Under section 3 of the Occupier’s Liability Act, the default standard of care of an occupier is “to take such care as in all the circumstances is reasonable to see that persons entering the premises is reasonably safe while on the premises”. This standard applies in most situations but there are some premises in which a much lower standard of care applies under section 4.
Section 4 (1) states that for “risks willingly assumed by the person who enters the premises” the occupier owes a duty to the person to “not create a danger with 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.”
Section 4 (4) of the OLA provides a number of premises in which the lower standard of care applies, including recreational trails that are reasonably marked as such. The Act further states that a person who enters those premises is deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1) where:
a. the entry is for the purpose of a recreational activity and,
b. no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and
c. the person is not being provided with living accommodation by the occupier
Essentially, what that means is that if a person is walking on a marked recreational trail for a recreational purpose, an occupier will only be liable if they intentionally do harm or act with reckless disregard for the presence of the person. The leading case of Cormack v Mara (Township), 1989 O.J. No. 647 defined ʺreckless disregardʺ as “doing or omitting to do something which one should recognize as likely to cause damage or injury to the individual on their premises, not caring whether such damage or injury results.”
A case that effectively demonstrates this standard of reckless disregard is Matthew Pierce and Robert Pierce v. City of Hamilton. In that case a teenager was walking on a dirt path in a wooded area until it came to an abrupt end, whereupon he fell into a ravine, suffering multiple fractures. The judge found that the path in question was part of a marked recreational trail and that the Plaintiff was using the trail for a recreational purpose. The Trial Judge ultimately found no liability on behalf of the City, stating that its failure to inspect the park did not constitute reckless disregard. The judge also found that, because the City was not aware of the specific dangers associated with the drop-off in the path, it was not required to erect any warning signs either.
While the aforementioned case establishes that section 4 applies a low standard when engaged, it still places requirements on occupiers to ensure their premise is reasonably safe.
In Labanowicz v Fort Erie (Town), for example, the respondent was injured while riding her bicycle on a municipal trail. There were wooden bollards set along the trail which were affixed to the ground by metal brackets. The respondent was injured when her front wheel struck a metal bracket, which happened not to be fitted with a wooden bollard.
The trial judge found that, since the metal bracket was difficult to see based on its positioning and colour, it amounted to reckless disregard to the safety of the persons using the trail.
Another example is Herbert (Litigation Guardian of) v. Brantford (City). In this case, a cyclist was injured after riding off a recreational trail while trying to avoid colliding with another cyclist. The Court found that the City knew there was a risk of collision between cyclists at the location of the accident and that the lack of a recovery zone (an area which gives a cyclist a chance to regain control if they are set off the path) made it a particularly dangerous stretch of path. The City was held 40% responsible for the accident. In coming to its decision, the Court stated:
“Whatever this danger, it is clearly contextual. It may not be obvious. It may be hidden or concealed. It may contain an element of surprise for the user such that response times are diminished, if not eliminated. It may be that the user cannot extricate himself or herself from the situation. It may be of such a nature that, as some jurists have described … it is a “trap”. The failure of the occupier to address a known danger of this magnitude would constitute “reckless disregard.”
If you would like any further information on this issue, or have any questions about your rights if you were injured while using a recreational trail, please contact Daniel Fisher, personal injury lawyer, by phone at 416 644 2080 or email at dfisher@hshlawyers.com or Michael J. Henry, Founding Partner, by phone at 416 361 0889 or email at mjhenry@hshlawyers.com.
