Hypothetical Fact Situation

Instructions

1. Please answer the following questions on the hypothetical fact situation below with reference only to the assigned case.
2. Please assume that the statements of law contained in the assigned case are correct and that any legislation referred to is identical in form and content to the applicable legislation in Ontario.
3. Please answer the questions using the facts set out in the hypothetical, but if you feel that there are facts missing which are necessary for you to express an opinion, please identify what information you feel is missing and explain how the information would affect your answer.
4. Please be organized, structured and clear in your answers.
5. Please consider the relative weight of each question to determine how lengthy your answer should be.
6. Good luck.

Hypothetical Fact Situation:

The town of Omashu is a quaint village located in northern Ontario. Omashu has a population of under two thousand residents. The newly elected Mayor of Omashu is Bumi. Bumi is a retired stone mason who operated one of the largest local employers, Bumi's Earthworks and Masonry.

Before his entry into public life as mayor, Bumi's company built many of the homes in Omashu and much of the municipal infrastructure including the town hall, arena, municipal offices and roads.

The town of Omashu despite its small size, draws residents from nearby rural communities to participate in the minor hockey program run out of the Omashu Arena. The Omashu Arena was home to a local Junior B team, the Omashu Earth Benders that would regularly fill the arena to its capacity of 1,000 for home games.

Because Omashu was located in northern Ontario, clearing snow was a central municipal function during winter months.

The same road crews that cleared the roads of snow also cleared the parking lot for the Omashu Arena.

Bumi noticed that local children would occasionally use the snow piles created by the road crews in the arena parking lot for sledding. Bumi thought this was great, and instructed the municipal road crews to plow all of the snow from the whole parking lot to the easternmost edge of the lot, so local children would have a large snow pile to slide down with their sleds.

Municipal road crew plow operator Saaka took Bumi's instructions to heart and faithfully ensured that the entire lot was plowed to the easternmost edge. Saaka even arranged for additional equipment from the municipal yard to more effectively pile the snow even higher than could be accomplished with just a plow.

After a particularly heavy snow, the snow pile at the arena was well over thirty feet or ten metres tall.

The town did not discourage children from sledding on the snow pile and posted no warning signs.

Typically, children would sled down the eastern most slope of the snow pile which sloped down onto a field adjacent to the arena parking lot. The western most slope of the snow pile which faced back onto the parking lot was much steeper than the eastern most slope.

On February 1, 2022, Toph Beiphong, a twelve year old girl who regularly used the hill for sledding was injured sledding down the steeper western side of the snow hill facing the parking lot. Unfortunately, Toph was unable to control her descent and slammed hard into the pavement of the parking lot breaking both of her legs and her left arm. Toph will be in a cast for twelve weeks and will likely require extensive physiotherapy afterwards.

Toph claims she did not intend to slide down the steep side of the hill towards the parking lot, but that she slipped accidentally while at the top of the hill.

Toph was the star hockey player for the Junior Earthbenders in her age group in the minor hockey system and had already drawn attention from local and national media for her skills. Toph's aspirations of playing Olympic and professional hockey were now seriously in jeopardy.

Two other children from a rival hockey team, Azula and Zuko, both provided witness statements indicating that they heard Toph bragging about being able to sled down the steeper side of the snow pile but neither saw what actually happened resulting in the injuries to Toph.

Toph's parents are outraged and decide to sue the town of Omashu in negligence to recover for the pain and suffering sustained by Toph as well as to recover her medical expenses and loss of future earning potential.

Question 23(5 points)

Assuming that there are no cases where a duty of care has been recognized by the courts for a municipality in relation to snow piles on municipal property, what facts and law would you rely on if you were Toph to argue that a duty of care should exist?

Question 24(5 points)

Also assuming that there are no cases where a duty of care has been recognized by a court in similar circumstances, what facts and law would you rely on if you were representing Omashu to argue that no duty of care should exist?