Ontario’s Superior Court has provided further direction on the standard of care of occupiers, this time in the context of a municipality operating a snow slide at a winter festival.
In Martin et al v The Corporation of the City of Barrie et al, the slide was described as a large pile of snow capped off with a decorative ice sculpture with separate chutes on which guests would slide. The plaintiff descended the larger of two slides and struck what she thought was a piece of ice hidden underneath the snow. She sustained injury as a result.
The plaintiff testified that after she struck the piece of ice, she heard a festival staff member indicate that the hole had to be filled in ‘again’. The plaintiff argued that this utterance was proof that the slide was unsafe and that festival staff were aware of the safety issue. Festival staff was provided with training relating to slide maintenance and customer service issues, and were on site to ensure proper use and to assist people to clear the area after use and were provided with shovels to smooth and fill in the landing area, given that it was expected the landing would be worn away by heavy use. There was no scheduled closure for maintenance.
In finding that the City did not breach the standard of care of an occupier, the court noted that the very activity engaged in by the plaintiff is one that entails certain risks that are known and assumed by participants. That alone does not negate liability, however as the City was still required to take steps to ensure the slide was reasonably safe in the circumstances. On this issue, the court noted that the slope was neither high nor steep and that festival staff were located at the top and the bottom of the slide to assist participants and to manage the condition of the slide on an ongoing basis. The defendant argued that the employees post incident utterance of filling in the hole again was evidence of reasonable measures taken by the City to manage the safety of the slide.
It is noteworthy that the court found no liability despite accepting the plaintiff’s argument that a more rigorous inspection protocol could have uncovered the hazard. Consistent with jurisprudence on what constitutes ‘reasonable’ steps to ensure safety, the court identified that this question must be asked and answered in the context of the activity in question. In this case, the plaintiff’s injuries, which were found to be casually related to her use of the slide, were the consequence of her voluntary assumption of risk.