Gross Negligence 101
According to Section 44(1) of the Municipal Act, 2001 (the “Municipal Act”) and Section 42(1) of the City of Toronto Act, 2006 (“Toronto Act”), municipalities are obligated to maintain highways and bridges within their jurisdiction in a reasonable state of repair. While sidewalks are not defined in either of these acts, the case law indicates that the sidewalk is a portion of the highway which a municipality must keep in a reasonable state of repair. Consequently, a municipality has a duty to keep the sidewalk in a reasonable state of repair. Pursuant to section 44(9) of the Municipal Act (and Section 42(5) of the Toronto Act), there is no liability for a municipality for personal injury caused by snow or ice on a sidewalk except where there is gross negligence by the municipality. At trial, the onus will be on the Plaintiff to prove on a balance of probabilities that the sidewalk was in a state of disrepair. If the Plaintiff establishes that the area of the fall was in an unreasonable state of repair, the onus will shift to the municipality to prove that it was not grossly negligent.
A review of the case law reveals that Courts have consistently noted that the term “gross negligence” defies a precise definition. As a result, the way that the Court has defined this term has fluctuated over time. There was a time where the Court defined gross negligence as “very great negligence.”  In more recent times, the Court noted that gross negligence does not require proof of misconduct that is “willful, wanton or flagrant.” While the Courts have rejected the idea that the conduct must be flagrant, the Court has acknowledged that gross negligence “must be more than a breach of a duty of care.” As such, it appears that the municipality still faces a duty which offers more protection than the ordinary duty of care which faces other types of Defendants (e.g. occupiers under the Occupiers’ Liability Act). Nevertheless, a precise definition of this term has evaded our Courts.
While defining the term “gross negligence” is a difficult task, the Court has broken down the essential considerations into a two-part test:
- Was the municipality’s general policy with respect to ice and snow a reasonable one?
- Was the defendant’s municipality’s response on the occasion in question (that is to say the implementation of its policy) reasonable? 
As with any situation where the Court is asked to assess reasonableness, this test affords the trier of fact with wide discretion to consider a multiplicity of factors in deciding what was reasonable in the circumstances. While the list of factors to be considered is not exhaustive, the Court has noted the following factors:
- notice, actual or imputable, of the impugned condition;
- extent of risk which the condition presents;
- the character and duration of the impugned condition; and
- the comparative ease or difficultly of addressing the condition.
One of the key factors which will be considered is the prominence of the location. To this end, the Court has often relied on the ratio in Huycke v. Cobourg where the Court of Appeal stated as follows:
The law is well settled that if a municipality permits a slippery, icy sidewalk in a thickly peopled part of the municipality to remain unprotected or ignores it altogether, and someone is injured, that would constitute gross negligence.
Another factor which is often emphasized by the Court is the duration of the impugned condition. Generally, the longer the condition exists (on the evidence) the more likely a finding that the municipality ought to have been aware of the condition. Nevertheless, neither duration nor any other single factor will be determinative of gross negligence in any given case as the Court is bound to consider the interplay of all of the relevant factors to decide whether the municipality has been grossly negligent.
Gross Negligence Decisions in the Ontario Court of Appeal
How has gross negligence been treated by the highest Court in Ontario? The issue of gross negligence has not been dealt with by the Court of Appeal very often in recent years. Arguably, this makes it even more important to scrutinize and understand the cases which have reached the Court of Appeal. We summarize the more recent Court of Appeal decisions as follows:
Crinson v. Toronto
In Crinson, the Plaintiff slipped and fell on February 4, 2004 on an icy sidewalk in a busy section of the City of Toronto. At trial, the Court found that the Plaintiff failed to prove that the City was grossly negligent. Here the evidence of the Plaintiff and an independent witness was that the “sidewalks everywhere” were very slippery. The weather records indicated that the prevailing weather consisted of ice pellets, snow, rain showers and temperatures fluctuating between freezing and thawing. In the face of this weather, the Court noted that the City deployed its sidewalk winter maintenance contractor prior to the Plaintiff’s incident; however, the prevailing evidence also indicated that the contractor had not reached the subject location prior to the slip and fall. Nevertheless, at trial, the Court accepted that the City was monitoring the weather and it deployed its contractor as the weather revealed that the temperatures were getting colder as the day progressed. In finding that the City was not grossly negligent, the Court noted as follows:
All municipalities, especially large cities, have a monumental task to keep the public safe during all sorts of winter conditions. Roadways take priority over sidewalks.
