Mar 01, 2019
Particularly icy conditions in Waterloo Region and in many other parts of Canada in January and February of this year have resulted in an upsurge of accidents due to icy roads, and slippery sidewalks and parking lots. Freezing temperatures have made sidewalks treacherous and, in some locations, compacted snow and ice have remained on walkways and on lesser-used municipal roads for days and even, weeks. These circumstances, along with freeze and thaw temperatures, have increased the risk of slip and fall accidents and motor vehicle accidents in Waterloo Region.
Kitchener-Waterloo Bylaws for Snow and Ice Removal
City bylaws require property owners/occupiers, including home owners and businesses, to remove ice and snow from the sidewalks along their properties within 24 hours after a snowfall. And, beginning in the 2018/2019 winter season, the City of Kitchener began sending out bylaw officers to inspect sidewalks. If sidewalks are not adequately cleared, the bylaw officer will leave a notice requiring the homeowner to fix the problem, and property owners who have not complied after receiving the one-time warning, may be fined $400. The amount of fine may vary depending on how long it takes a City contractor to clear the sidewalk.
Municipalities throughout Ontario must also adhere to legal standards for clearing roads of ice and snow, pursuant to the guidelines set out in the Municipal Act’s Minimum Maintenance Standards for Municipal Highways (MMS). The MMS establishes a time table for maintaining roads: city roads with the highest traffic volumes and speeds (‘class 1’) roads have the highest priority for road maintenance and must be cleared promptly after snow or ice formation, and streets with the least traffic are cleared last. The MMS requires that municipalities deploy their resources to treat icy roads as soon as is practical after they have become aware that the road is hazardous or icy.
In Kitchener and Waterloo, City workers are expected to have cleared streets within the following timelines.
The MMS also require municipalities to regularly monitor weather forecasts so that they can properly respond to snowstorms, freezing rain and other significant weather events.
Liability for Personal Injury on Sidewalks, Parking Lots and Walkways
The Occupiers’ Liability Act requires all property owners, managers and occupiers to take reasonable steps to keep persons coming onto their property safe. So, if a person slips, falls and is injured on an icy or slippery sidewalk or parking lot, and the property owner didn’t take proper steps to clear the ice or snow within a reasonable time, the property owner may be held liable for injuries that were sustained due to the unsafe condition. However, businesses (such as stores, restaurants and office buildings) tend to be held to a higher standard than homeowners, in terms of having adequate procedures in place for dealing with snow and ice accumulation or other unsafe conditions that may arise on their property.
Municipalities are also expected to keep city-maintained properties safe and free of ice and snow, within the standards set out in the Municipal Act. This means that walkways and parking lots for hospitals, public recreation facilities, schools and bus stops need to be cleared and salted or sanded on a timely basis. And, if someone is seriously injured after slipping and falling on a property maintained by the City of Kitchener, Waterloo or Cambridge, the municipality may be found negligent and liable for any losses arising from the injury.
The standards for maintaining municipal sidewalks require the City to be ‘grossly negligent’ before the City will be found liable for personal injuries resulting from ice and snow on City-maintained sidewalks. A municipality may be deemed to have been ‘grossly negligent’ if the City does not have systems in place for clearing ice and snow from its sidewalks, or if the City should have reasonably known, or knew, that the sidewalk was slippery or icy but didn’t take reasonable actions to fix the slippery condition at the time of the accident.
In any circumstance where someone is injured as a result of a slippery road, walkway or parking lot, the injured person may have grounds to file a lawsuit against the property owner or municipality that was responsible for fixing the unsafe condition. Below are several civil actions that arose after a person was seriously injured and sued for damages.
In Bramer v. City of Hamilton (2015), a woman brought a lawsuit against the City of Hamilton after she slipped, fell and was injured. The slip-and-fall accident occurred while the woman (the plaintiff) was walking to work on a heavily used sidewalk along a steep section of Arkledun Avenue. A recent light snowfall hid a layer of compacted and icy snow and, combined with the steep grade, this circumstance caused the plaintiff to slip and fall backwards and hit her head on the ground.
A metal handrail had been installed along one side of the sidewalk along its steepest section; however, the handrail was broken and leaning away from the sidewalk at the location where the plaintiff fell, and a pedestrian would have to lean and likely lose their balance if they tried to hold onto the decrepit handrail. The handrail had been broken for about a year, so the City should reasonably have known about this state of disrepair.
With regards to the location of the slip-and-fall accident, there was no evidence that the City of Hamilton had done anything to maintain or clear the sidewalk in the 22 days before the accident and about 15 inches of snow had fallen during that time period. The Court concluded that the City’s failure to remove snow, or salt or sand the sidewalk for many days, supports a finding of ‘gross negligence’. Further, the City’s failure to properly maintain the handrail in a usable condition is another element to support ‘gross negligence’.
Although the plaintiff was wearing running shoes rather than boots when she fell, the Court held that there is no evidence that running shoes have worse grip than most boots; therefore, the plaintiff was not found to be contributorily liable for her accident. The Court held that the City of Hamilton was fully liable and required to pay damages to the plaintiff in the previously agreed to amount.
