The Operational-Policy Decision Defence Does Not Apply To Winter Sidewalk Slip And Falls

• Published date: 01 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: McLeish Orlando LLP
• Author: Mr Nick Todorovic

Toronto's first winter blast this year is a reminder that slip and falls on icy sidewalks are an unfortunate reality for many months of the year. These all too frequent incidents can cause serious injuries and often occur because the municipality responsible for maintaining the sidewalk failed to adequately and swiftly respond to winter conditions. Accordingly, the municipality in question may be found liable for the injuries that result.

In Ontario, plaintiffs must prove gross negligence on behalf of the municipality to make out a claim for failed winter maintenance on sidewalks. This is because s. 44(9) of the Municipal Act states that there is no liability for personal injury caused by snow or ice on sidewalks except in the case of gross negligence.

Gross negligence is a difficult standard to meet in-part because of its lack of precise definition. Indeed, the Court in Sutherland v North York (City), 1997 CanLII 736 (ON CA) wrote that the term "gross negligence" has defied precise definition. That said, it is a higher standard than negligence, as stated by the majority in Kingston (City) v Drennan, 1897 CanLII 2 (SCC), where Sedgewich J wrote that the meaning of gross negligence is "very great negligence."

The trade-off for Plaintiffs having to meet this ill-defined and the higher standard is that the policy decision defence cannot be invoked by municipalities in the case of sidewalk slip and falls. Under this defence, municipalities are exempt from liability where the injuries resulted from a policy decision as opposed to an operational decision. In a leading case on this defence, the majority in Just v British Columbia, 1989 CanLII 16 (SCC), wrote:

True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political, or economic factors. However, the implementation of those decisions may well be subject to claims in tort.

The courts have struggled to pin down the dividing line between policy and operational decisions. As Cory J in Brown v British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), wrote:

True policy decisions involve social, political, and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic...