairness, despite the public outrage at City policymakers, this is an uphill battle for them no matter which way they turn. City managers like John McLennan and Chris Firth-England are being put in the awkward position of having to choose between encouraging a generations-old activity and protecting taxpayers from millions of dollars in liability settlements.
In a January 5 interview with Ottawa's 580 CFRA, Mr. McLennan revealed that the City is exploring the possibility of creating designated tobogganing hills with monitoring, grooming, and patrolling, which is certainly a step forward for winter enthusiasts.
In the meantime, however, perhaps we should be asking provincial legislators about the Occupiers' Liability Act and how it applies to municipalities like Hamilton. What is the purpose of the law? When has it fulfilled its intended purpose, and where is it falling short? If something seems broken, perhaps it can be fixed.
Although tobogganing seems like a frivolous issue when compared to some of the things society is facing today, it highlights some important conversations around personal responsibility, assumed risk, and our capability to make our own decisions, whether they be recreational or otherwise.
See you on the slopes!
By Ted Mitchell (registered) | Posted January 08, 2015 at 11:55:11
Personal injury lawyers are the essence of conflict of interest.
By CharlesBall (registered) | Posted January 08, 2015 at 11:57:16 in reply to Comment 107680
How so?
By CharlesBall (registered) | Posted January 08, 2015 at 12:17:57
I do not know the exact statistics, but the City, on average, pays out about $3,000,000.00 per year in liability claims. That works out to about $5.00 per citizen. They do that because that is a heck of a lot cheaper than buying insurance.
If you owned a hill that had a hidden drainage ditch at the bottom that you were aware of, would you let children toboggan on your hill? Would you rope it off or put up a warning sign?
A bird told me that there was a private mediation in this case and the City could have got out of this lawsuit for about a quarter of what they ultimately paid but they refused to pay and rolled the dice with the arbitrator. Further, the plaintiff's damages were reduced by by his own responsibility for the damages he suffered.
Comment edited by CharlesBall on 2015-01-08 12:42:25
By City Staffer (anonymous) | Posted January 08, 2015 at 17:26:47
Let's remember that this is a City of Hamilton employee and her husband who sued the City and she remains a City employee today !!! How sad is that. What is wrong with our City ??
By Ted Mitchell (registered) | Posted January 09, 2015 at 13:01:27
Sam Merulla was entertaining on The Current this morning.
By Missy2013 (registered) - website | Posted January 09, 2015 at 16:40:02
... Protest Video. https://m.youtube.com/watch?feature=yout...
By KevinLove (registered) | Posted January 10, 2015 at 13:40:25
Anyone who toboggans down a slope without first checking it for hazards is reckless and negligent.
Just like every car driver that blasts into an intersection without checking it for pedestrians is reckless and negligent.
See the pattern... No responsibility for people who do reckless and negligent behaviour.
The ditch that Mr. Uggenti hit was most certainly not a "hidden danger." It is an open and obvious feature that is readily apparent to anyone who has the basic common sense possessed by every reasonable person to check out a slope before tobogganing down it.
In short, Mr. Uggenti is 100% responsible for the consequences of his reckless and negligent behaviour.
It is my sincere prayer that the City appeals this ruling. And that if this judge has a history of similar bizarre behaviour then he needs to be replaced.
Perhaps the City should create "official" tobogganing hills in parks that are landscaped and groomed to provide a good run.
Childhood obesity is a terrible issue that leads far too many children to a lifetime of obesity, diabetes, heart disease, strokes... Far bigger killers than anything that ever happens on a tobogganing hill!
Comment edited by KevinLove on 2015-01-10 13:54:42
By KevinLove (registered) | Posted January 11, 2015 at 03:12:41 in reply to Comment 107686
Charles wrote:
"Further, the plaintiff's damages were reduced by his own responsibility for the damages he suffered."
Kevin's comment:
Not according to the judge. See below for an extract from the link posted in the article.
It is certainly true that they should have been reduced (to zero!) by the man's recklessness and negligence in failing to check out the ground over which he intended to toboggan. This ditch was not a "hidden danger" but is open and obvious to anyone who walks over this ground, which is the action of a reasonable and prudent man before tobogganing upon it.
