Under section 44(9) of the Municipal Act, a municipality is not liable for personal injury caused by snow or ice on a sidewalk “…except in cases of gross negligence”.
Douglas Billings slipped on an icy sidewalk in Mississauga following a major snow and ice storm. He sued the City of Mississauga. In court, he alleged that the City had failed to follow its own snow removal policy, under which snow and ice is to be cleared within 36 hours of a storm. He pointed to the fact that the sidewalk where the accident took place had been in a dangerous condition for over 100 hours, and that the City relied exclusively on unionized workers (as opposed to independent contractors), who were not required to work overtime and weekends.
Mr. Billings’s case was dismissed at trial, so he took it to the Ontario Court of Appeal. The trial judge had found that the storm in April of 2003 was an extraordinary event. That conclusion was supported by an Environment Canada survey, which ranked the storm second on its list of the top 10 Canadian weather stories of that year.
The trial judge had carefully reviewed the City’s systems, personnel, and policies for dealing snowstorms. He concluded that the City’s response to the April, 2003 storm was “completely reasonable”. The Court of Appeal agreed, and dismissed the appeal.
The standard of gross negligence that has to be met in order to succeed in a claim of this kind is extremely high. The case illustrates the difficulty that plaintiffs and their lawyers face in pursuing this kind of claim against a municipality.
The case is also interesting in that the court accepted the defendant’s assertion that a big snowstorm is an extraordinary event. Municipalities often design their snow removal and storm water systems to handle a “100 year storm”, meaning that the systems are capable of dealing with precipitation that equals the volume and intensity of the biggest storm to hit the area in the last 100 years, based on historical weather records. The writer, who has been practicing law for less than 100 years, has personally been involved in several lawsuits which involved “100 year” storms. Record setting storms seem to have become the new normal, perhaps as a result of changes in weather patterns resulting from global warming. Will the courts eventually hold that municipalities ought to take note of these changing conditions, and plan for storms that exceed the 100 year standard?
Richard Hayles, B.A., J.D.
Link: Billings v. Mississauga (City), 2011 ONCA 247
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