Hamilton's image as a winter killjoy when it comes to tobogganing has more legal bark than bylaw bite.
The ban on tobogganing city-wide, which puts a $105 fine on the winter activity but can go as high as $5,000 according to city signs, has made headlines for still being in effect despite no person ever being fined sledding, and an online petition to change the bylaw.
While that is in the works, so too is a report to council by the city's risk management services on their options for tobogganing in the city, including finding a way to allow it at some locations.
"It's not so much the activity so much the legal environment we're in," said John McLennan, Hamilton manager of risk management services. "There are plans to present council with options."
'Those of us of a certain age grew up hitting the hills every winter without a thought as to liability and risk exposure.' - John McLennan, Hamilton manager of risk management services
Hamilton artist Laura Cole, 25, spotted a "No Tobogganing" sign at her local hill several years ago. This year she's decided to try and fight the bylaw, hoping the bylaw will be viewed as an activity Hamiltonians can do at their own risk. The petition has 1,300 signatures so far.
Cole said any injury is part of the inherent risk of the sport. She said if you break a leg skiing at a resort, "It's your fault. You accept that risk, and you know, it happens. I think we should all accept that risk if we so choose."
Cole, who regularly toboggans through the winter with friends, said tobogganing is part of a Canadian winter. She added by making tobogganing illegal, it forces parents into a tough spot — either teaching their kids to play and stay active, or obey by the law.
McLennan said he expects to present council with options that include designating some specific hills, actively enforcing the bylaw with additional bylaw officers, erecting fences around known sledding hills, or keeping the status quo. He added council would have to make the ultimate decision.
Hamilton's reputation as a winter wet blanket may be a bit unfounded, if you ask the city, which has had the bylaw in place since 2001 and isn't the only city to do so. Other cities across North America which have also banned the activity. They includes Toronto, which in 2011 employed a police officer to patrol a popular hill when sledders refused to obey the bylaw, according to the Toronto Star.
In Sudbury, the city has placed fencing across a popular hill to prevent the activity, responding to a spinal cord injury from the previous year.
Only driving, snowmobiling and parachuting more dangerous, says city
The City of Hamilton says its bylaw is more for public safety and to prevent an legal issues that could arise. A 2008 Ontario study by Dr. Charles Tator, a well-known concussion brain injury expert, found the activity ranks among one of the most deadly recreational activities, in terms of fatalities per population.
'I think we should all accept that risk if we so choose.' - Laura Cole
"It ranks only behind diving, snowmobiling, and parachuting in terms personal risk," added McLennan, in letter to a public inquiry about the bylaw at the beginning of December 2014.
"The legal environment, particularly for municipalities, has changed considerably in recent years. Injured parties are now much more inclined to sue for damages, and, in turn, the courts have placed a very high degree of responsibility on property owners to protect users, even in situations where they have not been invited onto the property and/or when they are not exercising reasonable caution," writes McLennan. "As a result, municipalities are now faced with the prospect incurring large damage awards against them along with a corresponding dramatic rise in insurance premiums if the risk is not properly addressed."
Asked if the "play at your own risk" sign would be a viable option, rather than a bylaw against tobogganing, McLennan said it would not protect the city from a legal perspective.
"In terms of protecting the city from liability, that's not the case," McLennan said.
Hamilton lawyer sued and won $900K after sledding accident
In 2004, Hamilton lawyer Bruno Uggenti suffered a spinal injury after hitting a draining ditched concealed by the snow. A "No Tobogganing" sign had been placed at the hill and the city also said Uggenti had broken his shoulder in a previous tobogganing accident.
Still, Uggenti, who is in his late forties, was awarded an $900,000 settlement in 2013.
"I do understand that (Uggenti) was hurt and I feel for him," said Cole. "But people are hurt everyday doing simple little things... I don't think it was right for him to sue the city in a sense… He accepted that risk when he got on the toboggan."
McLennan says the courts found the city could have done a better job at enforcing their bylaw. Since then, the city has increased the amount of signage to make sure anyone heading towards the hill knew they were doing an illegal activity. McLennan said Uggenti testified he was unaware of any bylaw against tobogganing in his court case.
City spokesperson Ann Lamanes said if the city was called to respond to tobogganers, they would "educated before taking a hard line with enforcement."
Even in McLennan's letter about why the city maintains the 2001 bylaw, he finds some empathy for Hamilton's up and coming tobogganing generation.
"Those of us of a certain age grew up hitting the hills every winter without a thought as to liability and risk exposure," McLennan writes. "There was a general prevailing willingness of assumption of risk among participants and, in fact, most of us sought out the steepest, fastest hills – the scarier the better. If we were injured we shrugged it off as a recreational hazard, healed, and then got back on the tobogganing as soon as we were better. In all but the most unusual of circumstances there were no lawsuits alleging negligence on the part of the property owner."