This man even had a previous tobogganing injury! Some people never learn. And they never will if they are rewarded with $900,000.
An excerpt from the above link:
IV. Contributory negligence
[25] Did the Arbitrator err in law in finding no contributory negligence by of the Plaintiffs?
[26] In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,[10] the Supreme Court of Canada adopted the following test for contributory negligence:
A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless.[11]
[27] The City argued that the Arbitrator erred in law in finding no contributory negligence on the part of the Plaintiffs, in that he failed to apply an objective test in determining whether there was contributory negligence by the Plaintiffs. In this regard, the City cited passages from the Arbitrator’s decision in which he determined that the Plaintiffs saw or may have seen a depression or divot in the snow that they determined on a subjective basis did not pose a danger. In the City’s submission, the Arbitrator was required but failed to consider whether the reasonable, prudent person, knowing that there was a depression or divot, would have foreseen that the depression might cause an injury while tobogganing, or that tobogganing itself might cause injury.
[28] After considering the City’s submissions, I have concluded that the City’s appeal cannot succeed on this ground. While the Arbitrator did not expressly set out the well-known test for determining whether someone is contributory negligent, there is nothing in his decision to suggest he applied the wrong test. In my view, it was appropriate for him to consider the evidence he did in order to reach the conclusion that there was no contributory negligence by the Plaintiffs. In doing so, he was determining a question of mixed fact and law, which is not reviewable on this appeal.
Comment edited by KevinLove on 2015-01-11 03:17:11
By CharlesBall (registered) | Posted January 12, 2015 at 11:01:45 in reply to Comment 107765
Is any pedestrian who walks into an intersection without first stopping, looking left right and behind and then proceeding negligent? Technically yes, but luckily the Highway Traffic Act http://www.e-laws.gov.on.ca/html/statute... creates a reverse onus. This is discussed further on this site here http://raisethehammer.org/article/2006/h...
The ancient history of tort law addresses wrongs committed between parties. In Common Law the traditions go back to the Magna Carta (see http://en.wikipedia.org/wiki/Magna_Carta... Your suggestions would overturn centuries of law.
I am not saying that things should be done one way just because they have always been done that way. However, there is wisdom in time tested case law which has evolved over centuries.
A law professor form Yale once said that the law should be like the Holiday Inn - No surprises.
The City is a corporation; a corporation created by statute. In other words it is the same as a private individual in a legal sense and owes duties to others much in the same way. It is complicated in that Municipal Corporations are afforded many statutory protections that private people are not afforded, but essentially if you advocate for blanket immunity to fight obesity, there will be a myriad of significant repercussions, the most obvious being that victims of municipal negligence will have no remedy for the harm they suffer.
Comment edited by CharlesBall on 2015-01-12 11:03:30
By KevinLove (registered) | Posted January 13, 2015 at 00:06:37 in reply to Comment 107778
One of the purposes of a street is to provide transportation to pedestrians crossing it. So yes, there is a responsibility for the City to ensure that people can do so safely.
Tobogganing on the hill in question was and is illegal, so one can say that tobogganing is not one of the purposes of this hill.
In my opinion, the test for contributory negligence was incorrectly applied in this case. It its appeal, the City of Hamilton asserted that the City agrees with my opinion. The test for contributory negligence was correctly stated by the judge:
"A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless."
In my opinion, a reasonable, prudent man checks out a hill before tobogganing down it.
If the courts are going to assert that it is reasonable and prudent to toboggan down a hill without checking it out first, and that is to be the standard for large awards of lawsuits against the City, then the City really has no choice but to begin to enforce the existing ban on tobogganing.
In my opinion, banning tobogganing is highly undesirable because banning tobogganing contributes to "an epidemic of sedentary behaviour." Resulting in obesity, diabetes, heart disease, strokes, etc, etc. that are far more harmful.
Comment edited by KevinLove on 2015-01-13 00:12:58
By chuggalug (anonymous) | Posted February 25, 2016 at 14:00:28
Forgive me, it's been years since taking a law course, but it's there such thing as the Doctrine of Clean Hands? I mean, if the guy was taking part in an illegal activity to begin with, does he still have the right to sue?
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