Canada: Taking A Dip Into Public Pool Liability: Municipal And Resort Related Liability

I. Introduction & Overview

Although warm weather is still a few months away, it will not be long before adults and children alike are looking for ways to cool down. Public swimming pools, whether used for swimming lessons, water sports, or recreational swimming, are both a popular summertime activity and a source of potential liability.

Some public pools are required to have lifeguards on duty while others are not. Where lifeguards are required, what exposure to liability is there when an accident occurs? If a lifeguard is not required, should the owner of the premises still employ one, or are there other ways to mitigate potential claims? One can imagine that these scenarios become even more complicated where alcohol is being consumed.

This article is our latest update in our swimming pool liability series, following our 2013 paper entitled, Caution! This pool is unsupervised! Resort liability of unsupervised facilities,1 and our 2017 paper Swimming in Liability: Hotel and Resort Sports Related Liability.2

This year's approach will focus on public pools encompassing not only municipally funded facilities, but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act,3 we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act ("HPPA"),4 then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.

II. The Duty of Care

The Occupiers Liability Act

The Occupiers' Liability Act ("OLA") establishes the standard of care applicable to occupiers in section 3(1) and (2) of the OLA:

Occupiers' Duty

3. (1) An occupier of premises owes a duty of care to take such care as in all circumstances of the case is reasonable to see that persons entering the premises, and the property brought on the premises by those persons are reasonably safe while on the premises [emphasis added].

3. (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on while on the premises.5

The Supreme Court of Canada (the "SCC") in Waldick v. Malcolm clarified that the OLA is to "promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe".6 Furthermore, the SCC stated that the OLA is framed broadly as the determination of liability is dependent on the facts of each case.7

Occupiers must take reasonable care in all circumstances to ensure that visitors are reasonably safe while on their property.8 This duty extends not only to the condition of the premises but also to activities that guests will participate in while on the premises.9 The standard of care required is one of reasonableness – that is, an occupier is not required to ensure that the premises are perfectly safe but simply reasonably safe given all of the circumstances. So, what is reasonable for individual landowners may not be reasonable for the occupiers of recreational facilities. The organizations overseeing public beaches, public pools, community centres, and municipalities have more resources than private landowners and thus may be held to a higher standard.

III. HPPA Pool Regulations10

As per the HPPA, public pools fall under three classes...

Understanding how a swimming pool is classified under the HPPA is necessary to ensure that the safety precautions in place meet the legislative requirements so that an occupier can protect itself against a negligence claim if an injury or death occurs on its premises. As per the HPPA, public pools fall under three classes, two of which will be discussed here.11 Class 'A' pools are "public pool[s] to which the general public is admitted" or that is part of a program "supported in whole or in part by public funds or public subscription".12 Pools on the premises of recreational camps are also included in Class 'A'.13

Class 'B' pools include public pools that are:14

  1. operated on the premises of an apartment building that contains six or more dwelling units or suites or a mobile home park, for the use of the occupants and their visitors,
  2. operated as a facility to serve a community of six or more single-family private residences, for the use of residents and their visitors,
  3. operated on the premises of a hotel for the use of its guests and their visitors,
  4. operated on the premises of a campground for the use of its tenants and their visitors,
  5. operated in conjunction with,

    1. a club for the use of its members and their visitors, or
    2. a condominium, co-operative or community property that contains six or more dwelling units or suites for the use of the owners or members and their visitors,
  6. operated in conjunction with a child care centre, a day camp or an establishment or facility for the care or treatment of persons who have special needs, for the use of those persons and their visitors, or
  7. neither a Class 'A' pool nor exempt from the provisions of the HPPA.

Public pools under Class 'A' of the HPPA are required to be monitored by lifeguards. These pools are required to have varying numbers of lifeguards depending on the number of bathers on the deck and pool.15 Furthermore, there are requirements for the competency of each lifeguard, including that he or she be a minimum of 16-years of age and "be the holder of a current lifeguard certificate".16

Class 'B' pools are also are subject to the same requirements, but with some exemptions.17 The HPPA permits public pools under Class 'B' to forgo the use of lifeguards when they meet the following requirements: the water surface does not exceed ninety-three square meters (or approximately eleven square feet), or where the water surface exceeds ninety-three square meters, but the number of bathers is limited to 10 people or less. However, occupiers of these pools must display a sign cautioning guests that the pool is unsupervised. All signs must be at least twenty-five millimetres high and include the following:

C A U T I O N

THIS POOL IS UNSUPERVISED. BATHERS UNDER TWELVE YEARS OF AGE ARE NOT ALLOWED WITHIN THE POOL ENCLOSURE UNLESS ACCOMPANIED BY A PARENT OR HIS OR HER AGENT WHO IS NOT LESS THAN SIXTEEN YEARS OF AGE.18