On appeal, the Court found that the trial Judge erred in failing to appreciate that the Plaintiff’s argument was that the City was grossly negligent for failing to deploy its contractor earlier (as opposed to criticizing the City for not completing the work faster). While the trial Judge appeared to accept that roadways were a priority over sidewalks, the Court of Appeal’s analysis tends to disagree with this proposition. Instead, the Court of Appeal relied on the road maintenance which was carried out as evidence that the City was aware of icy conditions on the sidewalk. In particular, the Court relied on the fact that the City called out road salters during the early hours of February 3, 2004 (i.e. 34+ hours prior to the slip and fall) with no corresponding action on the sidewalks until 2:00 p.m. on February 4, 2004. As a result, the Court of Appeal noted that “the evidence at trial established that almost 34 hours elapsed from the time the City became aware of the dangerous sidewalk conditions and when it responded.” Consequently, the Court found that the City was grossly negligent for failing to commence sidewalk salting earlier.
The significance of the Court’s decision in Crinson is that the Court criticized the municipality for prioritizing its roads over its sidewalks. To this day, many municipalities are still prioritizing their roads over the sidewalks. This decision, on its own, is not necessarily determinative of gross negligence. The ultimate point is that the decision to deploy on the roads is a factor which can be considered by the Court in deciding whether the municipality was aware of icy conditions on the sidewalks and whether the municipality should have deployed sidewalk forces sooner. It is important to note that the Court of Appeal placed some weight on admissions from City that that icy conditions would exist “as much on the road as on the sidewalk.” Consequently, this appears to have opened the door to the argument that the City ought to have been aware of icy sidewalk conditions when it became aware of icy road conditions. Further, it appears that the Court was critical of the fact that the City had no explanation for why the roads were prioritized over sidewalks. Whatever the basis for the criticism was, the result is that all municipalities need to be alive to the risk faced if a choice is made to prioritize the maintenance of the roads over the sidewalks. At a bare minimum, such conduct will open the municipality to criticism and will necessitate an explanation from the municipality as to why such conduct was reasonable. There may well be rational explanation for differential treatment of the roads vs. the sidewalks. Vehicle traffic poses different demands and interacts with salt and sand differently than pedestrian traffic. However, in the absence of a reasonable explanation, municipalities should mobilize their forces for both roads and sidewalks on the same principles, namely to ensure public safety. Once the forces have been mobilized, a form of prioritization may be acceptable given the resources available. These are issues that should be addressed by defence counsel when faced with a slip and fall claim on a snow covered or icy sidewalk.
Billings v. Mississauga
Billings is the most recent gross negligence case to reach the Court of Appeal. The appeal decision simply upheld the trial Judge’s finding that the municipality had not been grossly negligent. Consequently, the appeal decision does not provide a detailed analysis on the gross negligence principles. Nevertheless, the value of Billings is that the trial Judgement was confirmed by the Court of Appeal, giving it some additional weight.
