Barbeau v. Kitchener 2017 ONSC 24

Written on January 9, 2017.

A recent trial decision involving a trip and fall on a sidewalk surface discontinuity provides a good example of the right and wrong ways to measure a “tripper”. Although arguably misapplying, (fortunately in obiter), s.16.1 of the MMS and the “2 cm rule”, the Honourable Justice Broad did state that:   “The discontinuity between the two sidewalk slabs, ranging from 11 mm to 19 mm, and being 16 mm in the location where the evidence indicated Ms. Barbeau’s toe came in contact with the upper slab, was within the maximum provided for by the Provincial Minimum Maintenance Standards, which I find to be reflective of a reasonable standard in the context of a “small residential street.” I make no comment on whether it would be considered reasonable in other contexts.”   The foregoing comment, while perhaps helpful in some future cases, should be approached with caution, as s.16.1 of the MMS clearly applies to all sidewalks, and is a complete defence to any alleged sidewalk surface discontinuity, on any sidewalk in a municipality in Ontario. There is no limiting language in the regulation that says the 2 cm standard is only for quieter residential sidewalks. The Legislation Act demands that a broad and purposeful reading be applied to the regulation, which is a statutory defence under s.44(3)(c) of the Municipal Act, 2001. l