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.
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
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
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
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
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