If the pool exceeds ninety-three square meters, but the pool is restricted to 10 bathers or less at a time, the following sentence must be added to the sign in addition to the above:

THE TOTAL NUMBER OF BATHERS ON THE DECK AND IN THE POOL SHALL NOT EXCEED TEN.19

IV. Unsupervised Pools Versus Supervised Pools

The potential of a pool-related lawsuit is exponentially increased when a pool is unsupervised: according to the Life Saving Society, pool related deaths account for 8% of all drowning deaths in Canada, but where a lifeguard was on duty that number drops to approximately 1%.20 In 2017, there were 283 unintentional water fatalities in Canada.21 The major risk factors contributing to drowning incidents are:

  • the inability to swim (40%),
  • swimming alone (29%),
  • the consumption of alcohol (34%), and
  • a heart disease/heart attack (20%).22

In 2018, a 24-year-old mother and her 5-year-old daughter drowned while swimming in an unsupervised swimming pool at a resort.23 This tragedy underscores how dangerous unsupervised swimming pools can be for bathers.

However, even where a pool is supervised, an occupier may still be found responsible if adequate resources were not provided to the lifeguard. The HPPA sets out regulations that occupiers must adhere to, such as:

  • what life-saving equipment must be available,
  • the filtration and clarity of the water, and
  • the minimum number of lifeguards and assistant lifeguards required to be on duty.24

The HPPA also sets out strict guidelines for the number and type of human personnel required.25

In the rare case that an injury or death does occur while under the supervision of a lifeguard, the occupier will be held liable if it did not ensure that the lifeguards were properly trained and adequately deployed as per the HPPA. Although a breach of these requirements does not automatically result in a finding that the occupier is liable, the plaintiff will presumably have an easier time proving its case.

Those supervising the swimmers, whether it be a lifeguard or a teacher supervising students, can also be held liable. In Crupi v. Royal Ottawa Hospital

, the court sets out the duty of care required of lifeguards, which is the duty to be "...vigilant, attentive and alert at all times in the performance of their duties".26 This is a less onerous duty of care than that imposed upon a teacher supervising his or her pupils at a public pool. Unlike lifeguards who are responsible for general supervision only, teachers are expected to directly supervise the children while in the water.27 A recent high-profile case, in which a teacher who failed to adequately supervise students on a school trip ended in the drowning death of a 15-year-old boy, resulted in the teacher being charged with criminal negligence.28 There is no expectation on a lifeguard to constantly observe every single individual in a swimming pool. In Crupi v. Royal Ottawa Hospital, the court found that where a lifeguard has taken all reasonable steps to identify distress before an injury or death occurs, then said lifeguard will not be found liable. A lifeguard is not "expected to see every incident".29 However, where lifeguards are found liable, the finding of liability may, in turn, lead to an occupier being found liable for not ensuring that the lifeguards it hired were competent and properly trained.

V. Risk Management Strategies

It is clear that the operators of public pools are exposed to a multitude of liability risks. These risks can extend to various areas of law and present complications not easily foreseen. For example, in Blue Mountain Resorts Limited v. Ontario, after a drowning death occurred on the premises of a resort, the occupier found itself embroiled in a labour law dispute over which legislative bodies had jurisdiction when a drowning death occurs.30 Protracted and unexpected litigation obviously can create both a financial and time-consuming strain on organizations.

Unfortunately, unlike many sports and recreational activities, the nature of public swimming pools does not usually make the use of waivers feasible. However, there are many strategies available to operators that can minimize liability risks, which are discussed below. Â

  1. Lifeguards - When it comes to lifeguards, occupiers of pools should ensure they employ, at minimum, the required number of lifeguards mandated by the HPPA, and that the lifeguards hired are certified as properly trained. Furthermore, it is imperative that lifeguards are not distracted from their jobs. A recent tragedy in Quebec occurred at a municipally owned community centre when a 14-year-old student drowned in the presence of a lifeguard. It is believed the student drowned because the lifeguard was distracted when the lifeguard had to take over teaching the class. This situation occurred because the school sent a substitute teacher who did not have the requisite training to lead the swimming lessons.31 The family of the drowning victim subsequently announced their intention to sue both the school board and the city for negligence.32 This tragedy reinforces the importance of ensuring that lifeguards are not only present but that they are also alert and not distracted.
  2. Signage or Pictograms - Notices are also required at all public pools to inform bathers that glass containers are not allowed near the pool, the maximum amount of bathers permitted at a time, and the location of a telephone for emergency use.33 Occupiers of public pools would also be wise to consider the use of additional signs, beyond those mandated by the HPPA that may provide additional protection from a liability standpoint. Signs should provide the depth of water and instruct swimmers that there is 'No Diving' permitted. Language barriers should also be considered. Signs employing pictograms along with words will be of value to swimmers who are unable to read signs in English.
  1. Slip & Falls - To minimize the risk of slip and fall accidents around the pool, staff should be instructed and trained to clean up spills and ensure that equipment around the pool is stored properly. Pool owners can also consider using cleaning products to add a non-slip barrier, as well as placing non-slip mats in areas that are high risk.
  2. Demarcation - Finally, the colour of the pool edge should be different than the rest of the surrounding floor so that those in attendance at the pool can see where the pool edge begins.

