It's not just tobogganing'; Sledding bans a symptom of growing lawsuit paranoia at the municipal level
(James Marsters/QMI Agency File Photo)
While tuque-clad Canadians take to the slopes in defiance of tobogganing bans, the quintessential winter pastime remains in danger so long as cash-strapped municipalities cower in fear of personal injury lawsuits.
In recent years, a handful of municipal governments across Ontario have restricted or outright banned tobogganing on public land, and others across the country are considering following suit.
"These huge lawsuits can really overwhelm a municipality," Orangeville, Ont., Mayor Jeremy Williams said.
Orangeville recently made headlines for posting a big "No Tobogganing" sign on a hill specifically built for tobogganing.
The ban on Murray's Mountain has been in place since the city bought the land from the school board 2009, but it's never been enforced. In fact, most residents didn't even know it existed until a new sign was erected this winter.
"It's really quite absurd when you think about it -- having a tobogganing hill where you can't toboggan," Williams said.
But the city had no choice, Williams said. Its insurance company mandated the sign.
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Even with signs, municipalities aren't safe.
Despite having a citywide sledding ban since 2003, Hamilton was ordered to pay $900,000 in 2013 to a man who injured his spine when he hit a snow-covered drainpipe while tobogganing on a city hill in 2004. There were signs, but the plaintiff said he didn't see them.
Robert Durante, a partner at the personal injury law firm Oatley Vigmond in Barrie, Ont., litigated a similar successful tobogganing lawsuit against an Ontario municipality a decade ago, in which a man suffered a serious spinal injury crashing into a makeshift snowboarding ramp someone left in the park. If the city had been as diligent about maintaining the park in the winter as in the summer, that never would have happened, Durante said.
"I suspect some of the municipalities just don't want to go to the trouble or inspecting parks in the winter time and making it safe, so they just ban it."
Banning sledding certainly hasn't stopped them in Orangeville.
Last Sunday, local families held a protest "sled-in," tobogganing down the hill in defiance of the rules. Mayor Williams was there, handing out hot chocolate.
More than 6,000 Hamiltonians have signed a petition against that city's longtime ban. Local artist Laura Cole even wrote a protest song about it.
Durante says municipalities are "overestimating" the risk of lawsuits anyway.
"I'm in business of filing lawsuits, so I hope that comes as a bit of a relief to risk managers," he said.
But it only takes one successful litigation to drive up insurance costs and make local governments wary, the Association of Municipalities of Ontario said.
"It's not just tobogganing. It's public activity in public places," AMO executive director Pat Vanini said. "In some communities, they're closing down their trails, they're taking play equipment out of the playgrounds to reduce their risk to exposure to insurance costs. I'm not sure those are the kind of communities we want to see."
The culprit behind this phenomenon in Ontario is something called "joint and several liability," Vanini said. Under this model, if some parties in a lawsuit are unable to pay damages, any other defendant can be ordered to pick up the slack.
Vanini and says municipalities are often unfairly targeted in these lawsuits because of their deep pockets, even when they only shoulder a small portion of the blame. That drives up insurance costs, she said, and taxpayers pay the price.
They want Ontario to cap the amount municipalities can be liable for.
Christine Burke, a spokeswoman for Ontario Attorney General Madeleine Meilleur, said joint and liability is "unlikely to apply to tobogganing cases."
What's more, she said the province examined the issue last year and "did not see enough evidence that making changes to joint and several liability would have an impact on insurance costs."
Williams, who has spent the last few weeks ensuring his townspeople they won't be arrested for tobogganing on a tobogganing hill, disagrees.
"It might take a good old Canadian toboggan to knock some sense into the premier," he said.