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Off Piste -Your Risk
Published in the September 2009 issue of Litigation Notes - View Article
The Ontario Court of Appeal has reversed a trial judge who found the owners of a conservation area liable for injuries suffered by a cross-country skier.
One day in January of 2005 the plaintiff Jo-Anne Schneider was cross-country skiing with her husband and three sons in Coldstream Park. Coldstream Park is part of the Coldstream Conservation Area and is located near London, Ontario.
The Park is situated in an area that “…is not urban and there is no residential or commercial development within the borders of the Park. The Park includes a trail system marked by signs and maps. Part of the trail system is a wooden boardwalk… It is maintained by the Township and, during the summer months, the public makes use of its pavilion, picnic grounds, playground area, designated walking trails, soccer fields, and toilet facilities. Recreational programs such as camping and a children’s summer program are also offered by a group of local residents who use the Park for these purposes. From May to October the Township facilitates these recreational uses by cutting the grass, laying out the soccer pitches, removing the garbage and maintaining the washroom facilities… During the winter months the Park is used by local residents for other recreational activities including hiking, tobogganing, skating, hockey and cross- country skiing. The Township does not perform any maintenance activities in the Park from November to April and the toilet facilities are closed. During these months, none of the trails are groomed for skiing and the ice surface on the lake is not maintained”
On the day in question Ms. Schneider and her family were skiing on the wooden boardwalk when they came to the base of a berm. Ms. Schneider left the trail and followed ski marks to the top of the berm. She told her sons to wait while she skied down the berm to the frozen surface of a lake which lay beyond. In doing so she struck a concrete wall buried beneath the snow, sustaining a compound fracture of three bones in her right ankle. She was unable to walk or stand for very long and could not return to work until mid-October of 2005.
Ms. Schneider sued the St. Clair Region Conservation Authority and the Corporation of the Township of Middlesex Centre, alleging that they had breached their duties under Ontario’s Occupiers Liability Act ( the “Act”). The Act stipulates, in Section 3, that the occupier of premises “…owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises”.
The Act goes on to provide, in Section 4(1), that the duty of care referred to above does not apply in respect of risks willingly assumed by a person who enter on the premises. In the case of a risk willingly assumed the occupier’s duty is a lesser one, namely “…to not create a danger with a deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property”.
The Act goes on, in Section 4(4), to identify certain types of premises and stipulates that any person who enters on those premises is deemed to have willingly assumed the risks of entry and is subject to the lesser duty of care referred to in Section 4(1). One of the listed premises is “recreational trails reasonably marked by notice as such”.
The trial judge found the Defendants liable on the basis that they owed the higher duty of care referred to in Section 3 of the Act. This was because Coldstream Park did not, in his opinion, fall within any of the categories of property delineated in Section 4 (4), including a recreational trail. In his opinion, the Park was “much more than a recreational trail”. Although it did contain marked recreational trails, the concrete wall with which Ms. Schneider collided was not situated on one of those trails.
He went on to find that even if he was wrong, and the Park did fall within one of the categories in Section 4 (4), the Appellants had nevertheless “displayed a reckless disregard for the safety of the users of the Park” by not marking the concrete wall with “some kind of signage”.
The matter was appealed to the Ontario Court of Appeal, which reversed the trial judge’s finding. The Court reviewed the history of the Occupiers Liability Act, stating that prior to its introduction, at common law, “persons entering an occupier’s premises were traditionally defined as invitees, licensees or trespassers and the duty of care owed by the occupier to such persons was determined on this basis”.
The Act was introduced in 1980 and the goals of the Act were described as being “to promote, and indeed require, where circumstances warrant, positive action on the part of the occupiers to make their premises reasonably safe”. In addition, the Appellants argued and the Court of Appeal agreed, Section 4 of the Act was “…intended to encourage occupiers to make their lands available to the public for recreational use”. The common law approach discouraged benevolence by imposing a greater duty of care to persons permitted to use land than to trespassers.
The Court of Appeal concluded that the trial judge was wrong to have concluded that Section 4(4) did not apply in this case, on the basis that the plaintiff had left the recreational trail at the time of the accident. Since the purpose of the Act is to encourage land owners to allow recreational use of marked trails on their lands by imposing on them a lesser duty of care, it would not make sense “…to limit this lesser duty of care to users when they remain on the marked trail, only to impose a greater duty of care when they venture off the trail. As the occupier has no effective way of policing the use of these trails, this would, in effect, impose a duty on the occupier to make the off-trail portions of his or her property safer than the trail itself. This would defeat the purpose of the Act”.
The Court of Appeal also found that the trial judge erred in finding that the Appellants acted with reckless disregard for the safety of the users of the Park. “There is no suggestion in the record that the appellant had specific knowledge that the concrete wall, depending on the snow conditions, would be hidden from view of cross-country skiers and thus pose a risk of injury to a skier choosing to leave the trail. The concrete wall had been in place for more than a decade, apparently without incident or suggestion that, in winter, it constituted a hazard or trap to users of the Park…In order to constitute recklessness, the Court must find that the occupier knew or should have known that injury was likely. That finding was not made in this case”.
Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 (CanLII)