Personal injury claims for sidewalk falls are a special case of trip, slip and fall claims. Unlike cases of falls on private property, sidewalk falls are affected by provisions of the Municipal Act, 2001.
Section 44. (1) of the Municipal Act, 2001 creates a duty on a municipality to keep its highways or bridges in a state of repair that is reasonable in the circumstances. In this context the word highway is interpreted to include sidewalks (See Worthey v. City of Hamilton, 2015 ONSC 3690 (CanLII), 2015 ONSC 3690 (S.C.J.) for example). The circumstances to be taken into account include the character and location of the sidewalk.
In assessing the liability of a municipality for injury caused by sidewalk falls a two step analysis is used.
The First Stage of Analysis
The first step requires the personal injury claimant to prove that the sidewalk in question was not kept by the municipality in a state of repair reasonable in the circumstances, including its character and location.
The location of a sidewalk may vary from being on a small residential street to a busy retail or commercial street. Areas of high pedestrian traffic require a greater attention and scrutiny in respect of design, construction or maintenance on the part of the municipality. A previous accident history at the sidewalk location can also be a factor affecting the level of maintenance required by the municipality.
Often sidewalk falls may be caused by an unreasonable discontinuity or height differential between horizontal planes of sections of sidewalk. It is the differential in the horizontal planes of adjacent sections of sidewalk as experienced by pedestrians that is relevant to the assessment of reasonableness as stated in Barbeau v City of Kitchener, 2017 ONSC 24 (CanLII).
It has even been said that there is a judicial rule of thumb whereby height variations between sidewalk sections of ¾ of an inch or more are often considered to be in a state of non-repair. This was the case in Worthy where the sidewalk fall took place in an area of at least average pedestrian traffic for a busy city street. The same height discrepancy of ¾ of an inch on a quiet residential street of single family homes was found to meet the standard of reasonableness in Furlong v. City of Cambridge, 2009 CanLII 72077 (ON SC).
It is important to bear in mind that the fact that the accident happened does not in and of itself prove the existence of an unreasonable state of non-repair. The standard is one of reasonableness not that of perfection.
The Second Stage of Analysis
Even if it is proven that the sidewalk was not kept in a reasonable state of repair it does not mean that the injured person will succeed in a claim. This is because the legislation provides a municipality with certain specific defences. The second stage of the analysis is to determine whether the municipality can rely on these defences. As stated in Furlong the municipality has the onus of proving that it can do so.
These defences are found in section 44. (2) of the Municipal Act, 2001. A municipality is not liable for failing to keep the sidewalk in a reasonable state of repair if:
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the sidewalk;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under the legislation applied to the sidewalk and those standards were met.
The language used is disjunctive so the municipality only needs to prove the existence of one of the conditions to succeed in its defence.
The existence of a system of inspection is relevant to the issue of whether a municipality ought to have known of a state of disrepair.
Provincial Minimum Maintenance Standards
The adoption by a municipality of the Provincial Minimum Maintenance Standards (PMMS) displaces an assessment of the reasonableness of the municipality’s maintenance of the sidewalk. An assessment of the performance of the municipality measured against the PMMS takes place instead. The PMMS also addresses height discrepancies which may be representative of what is a reasonable height discrepancy in the circumstances of a particular case.
Anyone injured in a sidewalk fall caused by snow or ice, must act promptly in giving notice to the municipality. A lawyer should be consulted for specific advice concerning compliance with time limitation and notice provisions.