Costerus v. City of Kitchener (2017) is a civil action that arose after a woman slipped and fell at about 7:45 a.m., on a sidewalk along Stirling Avenue near Weber St. The location of the accident was an area of high pedestrian traffic since it was near a secondary school and also at the location of a bus stop for City busses and school busses. On the day of the accident, the sidewalks on Stirling were icy with a light snow covering, except in areas where homeowners had cleared or salted.
The slip-and-fall accident occurred in late January and weather forecasts indicated that there would likely be a thaw-freeze cycle during the prior evening, which would cause ice formation on City sidewalks. Nevertheless, night supervisors did not make any inspections of sidewalks. Also, the City of Kitchener had no provisions for calling in winter maintenance operators before its regular 7 a.m. start time, even when there were icy conditions, freezing rain or a significant snowfall. The Court found that the City’s policy of not calling its workers to begin before their normal shift in the event of hazardous and icy sidewalk conditions was not reasonable. Kitchener’s policy of not remedying the hazardous conditions was held to be grossly negligent and therefore, the City of Kitchener was found liable for the plaintiff’s injuries. However, in this case, the Court found the plaintiff to be 50 percent contributorily liable for her injuries because she admitted that she saw the icy sidewalk ahead and chose to walk on it anyway rather than taking the road (which had very little traffic at the time) and was also wearing inappropriate footwear.
Giuliani v. Region of Halton (2010), is a lawsuit that was brought after a woman was catastrophically injured in a car accident on Derry Road. The plaintiff’s injuries were serious and initially, life threatening – she sustained several intra-abdominal injuries requiring surgery, injuries to her spleen and bowel, and multiple orthopaedic injuries to her leg and shoulder. The plaintiff’s damages were assessed at $750,000, leaving only the question of liability to be determined.
The accident occurred during the plaintiff’s morning commute to work. Derry Road is a ‘Class 1’ road in the City of Milton and thus requires priority treatment, but the road was covered with snow that had been compacted by traffic and was icy at various locations. There was evidence that snow had been forecast on the day before the accident and it had begun snowing at 4 a.m., about three hours before the crash. However, the municipality did not patrol the roads or respond to the onset of the snow storm by calling out salt spreaders soon after the snow started, or as soon as would be practical. And, on the date of the accident, the Municipality did not have a system for routinely patrolling the roads to check for unsafe conditions. The Court ruled that the Municipality could reasonably have been expected to know that Derry Road was in a state of disrepair and should have taken reasonable steps to properly maintain the road, and the municipality’s failure to take proper steps created an unreasonable risk of harm to road users.
The speed limit on Derry Road is 80 km/hr, but the plaintiff was driving slower (likely 50-60 km/hr) due to the slippery conditions, when she lost control and collided with an oncoming car. There was evidence that the plaintiff knew the road was slippery and almost lost control at another point before the accident but then regained her same speed. The judge in this case concluded that plaintiff was driving too quickly for the road conditions and, “the slippery road conditions at the scene of the accident were foreseeable to a reasonably prudent motorist”. On these grounds, the plaintiff and defendant were each found 50 per cent liable for the plaintiff’s damages.
In Shweihat v. Greti Development Co. Limited, (2015) a woman brought a civil action against the defendants (the owner of an apartment building and the contractor hired to perform winter maintenance) after she slipped and fell on ice in the apartment building parking lot. The injured woman (the plaintiff) was visiting her grandmother who lived in the apartment building and she parked her car near the apartment entrance. She had exited her car and was carrying her young son in a car seat and walking carefully, noting that the surface was slippery, when her right foot slid up and she fell backwards and sustained serious injuries to her leg.
In response to the lawsuit against them, the contractor denied liability in the accident and filed a cross-claim against the apartment owner. The slip-and-fall occurred on March 7th, and the winter maintenance contractor had only been hired on February 16th and at that time, the parking lot was allegedly in dismal condition with 6 inches of ice built up on the ground and around the tires of vehicles that had been parked there for some time. In the weeks before the accident, the contractor had used a bobcat to remove ice and had salted in open areas, but nothing was done to chip away the ice or apply salt near and between the parked cars, and the contractor expressed the opinion that this couldn’t be achieved unless the cars were moved.
The judge noted that the contractor was hired to remove all the ice from the parking lot, not only in the area where there were no parked cars. He further asserted that the presence of 4 or 6 inches of ice between the parked vehicles, including cars that were only temporarily parked, created as much of a hazard for tenants and visitors as the ice that was in the remainder of the parking lot. The judge concluded that evidence suggests that the contractor did not reasonably and fully comply with his winter maintenance obligations. Further, “even without expert evidence as to the standard of care of a reasonable contractor under these circumstances” the evidence suggests that the contractor did not take all reasonable care to clear the ice and snow where the plaintiff exited her vehicle. Further, the judge believed that these actions (or inaction) caused the plaintiff to fall and sustain a significant injury “that was certainly foreseeable”. Therefore, the defendant contractor failed to establish that there is no genuine issue requiring a trial, and the judge agreed with the plaintiffs that the matter should go to trial.
Winter accidents, including slip-and-fall accidents and car accidents, can result in serious and permanent injuries that can be life-altering. If you or a loved one became injured and your injuries likely resulted because a property owner or municipality failed to take reasonable steps to clear ice and snow, visit Dietrichlaw.ca or call 519 749 0770 to find out whether you have a claim for compensation.