In Billings, the Plaintiff elected to walk to his local convenience store after a “vicious late winter storm” which ran from April 3, 2003 to April 7, 2003. Here the City had a policy that all sidewalks would be cleared within 36 hours of the end of a storm and the Plaintiff’s fall occurred within 50 hours of the end of the storm event. Nevertheless, the Court accepted that this particular storm was “an extraordinary atmospheric event” which left a frozen mixture on the ground which was almost impossible to remove. To this end, the City relied on evidence from a local storm watcher who was a photographer and cinematographer. The Court noted that the evidence from this individual was “most interesting” and that his photographs and video spoke for themselves with respect to the conditions which existed following this storm. On top of this evidence on the weather, the Court noted that “Herculean efforts” were required by the municipality’s employees to remedy the “dense frozen concoction which had adhered to the sidewalk in question.”
In result, the Court found that the municipality had done everything humanly possible to meet the City’s target of cleared sidewalks within 36 hours of the end of a storm. Although the City was unable to meet its own policy on the level of service it had adopted, the Court found that the City’s response was completely reasonable and, therefore, not grossly negligent. In reaching this decision, the Court considered the result in Crinson. In Billings, the Plaintiff argued that Crinson stood for the proposition that the existence of a slippery sidewalk for many hours after the City became aware of the slippery conditions is proof in and of itself of gross negligence. In rejecting this position, the Court noted that there was no explanation in Crinson why the roads had been addressed prior to the sidewalks. As such, the Court distinguished the result in Crinson and found that there was an “abundance of reliable and convincing evidence” as to why the sidewalk maintenance was delayed and why it was still incomplete 50 hours after the storm had ended.
The result in Billings is important for municipalities as it sets out a framework for analyzing a gross negligence claim which has been adopted and repeated by the Courts since then. Under this framework, the first question is whether the City has a reasonable policy in place to address sidewalk winter maintenance. The next step is to consider whether the City adhered to this policy. For municipalities and defence counsel alike, the object is to ensure that there is sufficient evidence to prove that the municipality adhered to a reasonable level of service policy.
Billings is also a useful precedent as it demonstrates that a failure to adhere to an adopted level of service is not necessarily determinative of liability so long as there is cogent and convincing evidence to explain why the municipality did not comply with its policy. In reading the decision, it is clear that the Court was struck by the sheer size of the task which faced the municipality. This will not be present in every case as cataclysmic storms such as this are not very frequent.
Recent Ontario Court Decisions
Slip and fall claims against municipalities are not a rarity; nevertheless, reported decisions involving the gross negligence defence do not surface that often. There were no reported trial decisions in 2012, 2013 or 2014 involving gross negligence. 2015 and 2016 produced three reported decisions. Given the rarity of these types of decisions, it is important for risk managers and municipal defence lawyers to be aware of these cases. What follows is a summary of these 2015 and 2016 trial court decisions.
Zaravellas v. Armstrong
Zaravellas is a gross negligence case which may be missed by some since the issue is embedded deep within the reasons of a companion personal injury action (the gross negligence case starts at paragraph 152 of the decision). In the end, municipal defence lawyers will want to be aware of this decision as it is a gross negligence case which the municipality successfully defended. It is clear and evident from the decision that the Plaintiff’’s credibility (or lack thereof) was operative in the decision. Consequently, the result also demonstrates the importance of credibility to a successful gross negligence defence.
Zaravellas involved a slip and fall which was alleged to have occurred on a City of Toronto sidewalk on December 23, 2007. At trial, the Plaintiff testified that the subject sidewalk was “very bad” and covered with a layer of ice at least one inch thick. Based on the Plaintiff’s description, this was certainly the type of condition which could ground a finding of gross negligence. Nevertheless, the Plaintiff’s allegations did not carry the day as the Court did not accept his evidence regarding the condition of the sidewalks. The Plaintiff’s credibility (or lack thereof), was an essential consideration. Rather than accepting the Plaintiff’s evidence on the condition of the sidewalk, the Court reviewed the prevailing weather records (which pointed to positive temperatures) as well as the City’s road patrol records (which pointed to “bare and dry” road conditions and positive air temperatures) in support of a finding that the sidewalk used by the Plaintiff was not in a dangerous condition on December 23, 2007. Consequently, the Plaintiff failed to satisfy the initial onus of proving that the sidewalk was in a state of disrepair.
