An action was commenced against a municipality under the
Occupiers' Liability Act for injuries and damages sustained
after a teenager fell from a tree located in a municipal park. The
court in Eric Winters v. Corporation of Haldimand County (2013 ONSC
4096 (CanLII)) dismissed the action, but left the door open for a
municipality to be found liable in certain circumstances.
On September 28, 2011 the plaintiff (Eric Winters) fell from a
tree and was rendered paraplegic at the age of 16. Although the
plaintiff was a teenage boy at the time of the accident, he was not
considered a "risk-taker". The tree was a swamp willow
located at the rear of a municipal park. It had multiple large
limbs growing at or near its base. The tree was known by Eric and
some of his friends as "the Chilling Tree" and had been
used for many years by teenagers to congregate, climb, or sit on.
The municipal park was described as being "passive." It
had trees, a lawn, some picnic tables, and an unusable skateboard
pad. The municipality would maintain the trees, trimming them so
they would not block walkways and removing deadwood which would be
dangerous. Prior to the plaintiff's accident, there had been no
complaints about the tree.
As a result of the accident an action was commenced against the
municipality as the occupier of the park. The focus of the
court's liability analysis was on Section 3(1) of the
Occupiers' Liability Act which requires an occupier to take
reasonable care to see that persons entering a premises are
reasonably safe. The alleged breaches of the municipality's
duties under Act were as follows:
1. the municipality failed to have in place a reasonable system
to inspect and monitor the use of the municipal park by
2. the municipality failed to trim the "Chilling Tree"
to prevent it from being easily climbed and used as a sitting perch
3. the municipality failed to remove the "Chilling
Tree" entirely; and/or
4. the municipality failed to implement and enforce rules
against climbing trees in the municipal park.
The court considered that the municipality's practice of
being at the park on at least a weekly basis during business hours
constituted reasonable monitoring of the park; particularly as
there were no prior complaints about the "Chilling Tree"
and no municipal witness had ever previously seen anyone climbing
the tree. Further, although the "Chilling Tree" was
attractive to climb with a large horizontal limb eight feet above
the ground, the court held that it was no more unreasonable for the
municipality to leave the tree as it was than it was to leave any
other horizontal surface from which someone could fall. As such, it
would not be reasonable to require the municipality to trim the
"Chilling Tree" or remove it entirely. Finally, in
dismissing the plaintiffs' action, the court noted that a
municipality does not have limitless resources, and it ought not to
be obliged to forbid all activities which, with hindsight, might
prove to be dangerous.
The court's analysis also focused on the issue of
foreseeability, and seemed to leave the door open for a finding of
liability if the circumstances were different; for instance, if the
municipality had prior notice of a tree being attractive to
climbers or that a particular tree enticed risk-taking behaviour.
In doing so the court endorsed the principle enunciated in the
prior case of Ricard v. Trenton (City),  O.J. No. 4700. In
Ricard v. Trenton (City), while dismissing a claim brought against
a municipality in respect of the death of a child who had been
tree-climbing, the court commented:
"It may well be that, on occasion, certain trees by their
nature, or by their locations, become a haven for tree climbers.
And, should that occur, it might well be that a duty to do
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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