The Court of Appeal recently considered a municipality's
exposure to liability for accidents involving trees in parks. On
September 28, 2011 the plaintiff Eric Winters fell from a tree and
was tragically rendered paraplegic at the age of 16. The tree was a
swamp willow located in a municipal park in Cayuga, Ontario. This
type of tree typically grows along river banks all over Ontario. It
had multiple large limbs growing at or near its base. The tree was
known by the plaintiff 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 plaintiff commenced an action against the municipality
alleging that it failed to meet its obligations under section 3(1)
of the Occupiers' Liability Act which requires an occupier to
take reasonable care to see that persons entering a premises are
At trial the court held that the municipality met its
obligations under the Occupiers Liability Act. The court found that
the municipality's practice of being at the park at least
weekly during business hours constituted reasonable monitoring of
the park, particularly as there were no prior complaints about the
tree and no municipal witness had ever previously seen anyone
climbing it. Further, although the 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 tree or remove
it entirely. Finally, in dismissing the action, the court noted
that municipalities do not have limitless resources and should not
be obliged to forbid all activities which, with hindsight, might
prove to be dangerous.
The Court of Appeal upheld the trial court's decision. The
Court of Appeal agreed with the trial judge's conclusion that
the monitoring of the park was reasonable in all of the
circumstances, and particularly so in the absence of any expert
evidence to the effect that the municipality fell below the
standard of care to be expected of a town similar to Cayuga. The
Court of Appeal went on to state: "Any danger posed by this
tree was an obvious one. If you chose to climb it you could fall
and be injured. There is neither duty to warn of such an obvious
and self-evident danger nor any duty to monitor beyond what the
Township [was] doing at the time of this most unfortunate
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
The recent Preliminary Issue decision in Walsh and Echelon (FSCO A15-007448, August 31, 2016) confirms that an economic loss does not need to be demonstrated in order to be entitled to attendant care benefits.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form...
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