Hill ban 'legislates away the right to enjoy Canadian winter': Thomson Rogers' Matthew Sutton
This article was created in partnership with Thomson Rogers Lawyers
As Toronto welcomed its first stretch of snowfall in 2024, the city closed 47 tobogganing hills deemed unsafe. Warning signs, a result of a 2017 risk assessment initiative, now dot these hills. Matthew Sutton, a partner at Thomson Rogers Lawyers, explains that these signs not only "insulate the city from liability but also make it difficult for individuals to argue they weren’t aware of the risks.”
Sutton emphasizes the legal hurdle faced by those assuming the risk. "Even if individuals acknowledge the risk, winning a case against the municipality demands proving a deliberate intent or reckless actions causing injury. The signs’ clear purpose, directing users to a website showing a significantly reduced number of available hills, is intended to avoid lawsuits."
Given this legal landscape, the question arises: “Should personal injury lawyers take on tobogganing injury cases on municipal hills?” Sutton suggests that depending on the facts of each individual case, some claims may be worth pursuing, but he acknowledges that it remains “an uphill battle."
Barriers to recovery in court
Winter sports, including tobogganing, are "in Canadians’ DNA," says Sutton. This may explain why the recent ban on the activity caused public outcry, including accusations that the municipality is effectively legislating children out of a childhood, that was enough of a backlash to cause the city to walk back the ban.
While it is arguably an inherently dangerous activity, Sutton notes, if the plaintiff is deemed not to have willingly assumed the risk of injury, s. 3(1) of the Occupiers Liability Act will apply requiring the municipality to act reasonably in the circumstances. However, if a plaintiff is deemed to have willingly assumed a risk of injury, s. 4(1) of the act applies and the barrier to recovery in court is greater. The law would then require the municipality to not create a danger with the deliberate intent of doing harm and to not act with reckless disregard, which is "a much harder test for a plaintiff to meet," Sutton says.
The caselaw
As much as the pastime is revered, injury sustained while tobogganing has been the issue of claims in Canada for a long time. One example is a 1938 decision, Scoffield v. Public School Board, involving a child who was injured while tobogganing on a North York school board's property, for which the board was ultimately found not to be liable.
Beyond Scoffield, more recent cases have also grappled with this issue. Ugentti v. Hamilton is an arbitration decision upheld by the court where s. 3(1) of the Occupiers Liability Act applied because it was found that the plaintiff did not willingly assume the risk of the hidden snow-covered ditch that caused the injury. In that case the court found that it was reasonable to conclude that “the municipality has a corresponding obligation to warn of such danger," Sutton says.
In another case, De Cou v. Leamington, the plaintiff was involved in a sledding accident that resulted in multiple injuries. In this case the plaintiff merely fell off of her sled for no reason other than the nature of the activity. The plaintiff alleged that the defendant municipality failed in its duty of care, bringing an action for determination of the municipality's liability. The action was wholly dismissed. The court found that the plaintiff willingly assumed the risk inherent in tobogganing and therefore the tougher standard under s. 4(1) of the Occupier's Liability Act applied. Thus, the plaintiff was required to prove that that municipality created a danger with the deliberate intent of doing harm.
"This decision is an example where even without signs or any real maintenance of a hill the municipality is found 0% liable for injuries and the plaintiff is found to have willingly assumed all risks and is 100% liable," Sutton says. There was no reason for the plaintiff's injury other than falling off the toboggan, and therefore even without banning tobogganing a claim against a municipality can fail.
'Reasonably foreseeable risk' key to degree of municipal liability
Toronto's strategy has made pursuing claims within its jurisdiction very difficult, and because other municipalities have yet to follow suit, Toronto has set the standard. As caselaw attests, merely falling off a toboggan and getting hurt is likely not enough to find any municipality liable — there must be a separate issue with the location that creates a reasonably foreseeable risk of danger/injury for liability to be imposed.
"When considering taking one of these cases, assessment must include whether the injury was caused by something unexpected and not merely by falling off a sled, as this is expected," Sutton says. "As it stands, all things being equal, the chances of success in court are higher outside the city than inside the city."
Regardless of what happens going forward, in Sutton's opinion Toronto's prohibition goes too far.
"Post the signs, and in those signs identify the areas of risk, but fully prohibiting the use of most city hills legislates away the right for families in Toronto to enjoy a Canadian winter."
