This week, the National Post ran a story with the headline, “Tobogganing under threat in the U.S. and Canada: Cities instituting bans after sledding injuries lead to lawsuits”. The story refers to communities in the U.S. and in Canada that are starting to restrict or, in places, outright ban tobogganing. As expected, the title of the article causes the public to believe that personal injury lawsuits are out of control and need to be restricted or limited. Nothing could be further from the truth.

I had the opportunity to speak about this topic on the Lorne Brooker Show on local radio on Tuesday morning. Before going on the show, I looked for past cases in Canada where a municipality was sued for an injury from tobogganing; I could find only 3 decisions in Canadian courts in the past 100 years. While there may be other cases that settled out of court, my experience and the experience of Bonn Law suggests that these cases are still few and far between. In the 12 years I’ve been practicing as a personal injury lawyer, I have had no cases of a person asking me to sue a municipality for a tobogganing injury. In the 42 years that Bonn Law has existed, there has only been 1 case in those 42 years that involved a person suing a municipality over a tobogganing injury. Much ado about nothing.

The bigger story is public reaction. The public comments to the story are overwhelmingly in favour of tort reform to limit or outright prohibit lawsuits against municipalities for tobogganing injuries. This reaction is unfair and unfortunate. I believe that this reaction is a consequence of the article failing to include all of the facts.

In the one Hamilton case that is mentioned in the article, the reporter fails to mention that Hamilton had previously determined that hill was dangerous for tobogganing and erected a fence. The fence was torn down and the City did nothing to put the fence back up. The evidence from the case was that the City knew that the hill was being used for tobogganing and did nothing to stop the activity. And the most important fact that is missing is that the City of Hamilton was ultimately found liable because there was a ditch on the hill that was dangerous to people tobogganing. The injured plaintiff was tobogganing down the hill, hit the ditch and was seriously injured. The City was aware of the ditch on the hill and that the ditch was hazardous and did nothing to fix the danger.

I agree that if someone chooses to toboggan down a hill and falls off and gets injured, unless the fall or injury was caused by a foreseeable hazard on the hill, the injured person should not sue the municipality. But if the municipality is aware that people are tobogganing down a particular hill and that the hill has hazards that pose a danger to those tobogganing, the municipality should take reasonable steps to remove those hazards. This is common sense.

The National Post article also highlights the fact that Hamilton had to pay out $900,000 to the injured plaintiff. What was not included in the article is the fact that the plaintiff had earlier agreed to settle the claim for a total of $425,000—the City rejected that offer to settle.

I urge the media to accurately report cases and include all of the facts. The misinformation from the media leads to the unfair public perception that lawsuits are out of control. Nothing could be further from the truth. If anything, the pendulum in Canada has swung to the side of the defence and injured plaintiffs are not receiving fair compensation for injuries caused by the negligence of others.

Kristian Bonn, Personal Injury Lawyer

Bonn Law Office, Trenton/Belleville, ON