Treading carefully on tobogganing

Thespec.com
Jan. 8, 2015
By Howard Elliot

It's easy to criticize Hamilton city hall for its ongoing efforts to limit sledding and tobogganing on public property. But is it fair criticism?

First, some context. In typical fashion, Hamilton bashers are quick to jump to the conclusion that this is somehow a unique local character flaw. It is not. Hundreds of towns and cities across the United States have either partially or entirely banned the winter pastime for the same reason - concerns over public liability. In Ontario, Orangeville and Vaughan are acting, and Ottawa and Toronto have limited where sledding is legal. Like it or not, it's a trend.

And it's not about whether or not tobogganing/sledding is dangerous. It can be. So can just about any other outdoor activity. No one is talking about banning biking. This is about liability. Hamilton lost a case to the tune of nearly $1 million because a hidden culvert wasn't properly marked and a sledder was injured and sued. And that was when the local ban had already been in place for years.

To the critics so loudly assailing Hamilton councillors and staff, we ask this simple question: What would you have city hall do? Lift the ban, knowing that doing so could mitigate in favour of anyone suing the city for damages after sustaining injuries sledding on public property? Have all tobogganers sign waivers? In terms of liability they're typically useless and, in any case, how would one ensure all participants sign a waiver? Bylaw officers checking at local hills?

Here's the simple truth: Done safely, tobogganing and sledding are relatively safe. And most people, being reasonable, aren't likely to sue if all parties have acted in good faith. But the sport can be dangerous if done recklessly or in unsafe places. Can those critics guarantee the city won't face litigation? Can they guarantee there won't be another million-dollar award?

Recognizing that public sentiment seems to support some softening of the ban, city staff is investigating designating a couple of local hills as officially sanctioned. That wouldn't remove the liability risk, but it might mitigate it if hills have adequate supervision, signage and monitoring. Keep in mind those things aren't free, and would have to be paid for by taxpayers, some of whom are bound to complain that they don't want their tax dollars going toward supervising other people's kids' recreation.

Canadians did not invent creeping litigiousness, where just about any mishap on public property can lead to a lawsuit. Like so many things, that legal trend was imported from the United States.

Hamilton city staff and council are not being Grinchlike about their liability concerns. If they were cavalier about them, many of the same critics would be calling for their heads on pikes. They're simply being careful, which is appropriate.