The decision of the Court of Appeal in the case of Billings v. Mississauga (City), 2011 ONCA 247 (CanLII) in which the Court affirmed the 2010 trial decision of Justice Herold involves a slip and fall on a municipal sidewalk after a significant winter storm.
At trial, Justice Herold confirmed that the determination of whether a municipality was grossly negligent continues to be one based on the particular facts of the case, considered in context. The questions which must be answered are (1) was the municipality's general policy with respect to ice and snow removal a reasonable one and (2) was the municipality's response to the occasion in question reasonable?
In this case, the judge stated that the fact that the municipality's employees are unionized and thus available on weekends and holidays only on a voluntary overtime basis is a relevant part of the context. He also held that, in light of available resources, the City's policy of clearing sidewalks of ice and snow within 36 hours was a reasonable one. He then went on to consider the implementation of the policy on the occasion in question.
The trial judge's decision shows that a municipality's failure to meet its own policy does not necessarily mean the municipality was grossly negligent. Importantly, Justice Herold also specifically disagreed with the plaintiff's argument that the decision of Crinson v. Toronto (City), 2010 ONCA 44 (CanLII), also released last year, stood for the principle that failing to clear sidewalks within 36 hours is in itself gross negligence. Justice Herold said the Crinson decision only held that it was grossly negligent on the facts of that case.
On the facts of the Billings case, the sidewalks had not begun to be cleared until almost two days after the storm started and it took days for the route to be completed, however, Justice Herold held this was reasonable given the conditions created by the storm. He held it was reasonable for the municipality to prioritize roads over sidewalks and the time it took to clear sidewalks once started was also reasonable. As a result, the City was not found liable to the plaintiff.
The Court of Appeal agreed with Justice Herold's careful review of the municipality's systems, personnel and policies and agreed that the municipality's response to the storm was completely reasonable. The Court held that the sidewalk snow and ice removal policy and the response on the occasion in question were “far from being grossly negligent.”
The significance of this decision for municipalities is that it provides confirmation from the Court of Appeal that a reasonable policy is important but the question of gross negligence continues to be one that is decided on the facts of each case.
It is also worth noting that, at trial, Justice Herold found the photographs entered as evidence of the conditions during and after the storm to be particularly persuasive. Municipalities may consider documenting significant weather events with pictures or video, although proper records must also be kept of who took the photographs, when and where. Detailed notes regarding road and sidewalk conditions also continue to be important.