Lawsuits against municipalities for trip and falls resulting from sidewalk deficiencies are hardly a novelty. However, despite the growing number of cases relating to such trip and falls, there is still no cemented (pun intended) definition of the term “sidewalk”, and a concrete (yet another appropriate pun) determination of the physical boundaries of a sidewalk has still not emerged. Despite the lack of clarity in this regard, legislatures and Courts alike have agreed that municipalities have a positive duty to inspect and maintain sidewalks…whatever those may be. Although it is widely accepted that municipalities ought not to be treated as insurers for all the perils faced by the travelling public, the early caselaw has generally been decided in favour of the travelling public rather than the municipalities.
Recently, there has been a shift in the way that Canadian courts have been adjudicating these types of cases. The Courts have begun to generate common law that has made it more difficult for plaintiffs to successfully litigate their sidewalk-related claims. Canadian courts have become more diligent about limiting the liability of municipalities, reaffirming and enforcing the principle that municipalities are not insurers. This paper will discuss the historical consideration of sidewalks by the Court, the evolution of a municipality’s statutory duty to maintain its sidewalks, the role of adjacent property owners in sidewalk related personal injury claims, as well as emerging case law concerning ubiquitous portions of the road allowance.
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