In Pierce v. Hamilton (City), 2013 ONSC 6485, the Court dismissed a claim against a municipality arising from an accident which took place off of a recreational trail.
On October 1, 2005, shortly after midnight, the 17 year old plaintiff went with a group of friends to Scenic Drive Park (the "park"), adjacent to the Niagara Escarpment. The group followed a trail to a lookout point. On the way back to their car, the plaintiff went off on his own on a dirt path through the woods. Unfortunately, the dirt path ended abruptly at a ravine. He stepped forward and fell to the bottom of the ravine, seriously injuring his left femur and wrist.
LAW
The plaintiff commenced an action against the City of Hamilton. The City admitted that it was an occupier pursuant to the Occupiers' Liability Act (the "Act"). Section 3 of the Act requires occupiers to take reasonable steps to see that persons entering a premises are reasonably safe. In some cases, where a plaintiff has willingly assumed all risks associated with entering a premises, the less onerous duty in section 4(1) would apply, requiring an occupier not to create a danger with the deliberate intent of doing harm and not to act with reckless disregard for the person's presence. In this case, the Court held that this less onerous duty applied.
The duty in section 4(1) of the Act applies where plaintiffs enter a premises for a recreational activity, where no fee is paid for entry, and where the premises falls into one of the categories identified in section 4(4) of the Act, which include a "rural premises" that is "vacant or undeveloped" or a "forested or wilderness premises," as well as a "recreational trail reasonably marked by notice as such."
The Court found that the plaintiff's accident did not occur on a premises which fell into one of these specific categories. The park was not considered a "rural premises" as it was located in a largely urban area, very close to houses and a major urban roadway. Although the two trails in the park both constituted "recreational trails reasonably marked by notice as such," the plaintiff did not actually fall on either of them. He fell while on a dirt path which was not marked in any way.
Nevertheless, the Court held that the less onerous duty in section 4(1) still applied: because the plaintiff had gone to the park for recreational purposes, had not paid an entrance fee, and left a recreational trail "but remain[ed] on the property while continuously engaged in a recreational activity". If an owner is given the benefit of the lower standard of care in return for allowing the public to enjoy a recreational trail, "it makes no sense to saddle the owner with the higher standard of care the moment a hiker or cyclist or skier moves off of the recreational trail."
The Court dismissed the plaintiff's claim, holding that the City had not created a danger with the deliberate intent to do harm, and the City had not acted with reckless disregard for the plaintiff's presence. The City had received no calls or reports of incidents in the area, and was not aware of any unusual danger on the dirt path before the date of the accident. The Court approved of the City's practice of responding to complaints or calls about the area, recognizing that it would be impossible for the City to conduct regular inspections of the approximately 3,000 acres of parkland left in a natural state. The Court also rejected the plaintiff's argument that the City ought to have put up warning signs or barricades. The danger of a sharp drop in elevation near the edge of an escarpment should have been obvious to anyone entering the woods. In addition, the Court found that City took active measures to ensure the safety of the public by building and maintaining two well-marked trails in the park from which members of the public could enjoy the area.
SIGNIFICANCE OF THIS DECISION
This case highlights the fact that, in some limited circumstances, municipalities can rely upon the less onerous duty set out in section 4(1) of the Act. Where a plaintiff has entered a premises for a recreational purpose, and there is no fee for entrance, the Court may extend the benefit of the less onerous duty to those circumstances where a plaintiff moves off a recreational trail, but continues to be engaged in the recreational activity.
This case is also helpful for municipalities in that it recognizes the difficulty of implementing a system of regular inspection in those areas of parks which are left in a natural state.
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