Canada: Occupiers' Liability Act, Assumption Of Risk And Rebuttable Presumptions – What The Divisional Court Has To Say

The Divisional Court, in Cotnam v The National Capital Commission, ([2014] ONSC 3614), considered the applicability of the rebuttable presumption contained in section 4 of the Occupiers' Liability Act.

The Plaintiff commenced a proceeding against the National Capital Commission ("NCC") with respect to injuries that he suffered while bicycling on a recreational bicycle pathway in the City of Ottawa.  The Plaintiff claimed that he fell while negotiating a curve on a pathway, resulting in injury to himself and damage to his bicycle.  The Plaintiff claimed that the signage on the pathway was improper and thereby constituted a danger.

The relevant sections of the Occupiers' Liability Act provide:

4.  (1)  The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the 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.
...
(3)  A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1)...

(c) where the entry is for the purpose of a recreational activity and, 

(i) no fee is paid for the entry or activity of the person ... and
(ii) the person is not being provided with living accommodation ...

(4)  The premises referred to in subsection (3) are ...

(f) recreational trails reasonably marked by notice as such. 

The NCC brought a motion for summary judgment. The motions Judge dismissed the motion finding that Section 4 of the Occupiers' Liability Act did not apply to the events giving rise to the action.  Even if it did, there was a rebuttable presumption that the Plaintiff could advance to displace the lower standard of liability that the section imposed on the NCC.  The motions Judge had not been persuaded that this was an appropriate summary judgment case.  

On appeal, there was no dispute that the pathway was a "recreational trail" as set out by section 4(4)(f) of the Occupiers' Liability Act.  The issue was whether the Plaintiff's claim was barred because he had voluntarily assumed the risk by using the trail

The Divisional Court noted that this decision appeared in conflict with the Court of Appeal's decision in Schneider v St Clair Region Conservation Authority, ([2009] ONCA 640).  In that case, the Court held that section 4(1) and 4(3):

Work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity, and without payment of any fee is deemed to have willingly assumed the risks associated with the activity. 

This meant that an occupier of the lands could not be held responsible unless there was proof that the occupier engaged in "reckless disregard" of the person on the premises.

The Divisional Court held that the motions Judge's decision was at odds with the analysis of section 4(4) by the Court of Appeal in Schneider.  There, the Court of Appeal found that the purpose of section 4 was to reduce the duty of care owed by occupiers of recreational lands.  The Divisional Court agreed with the NCC that if the motions Judge's decision was allowed to stand, the purpose of section 4 could be undermined.

The Divisional Court found that the motions Judge did not undertake any analysis of the purpose of section 4 within the context of the entirety of the Occupiers' Liability Act before dismissing the motion.  In doing so, the motions Judge failed to determine the true issue at hand - whether the Defendant had displayed a reckless disregard that caused the Plaintiff's injury.  This is the standard test when Section 4 of the Occupiers' Liability Act is properly applied.

The Divisional Court noted that acting in reckless disregard meant "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury results".  The Divisional Court noted that the Plaintiff had tendered no evidence to suggest that this occurred.

The Divisional Court found that there was no evidence that there had been a reckless disregard by the NCC.  Accordingly, the appeal was allowed and a Judgment was issued to dismiss the within action against the NCC.

This case confirms the growing trend of summary judgment motions where the Plaintiff has added a Defendant despite a lack of evidence that a party is liable pursuant to the Occupiers' Liability Act. The Courts have signalled a willingness to dismiss such cases unless the Plaintiff is able to establish some apparent responsibility on the part of the Defendant. Defendants should consider the use of a summary judgment motion where they have been added to an action for the sole reason that they are an "occupier" but bear no responsibility for the accident.

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