Hamiltonians protest tobogganing ban with sled-in

There was one party noticeably absent from a sledding protest against the City of Hamilton's tobogganing ban city bylaw officers.

Sledders and sliders draped the hills in the shadow of the escarpment at Chedoke, as well as on the mountain,which was the site of a toboggan crash more than a decade ago that eventually forced the city to pay out $900,000 in damages for an injured lawyer.

• Hamilton's tobogganing bylaw in place for legal protection, no fines handed out

• Great Canadian Tobogganing Map allows you to mark your spot

But while bylaw officers were nowhere in sight, that doesn't mean the city still isn't at risk for another potential lawsuit.

The City of Hamilton did not immediate return phone calls to confirm if bylaw officers were aware of the protest. They have previously said that no tickets have ever been handed out for tobogganing in city parks.

What do you want our kids to do, just sit inside for the winter?- Carlos Pinho

Hamilton personal injury lawyer Michael Winward, a partner at Mackesy Smye, said despite the signs that the city has up and local knowledge that activity is banned, by not enforcing the bylaw, the city may still be held liable if someone got hurt and then sued.

"Having a bylaw that may prohibit an activity on city property doesn't absolve the city of liability if someone gets hurt," said Winward. "I have a hard time seeing that as a valid defence."

Carlos Pinho was at Chedoke Saturday to take his four-year-old Janina out for her first time tobogganing. He asked why Hamilton couldn't follow other cities who have dedicated hills for the sport.

"We want at least some hills. We don't want to take away tobogganing completely from the city," Pinho said. "If Calgary can do [18] locations, why can't we get two to four?"

Hamilton's risk management services previously told the CBC they were working on developing options for council, one of which would be dedicating hills for tobogganing.

Calgary looking to build on 18 locations

In Calgary, the city's "outdoor winter play" initiative is looking to find more hills for tobogganers, to increase from the 18 sites they have so far.

Winward said to protect the city from someone suing, they would have to satisfy Ontario's Occupiers' Liability Act and provide "reasonable steps" to make sure it was "reasonably safe."

In 2004, Hamilton lawyer Bruno Uggenti suffered a spinal injury after hitting a draining ditch 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.

Uggenti, who is in his late 40s, was awarded a $900,000 settlement in 2013.

Winward said the case was more than just not seeing the sign. He said the act doesn't force the city to "bubble wrap" play and completely ensure their safety.

"You just have to take reasonable steps," Winward said.

The hidden danger of the drainage ditch separated that incident from other tobogganing accidents.

Back at Chedoke, Pinho said he wouldn't sue the city if he was hurt sledding.

"No, no. It's a risk you have to take when going tobogganing or do any kind of sports," Pinho said. "What do you want our kids to do, just sit inside for the winter?"