The Court also found that the City’s level of service policy was reasonable and, therefore, the City was not grossly negligent. In arriving at its decision, the Court provided the following analysis:
The clearing of snow and ice in a city the size of Toronto is a mammoth task. The City has a duty to ensure roads and sidewalks remain in reasonable condition after a snowfall. Those roads, however, are not required to be in perfect condition: Theiventhirampillai v. Balakrishnan, 2012 ONSC 215 (Ont S.C.J.). Nor can the City reasonably be expected to clear every inch of road or walkway used by the public: Richer v. Elliot Lake (City), 2011 ONSC 8017 (Ont. S.C.J.); Huycke v. Cobourg (Municipality),  O.R. 682 (Ont. C.A.)
At paragraph 169 of the decision, the Court noted that: There is no doubt that the City had in place mechanisms to both observe and deal with the presence of snow and ice on roads and sidewalks. In reviewing the prevailing weather records and the road patrol records, the Court found that the mild weather did not warrant salt on the roads. As such, the Court rejected the Plaintiff’s suggestion that the sidewalks were icy due to a possible freeze thaw cycle.
It is questionable whether the result in Zaravellas would have been the same with a more credible Plaintiff. The Court was critical of Mr. Zaravellas’ “general veracity as a witness” and the inconsistency of his testimony. With a credible Plaintiff, the Court may have had more questions as to the exact condition of the sidewalk on the day in question or may have been inclined to accept the Plaintiff’s arguments regarding a freeze thaw cycle. In the end, the result will assist municipalities and their counsel in characterizing the sheer magnitude of the task assigned to municipalities in maintaining its sidewalk infrastructure.
Cumberbatch v. Toronto (City)
Cumberbatch is a case which demonstrates that discrepancies in a municipality’s records can be fatal for the municipality’s ability to establish the gross negligence defence. Unlike Zaravellas, the credibility factor in Cumberbatch weighed in the Plaintiff’s favour. To this end, the Court began its reasons by describing the Plaintiff as “a stately woman who walks with a limp and a cane.” Clearly, the Plaintiff left a favourable impression on the trier of fact.
In Cumberbatch, the Plaintiff was a 71 year old visitor from Barbados who slipped and fell on March 1, 2010 on a municipal sidewalk in Toronto. The Plaintiff maintained that there had been no maintenance of this sidewalk since 1:23 a.m. on February 27, 2010 (i.e. 2 days prior). With regards to the state of repair of the sidewalk, the decision is unclear as to the extent of the icy condition. At paragraph 86 of the decision, the Court notes that the only direct evidence on the state of the sidewalk was the evidence of the Plaintiff. The Court accepted the Plaintiff’s evidence and found that there was ice and snow on the sidewalks along Pine Street on March 1, 2010.
The real issue in Cumberbatch was that the maintenance carried out by the City did not match the information in its records about the work that was supposed to be done. The City’s records for February 27, 2010 indicated that sidewalk crews were to be deployed from 6:00 a.m. to 5:00 p.m. on February 27, 2010. The ploughing records from the City’s winter maintenance contractor indicated that it was last deployed on the subject sidewalk on February 26, 2010 from 1:30 p.m. to 2:30 a.m. on February 27, 2010. GPS data indicated that the contractor had last been on this sidewalk at approximately 1:30 a.m. on February 27, 2010; however, no subsequent deployment occurred on this route in the 6:00 a.m. to 5:00 p.m. timeslot which was indicated in the City’s records. The Court also questioned what type of work had been carried out at this location during the deployment on February 26, 2010. The Court was critical of the fact that the City failed to request the GPS records from the contractor within 30 days. As a result, it was not possible to confirm whether the sidewalk had been salted on February 26, 2010. In the final analysis, the Court was heavily critical of the City’s failure to adhere to its own winter maintenance system. As in Zaravellas, the Court found that the City’s system was reasonable. Nevertheless, the Court found that, in failing to deploy forces on February 27, 2010, the City failed to follow its own system. The Court did not accept that the deployment indicated in the record for February 27, 2010 was a “cut and paste” mistake. It found that the City was aware that it was important that the information in the records be accurate, that it took no steps to correct the erroneous information in subsequent releases of the record and that the allegedly erroneous information was consistent with the balance of the available notes and records. On this basis, the Court found that the City made a decision to deploy sidewalk crews on February 27, 2010 but no deployment occurred. As the City knew that conditions warranted deployment on February 27, 2010, the Court found that the City had knowledge of the icy sidewalk for 47.5 hours prior to the Plaintiff’s fall and it failed to take any steps to “render the sidewalk safe.” As such, the Court found that the City’s action amounted to gross negligence.
