Toronto is starting to get its first substantial snowfall this winter, and long-time residents know what that means: the city is once again reminding us where it is and is not permitted to ride a toboggan, sled, or other mode of conveyance down a snow-covered hill. This season, the city says 45 hills are closed for various safety reasons, mostly having to do with obstructions that kids could hit at speed. Just as predictably, this has set off a series of lamentations about Toronto’s notorious killjoy bureaucracy stifling one of the most iconic ways for kids to enjoy winter in this northern country.
Far be it for me to come to the defence of the city’s parks bureaucracy — whose staff seem to actively hate and fear the idea of making Toronto’s parks enjoyable, pleasant places to be — but this is one time when it’s not just Toronto being Toronto. And we know that because this happens all over the province and, indeed, across North America.
Last year, for example, Oshawa considered prohibiting sledding in all but two parks, although council did opt for a more modest set of prohibitions. In 2022, Uxbridge sanctioned sledding at one of the city’s hills. In 2015, Orangeville residents protested a city-installed “no tobogganing” sign at a beloved local hill.
More tragically, you’ve got cases such as the one in Ottawa, which closed a toboggan hill at Mooney’s Bay in 2022 after an 11-year-old girl was killed.
All of these examples have one thing in common aside from snow: municipalities are responding to the demands of their insurers and the current state of Ontario’s personal-injury law. As tragic as the death of a child is, it’s not actually the worst-case scenario from a municipality’s perspective. The nightmare is actually a young person suffering life-changing, severe injuries that require years or potentially decades of expensive medical care. If that sounds macabre, that’s because it is — but it’s also a reality that municipalities around the province deal with.
All of this is a frequently blamed on Ontario’s standard of “joint and several liability,” a long-standing rule that says that, when someone is injured by more than one party, they can pursue damages against all of their antagonists collectively to recoup their damages — notwithstanding how much responsibility a court might apportion to each party or whether a court finds that the injured person contributed to their own fate.
What this means in practice is that, if someone is owed $1 million in damages, a court might order a municipality to pay for most or all of those damages even if it was only partly responsible — in that, say, it hadn’t been enforcing rules around sledding aggressively enough. In reality, the costs would be paid by the municipality’s insurer, but they would be reflected in higher insurance rates.
The Association of Municipalities of Ontario has lobbied the province for decades to change liability rules to limit the growth in insurance costs, so far without success. When the Tories won in 2018, they pledged to change the law; the issue was mentioned in the mandate letter given to Caroline Mulroney when she was appointed as attorney general. But, like the Liberals before them, the Tories found that actually changing liability law is a tall order.
Last year, Mulroney’s successor, Doug Downey, all but announced the death of substantial legislative changes, telling municipalities that the government would look at other ways to moderate the rising costs of liability insurance. In part, the attorney general said (as many of his predecessors, including Liberals before 2018, also have) that the government didn’t see clear evidence that joint and several liability was uniquely responsible for high insurance costs and wasn’t convinced that reforming liability rules would necessarily translate into lower insurance costs. The Law Commission of Ontario was similarly skeptical about changes to liability law when it looked at the issue in 2011.
It's one thing to rail against killjoy cities and towns or even greedy trial lawyers, but determining who should have to bear the cost of damages when a court has determined someone has been harmed by negligence is a thornier issue. At the moment, Ontario law says that the ultimate priority is making sure an injured party is made whole, even if that means people might strategically target deep-pocketed defendants, like municipalities. There are lots of possible changes to liability law, but many of them would leave injured people worse off than they are today.
Cities aren’t wrong to complain that they’re being set up to fail here, as in so many other cases. Councils have to face residents irritated by the appearance of a nanny state even as they deal with eye-watering increases in the cost of liability insurance. But unless we’re comfortable with the idea of some people facing serious injuries without being able to recoup the full damages they’re entitled to — and, clearly, the Ford government isn’t comfortable with that at all — we should probably expect to see more “no tobogganing” signs in the future.
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