The obligation of a Municipality to maintain a sidewalk and the Provincial Minimum Maintenance Standards were at the heart of a recent decision out of the Ontario Superior Court of Justice, Barbeau v. City of Kitchener.

In Barbeau, the plaintiff tripped on uneven adjacent concrete sidewalk slabs. Through unscientific means, the plaintiff argued that the height differential between the two slabs was at least 26mm, more than the acceptable tolerance of 20mm in accordance with the Provincial Minimum Maintenance Standards. Through slightly more scientific means, the City measured the offset between the two horizontal plains of concrete slabs at anywhere between 11 and 19mm.

Significant evidence was led by the Municipality about the operational systems in place to inspect and repair imperfections in sidewalks that posed a danger to public health and safety. The City was able to establish that they expended large sums of money annually to investigate and repair imperfections in the sidewalks under their jurisdiction through a surprisingly thoughtful and comprehensive system.

The court ultimately ruled against the plaintiff on the basis that her unscientific method of measuring the height differential between the horizontal planes of the adjacent sidewalk slabs – specifically by taking a photograph of a 26mm loonie coin placed upright on the lower slab to demonstrate that the height differential was at least 26mm. The defendant, on the other hand, used a carpenter’s square placed on the lower slab at a right angle with the side of the ruler against the rise of the higher slab. The court preferred the Municipality’s methodology of measuring the imperfection and the plaintiff’s claim failed as a result.

The court noted that the Provincial standards in this instance were ‘reasonable’, being in the context of a ‘small residential street’ and noted no comment was being offered on the reasonableness of that standard in other contexts. It is worth noting that in this case, even though there was an imperfection in the sidewalk that was right on the cusp of the tolerance allowed by minimum maintenance standards, the court found no liability on the municipality and suggested that there is an obligation on pedestrians “to pay reasonable attention to see upcoming height differentials on the sidewalk surface”.

See Barbeau v City of Kitchener, 2017 ONSC 24 (CanLII)