The result in Cumberbatch demonstrates that accurate records are vital to a successful gross negligence defence. As argued by the City’s witnesses, it may very well have been that the weather from February 27, 2010 to March 1, 2010 did not necessitate a further deployment. Nevertheless, where the records speak to the contrary, it can be difficult to put forward sufficient evidence to “explain away” an erroneous record. This is particularly true when one is dealing with a credible Plaintiff.
Bramer v. Hamilton (City)
Bramer involves a consideration of the ten day notice defence and the gross negligence defence. For the purpose of this article, the focus will be on the gross negligence portion of the case.
In Bramer, the 49 year old Plaintiff slipped and fell on February 3, 2009 on a steeply inclined sidewalk which came down the mountain into downtown Hamilton, Ontario. Here the Plaintiff complained about two conditions which contributed to her fall. First, she complained about hard packed snow which was covered by freshly fallen snow. Second, she complained about a handrail next to the sidewalk which was in a “decrepit state” which resulted in it leaning away from the municipal sidewalk. On the day of the slip and fall, the Plaintiff was walking to work on the same heavily used municipal sidewalk that she used on most days. On this day, it began to snow as the Plaintiff began her commute. By the time she arrived at the declining segment, approximately half to one inch of snow had accumulated. Given the leaning handrail, the Plaintiff alleged (and the Court accepted) that she was unable to reach the handrail as same was not accessible.
For its part, the City’s witness explained that the City primarily used its own forces to clear its sidewalks. The City had a priority system wherein the first priority was road clearing and the next priority was the sidewalks. There was also a priority system for the sidewalks as school sidewalks were cleared first, then bus stops and then sidewalks abutting City owned properties. After a careful review of the City’s records on cross examination, the City’s witness acknowledged that the last time the City had done manual clearing at the location was on January 22, 2009 (i.e. 22 days prior). The last salting occurred on January 16, 2009 (i.e. 18 days prior). In the intervening period over 30 cm of snow had fallen.
As a result, the Court had little difficulty in reaching a finding of gross negligence. The Court commented that the City did no snow removal or salting “for many days prior to the fall” despite clear evidence of “appreciable” snowfalls. Interestingly, the Court did not comment on whether the City’s winter maintenance practices were reasonable in the circumstances. Given the absence of maintenance in the days prior to the incident, it appears that there was no need for the Court to assess whether the system was reasonable in the circumstances. Once again, the Plaintiff’s credibility, and the credibility of an independent witness, was an important factor. To this end, the Court noted that the Plaintiff and her witness were both “honest, candid and forthright” witnesses. Consequently, the Court accepted the Plaintiff’s evidence regarding the condition of the sidewalk both before and at the time of the fall. Given the evidence regarding the preceding weather conditions, it was likely easy for the Court to accept the Plaintiff’s evidence on the conditions of the sidewalk.
