Hitting the tobogganing slopes is a popular and fun winter pastime. But there is a growing trend that municipalities, which worry about injuries and lawsuits, impose tobogganing bans on city properties. But according to Troy Lehman, senior partner at Oatley Vigmond LLP, a full tobogganing ban may effectively put more people on high-risk slopes, and create greater municipal liabilities.
Tobogganing bans have become a hotly debated topic all across Ontario over the past few months with many residents upset at any move to ban a popular winter pastime.The growing trend of tobogganing bans being created by municipalities across Canada may in fact create an entirely new level of unnecessary liability. Injury related lawsuits from tobogganing are rare, difficult to bring to trial and often unsuccessful. Most reputable lawyers will advise clients not to pursue a claim unless a catastrophic injury has occurred. Municipalities that ban tobogganing are taking ablack-and-white approachthat is ineffective and unnecessary.
A new level of liability
By creating a tobogganing ban municipalities may in fact be creating a new and unforeseen liability for themselves. Municipalities tend to own a lot of real estate making it difficult to post signage banning tobogganing on all city owned hills.
Posting signs on popular hills frequented by tobogganers may in fact create an issue of negligence on hills where signs are not posted. Signs on a popular and safer hill may force tobogganers onto less safe slopes where signs are not posted and they are more likely to get injured. Failure to enforce the ban through signage and by-law enforcement may increase the portion of responsibility attributed to the municipality if a case goes to trial.
Similar situations exist in public swimming pools operated by a municipality. Users are accepting a level of self-responsibility when choosing to use the facility. An acceptable level of care obliges the municipality to ensure that it has done all that it can to prevent injury and ensure people enjoy the pool facility in relative safety.
The municipalities of Ottawa and Calgary take the same approach to tobogganing by designating hills that are safer for tobogganing and offering tips on how to stay safe. This is a much more sophisticated and common sense approach.
The long standing ban in Hamilton has not been an effective deterrent to end tobogganing. The ban in Orangeville was an irritation to local residents that created tobogganing parties to protest the ban effectively putting more people on the hill. Simply banning tobogganing does make it go away and more open-minded municipalities are becoming increasingly aware of this fact.
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