Court of Appeal for Ontario

Date: 2018-05-30 Docket: C63202

Judges: Feldman, MacPherson and Rouleau JJ.A.

Between

Andrea Martin and Errol Martin Plaintiffs (Appellants)

and

The Corporation of the City of Barrie and Heritage Park (Barrie) Inc. Defendants (Respondents)

Counsel

Harvey Klein, for the appellants

Stuart Zacharias, for the respondents

Heard: May 28, 2018

On appeal from the judgment of Justice Joseph Di Luca of the Superior Court of Justice, dated January 17, 2017.

Reasons for Decision

[1] The appellants, Andrea and Errol Martin, appeal from the judgment of Di Luca J. of the Superior Court of Justice dated 17 January 2017, dismissing their action in negligence against the respondents.

[2] On February 5 and 6, 2011, the City of Barrie hosted a Winterfest and Festival of Ice event. Approximately 20,000-25,000 people, including many families with children, attended the Winterfest. The Martin family, Andrea and Errol and their two small children, were among the attendees.

[3] One of the activities at the Winterfest was a snow slide. It was intended to be used primarily by children, but adults were also welcome to use it.

[4] The two Martin children went down the slide. They were not injured. Ms. Martin then went down the slide. Near the bottom, she dug in her heels to slow herself and her buttocks struck a piece of hardened ice protruding from the snow cover of the slide. She was injured, suffered immediate pain, and continued to suffer pain for some time after the accident.

[5] Following a five day trial, the trial judge found that Ms. Martin's injury was caused by the ice on the snow slide:

Ms. Martin's efforts to slow her descent by digging her feet into the snow is likely what caused the small ice chunk to become dislodged of uncovered from the snow. The contact between the bottom and the ice chunk is what caused an injury, likely a bruise, to her coccyx or tailbone area.

[6] However, the trial judge did not find that the municipality had breached the appropriate standard of care with respect to the snow slide:

I find that in the circumstances of this case, the standard of care was satisfied. The City of Barrie took adequate and reasonable steps to safeguard the guests using the snow slide at Winterfest. The context is important. The snow slide is a gradually sloped hill on which patrons slide down on their "bottoms." While specific measurements were not tendered into evidence, the pictures tendered into evidence suggest that the hill is neither steep nor tall. Guests are not using devices such as sleds or toboggans which would ordinarily be used to add speed to the descent. The evidence suggests that guests come a quick stop at the bottom of the slide.

Grounds of Appeal

[7] The appellants advance three grounds of appeal.

First Ground: Characterization of the Ice Chunk

[8] The appellants contend that the trial judge made a palpable and overriding error by concluding that the ice chunk that Ms. Martin struck was "small".

[9] We do not accept this submission. Ms. Martin herself testified that she did not see the ice chunk until after she struck it and she described it as about four to six inches in size. Accordingly, the trial judge's characterization of it as "small" was entirely justified.

Second Ground: Hearsay Evidence

[10] Second, the appellants submit that the trial judge erred in the inference he drew from the hearsay utterance ("I have to fill this again") of an on-site City of Barrie employee that Ms. Martin heard immediately after she was hurt.

[11] We are not persuaded by this submission. We see no error in the trial judge's conclusion on this issue:

The spontaneous utterance of the City of Barrie employee supports the position of the defendants as it demonstrates that the employee stationed at the bottom of the slide in the landing area was paying close attention to the condition of the landing and moved quickly to fill in a gap or patch in the snow as would be expected. The fact that it appears from the utterance that this was not the first time this remedial step was required does not alter the analysis as I do not find that the utterance demonstrates an awareness of the hazard posed by the chunk of ice that caused the injury.

Third Ground: Standard of Care

[12] Third, the appellants contest the trial judge's conclusion (set out in para. 6 above) relating to standard of care. They contend that the City of Barrie invited the public to ride the slide and that, in this context, it did not provide "a system of regular inspection and maintenance of the run-off area of the busy slide".

[13] We do not accept this submission. We begin by observing that the standard of review in the vast majority of negligence cases, which by definition involve questions of mixed fact and law, is palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33.

[14] In our view, the trial judge made no error of any kind – let alone a palpable and overriding error – in his analysis of the evidence and his application of the relevant negligence law principles to the evidence at this trial. He did not ignore the evidence relating to inspection and maintenance. He said:

Staff are positioned at the top and bottom of the hill, observing and directing the flow of guests. Staff at the bottom of the hill are equipped with a shovel and instructed to smooth out the landing and fill in patches in the snow. It is expected that the staff will remove hazards should they become aware of any. The landing area is fenced off and adequately supervised.

Regrettably, Ms. Martin hit a small chunk or piece of ice that was buried in the snow at the base of the slide in the landing area. In my view this was a not a hazard that the City of Barrie should have been reasonably required to address in order to meet the standard of care. While I appreciate that a more rigorous inspection process and perhaps the use of a rake to comb the landing area might have uncovered this hazard, in my view, this places too high an onus on the City of Barrie. The standard is not one of perfection, rather it is reasonableness. In view of the activity in question and in view of the circumstances as I have found them, I do not believe that the City of Barrie should be held liable for this unfortunate injury.

[15] We see no error in this analysis.

Disposition

[16] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $5,000, inclusive of disbursements.

K. Feldman J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.