As with the gross negligence cases which preceded it, the decision in Bramer demonstrates that a gross negligence case involves a careful consideration of the evidence on the weather conditions and the maintenance carried out by the municipality. In short, it is critical that the municipality’s response to winter storm conditions is consistent with its level of service policy and that the maintenance records show a response consistent with this policy. The case also demonstrates the importance of good record keeping. Here, the Court specifically commented on the fact that the memory of the City’s witness was limited to what was contained in the records. As this 2009 incident went to trial in 2015, it is certainly understandable that the witness did not have a vivid recollection of the City’s sidewalk winter maintenance work. Nevertheless, this demonstrates that it is all the more important to ensure that the records provide sufficient information to detail what work was performed on any given day and the reasons for dispatching or not dispatching .
While the definition of gross negligence maintained by our Courts has fluctuated over time, it is evident that the Courts have always treated the gross negligence analysis as a fact specific determination. What is gross negligence? The answer is that it depends on the facts of a given case. What is sufficient to amount to gross negligence in one fact pattern may not even be negligence if the facts are changed. For instance, deciding not to deploy winter maintenance forces for 12 days may not be negligence if the weather during the intervening period was insignificant. From the perspective of the municipality, the starting point appears to be developing a reasonable system of sidewalk winter maintenance. Nevertheless, this is only the starting point, as the cases clearly demonstrate that the municipality must be able to demonstrate through its records that it adhered to its reasonable system.
While each gross negligence case will turn on its own facts, it is important to analyze each case to determine whether the facts are likely to lead to a finding of gross negligence based on similar fact findings in other cases. In view of the decisions in Crinson and Billings, one must question whether you are dealing with a situation where the municipality will be criticized for prioritizing the roads over the sidewalks (as in Crinson) or a situation where there is a reasonable explanation for prioritizing roads (as in Billings). With a view to the more recent trial decisions, in assessing liability the following questions should be asked:
Was the winter maintenance and level of service policy a reasonable policy in the circumstances?
Did the municipality adhere to the policy?
Are the municipality’s winter maintenance records sufficient to prove adherence to the municipality’s own winter maintenance policy?
If the municipality did not adhere to the policy, was the lack of compliance reasonable in the circumstances?
Are the municipality’s winter maintenance records sufficient to prove the lack of compliance was reasonable in the circumstance?
Further, questions should be posed as to whether these records detail winter maintenance work which was responsive to the prevailing weather conditions. In particular, in a world where technology is becoming increasingly important, it is likely that accurate GPS data will be an important part of the municipality’s defence. Consequently, municipalities, adjusters and defence counsel should be inquiring into the GPS data at an early stage of the proceeding with a view to preserving this evidence for production and trial.
 Thanks to Althea Yip for assistance with the research on this article.
 Ransome v. Woodstock 1968 CarswellOnt 329 (HCJ)
 Slater v. Toronto (City) 2004 CarswellOnt 5061 (SCJ) at para 39; Blaquiere v. Burlington (City) 1999 CarswellOnt 2082 (SCJ) McLeod v. General Motors of Canada, 2014 CarswellOnt (SCJ) at paras. 18 – 19
 Kingston(City) v. Drennan (1897), 27 S.C.R. 46
 Dagenais v. Timmins (City) 1995 CarswellOnt 1164 (C.A.)
 Crinson v. Toronto 2010 CarswellOnt 299 (CA) at para 47
 Billings v. Mississauga (City) 2010 CarswellOnt 5732 (SCJ) aff’d 2011 CarswellOnt 2166 (CA)
 Ryan v. Sault Ste. Marie (City) 2008 CarswellOnt 8928 (SCJ) at para. 38
 1937 CarswellOnt 44 (CA) at para. 26
 Crinson v. Toronto 2010 CarswellOnt 299 (CA) rev’g 2009 CarswellOnt 884 (SCJ)
 2010 CarswellOnt 5732 (SCJ) aff’d 2011 CarswellOnt 2166 (CA)
 2016 CarswellOnt 8959 (SCJ)
 2015 CarswellOnt 12071 (SCJ)
 2015 CarswellOnt 7501 (SCJ)