VI. Conclusion

Operators of public swimming pools should be aware of swimming pool legislation, such as the HPPA and, more generally, the application of the OLA to swimming pools. It is important to keep abreast of changes in the legislation.

Owners of public pools would also be wise to implement risk management solutions that go above and beyond those mandated by the HPPA. Â Measures such as ensuring that lifeguards are trained and alert, using extra signage around the pool with pictograms, and taking precautions to prevent slip and fall accidents all go a long way in preventing a loss.

In order to assist their insureds, insurers should also take note of these mitigation strategies and be aware of the latest regulatory changes, developments, and trends in recent case law. By implementing these strategies, it is much more likely that there will be beneficial results for both insureds and insurers.

Footnotes

1 James Tomlinson et al, "Caution! This pool is unsupervised! Resort liability of unsupervised facilities" (McCague Borlack, 2013).

2 Emily Kostandoff and James Tomlinson, "Swimming in Liability: Hotel and Sports Related Liability" (McCague Borlack, 2017.

3 Occupiers' Liability Act, RSO 1990, c. O.2 [OLA].

4 RRO 1990, Reg 565 Public Pools [HPPA].

5 OLA, supra note 3 at ss 3(1), (2).

6 [1991] 2 SCR 456 at para 477.

7 Ibid, at 472.

8 OLA, supra note 3 at s3.

9 GHL Fridman, The Law of Torts in Canada (Thomson Reuters Canada Limited, 2010).

10 As per HPPA, supra note 4, s. 4.1(1), the following public pools are exempt from Regulation 565: 1) Pools used by the occupants and their visitors of an apartment building, condominium or co-operative or commune property with fewer than six dwelling units or suites; 2) Pools used by members of a community of less than six single-family private residences; and, 3) Pools operated on the premises of a hotel that has fewer than six units or suites for the use of its guests, if the following notice is displayed in a conspicuous place within the pool enclosure printed in letters at least 25 millimetres high with a minimum five millimetre stroke: CAUTION SWIM AT YOUR OWN RISK THIS POOL IS NOT SUBJECT TO THE REQUIREMENTS OF ONTARIO REGULATION 565 (PUBLIC POOLS).

11 Class 'C' facilities include: public wading pools, public spray pads or public splash pads, and a water slide receiving basin that serves solely as a receiving basin for persons at the bottom of a water slide.

12 HPPA, supra note 4, s.2.1.

13 Ibid, s.2.1.

14 Ibid, s.2.2.

15 Ibid, s.17(2).

16 Ibid, s.17(6).

17 It should be noted that where the pool is located in a child care centre or a day camp, these exemptions do not apply.

18 HPPA, supra note 4 at 19(a).

19 Ibid, at 19(b).

20 "Canadian Drowning Report 2018 Edition", Drowning Prevention Research Centre Canada at 6.

21 Ibid, at 2.

22 Ibid, at 10.

23 Nick Westoll and Kamil Karamal, "Mother and daughter dead after being found in Blue Mountains resort pool", Global News (26 June 2018).

24 HPPA, supra note 4, s.20, s.7, and s.17.

25 Section 17 of the HPPA sets out two charts indicating the number of lifeguards and assistant lifeguards required to be present. These numbers are based on the size of the pool and the number of bathers.

26 1988] O.J. No. 2858, at para 46 ["Crupi"].

27 Moddejonge v. Huron County Board of Education [1972] 2 O.R. 437 (Ont. H.C.).

28 Claire Floody and May Warren, "Teacher charged with criminal negligence causing death a year after drowning of student in Algonquin Park" The Star (26 June 2018).

29 Crupi, supra note 26 at para 47.

30 2013 ONCA 75.

31 Sidhartha Banerjee, "Quebec teen drowned during school swim and nobody noticed for 38 minutes" Global News (27 Nov 2018).

32 Kamila Hinkson, "Family of Montreal teen who drowned during swim class to sue city, school board" CBC News (28 Nov 2018).

33 HPPA, supra note 4, s.19.1.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions