Canada: Personal Injury And Death At Government Attractions

Last Updated: December 15 2017
Article by Michael J. Henry

The old saying "you can't fight City Hall," is badly in need of a rewrite. A familiar refrain for people frustrated by layers of bureaucracy. It also used to be true of launching a lawsuit against provincial or municipal governments, even if they were responsible for negligence causing harm.

Fortunately, Canadian provinces have enacted legislation allowing victims to sue for damages when a government – in the act of providing a service – is partially or wholly liable for a personal injury.

In this blog post, I explore the liability of governments in terms of operating public attractions, such as provincial or municipal parks and publicly owned and operated campgrounds. If a person sustains an injury on this type of property due to the negligence of the operator, they most certainly can "fight City Hall" and potentially win damages for their pain and suffering.

Government Services and the Duty of Care

In the past, governments were virtually immune from tort liability. Over time this immunity was chipped away, until most provinces developed and enacted uniform Crown Liability legislation. Liability applies if a tort is committed by any of its officers or agents, in respect of any breach of a duty owed by the servant and agent as an employer, for any breach of duty attached to ownership, occupation, possession, or control of property, and if there is a breach of a statute, regulation, or bylaw.

While Policy decisions are still immune from liability, a public authority generally owes a duty of care when engaging in operational activities unless it is explicitly exempted by a statutory provision.

Government Attractions

In Ontario, the Occupier's Liability Act mandates that occupiers of private property are responsible for a general duty of care for entrants accessing their property. The test of "reasonableness" is used to determine whether that duty of care has been breached by the occupier's negligence.

Specific statutes govern what level of government – or ministry/department – bares responsibility for a property's operational maintenance. For example, Ontario's Ministry of Natural Resources and Forestry is responsible for operating and maintaining Provincial Parks and provincially owned campgrounds under the Provincial Parks and Conservation Reserves Act.

This legislation outlines the Ministry's duty to meet certain operating standards in terms of cleanliness and sanitation, security and enforcement. If a person visiting one of these parks or campgrounds sustains a personal injury, a court may find the Ministry negligent based on its breach of a statutory responsibility if damage from the breach was foreseeable.

Knowing the Risks and Contributory Negligence

When personal injuries occur at public parks, provincial parks, or public campgrounds, one of the factors courts will consider is whether there was an obvious risk involved in what the injured party was doing on the property. Partaking in an activity on public property that carries a degree of risk does not necessarily absolve the government from negligence, or breach its duty of care.

For example, a municipality has been found liable for a cyclist's injuries when he fell off a teeter-totter-type obstacle at the municipality's mountain bike park. Despite posting warning signs advising cyclists "to ride within their ability and at their own risk" and publishing "a promotional brochure for the Park [that] contained a warning that mountain biking can be risky," the Court found the municipality had breached its duty of care in several ways, including "its failure to adequately monitor risks and injuries at the Park."

The ruling pointed to two subsections of the Occupier's Liability Act. The occupier of a premises has a duty "to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises." This duty of care "applies whether the danger is caused by the condition of the premises, or by an activity carried on the premises."

Engaging in activities that carry some risk of injury or death – especially if the injured person acted in a way in which their own negligence contributed to their injuries – may be factored into a judgment against an occupier to lower damages. It is important for people to always take reasonable precautions for their own safety and well-being while on government property. Nevertheless, the occupier of a premises ultimately carries a responsibility for maintaining it in such a way that entrants can expect a generally safe and secure environment.

Minimizing Risks

Governments and departments responsible for public attractions and spaces should have risk management strategies in place and conduct regular safety audits and operational reviews to ensure that they are not putting members of the public at undue risk. They should keep detailed records of these checks.

Unfortunately, serious personal injuries, including deaths, do occur on these premises. While you can definitely 'fight City Hall,' it's important to remember that some complicated legal rules may be in play. There are also some short notice periods and prerequisites in play to filing a claim and suing, so consulting an experienced personal injury lawyer at a reputable firm as soon as possible is imperative.

Enjoying public parks, campgrounds, or other public attractions should never come at the expense of your, or someone else's health or safety. Always plan to take care of yourself and minors when in the great outdoors, but know that the law can be on your side if the negligence of government managers or operators causes you harm.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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