



COURT OF APPEAL FOR ONTARIO

CITATION: Martin v. Barrie (City), 2018 ONCA 499

DATE: 20180530

DOCKET: C63202

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)

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. Martins
    injury was caused by the ice on the snow slide:

Ms. Martins 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.

[7]

The appellants advance three grounds of appeal.

[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 judges characterization
    of it as small was entirely justified.

[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 judges
    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.

[12]

Third,
    the appellants contest the trial judges 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.

[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.


