The duty of care owed by a municipality to persons using recreational trails is set out in section 4 of the Occupiers’ Liability Act. This section provides a lesser duty of care than section 3(1) of the Act, which requires that occupiers take steps to see that persons entering on the premises are reasonably safe while on the premises. The Court of Appeal recently had occasion to consider section 4 and reinforced the existing jurisprudence which provides that reckless disregard for the safety of persons using recreational trails is enough for a finding of liability. Although deliberate intent is also addressed in section 4, it is not a requirement for a finding of liability.
On July 31, 2006, Wanda Labanowicz was riding her bike on the Fort Erie “Friendship Trail” when her front wheel unexpectedly struck a metal bracket that had been placed there by the Town of Fort Erie. Normally, the metal bracket would have had a wooden bollard attached to it. These bollards were placed at the intersections of the Trail and roadways to prevent unauthorized vehicles from accessing the Trail. However, this particular bollard had been removed, leaving the metal bracket exposed. Labanowicz was thrown from her bike causing serious injuries, including a brain injury.
Labanowicz sued Fort Erie for damages sustained as a result of her fall. The amount of general damages, special damages and housekeeping were settled prior to trial. After a five week trial Fort Erie was found liable for Labanowicz’s damages and she was awarded $737,000 for loss of income and $921,508 in costs.
3.0 The Appeal
Fort Erie appealed the trial judge’s decision on four grounds:
1. The trial judge erred in his interpretation of section 4 of the Occupier’s Liability Act;
2. The trial judge erred in failing to attribute any contributory negligence to Labanowicz for not wearing a helmet.
3. The trial judge failed to apply the “but for” test in his analysis of causation and damages; and,
4. The trial judge did not have jurisdiction to award damages for loss of income because Labanowicz was a unionized employee.
Fort Erie also sought leave to appeal the costs award on the basis that the costs awarded exceeded the reasonable expectation of the parties. The Court of Appeal dismissed all four grounds of appeal and denied leave to appeal the costs award. The first two grounds of appeal are discussed below.
Section 4 of the Occupiers’ Liability Act
The Friendship Trail is a recreational trail and therefore the lesser duty of care under section 4 of the Occupiers’ Liability Act applies.
Section 4 states:
The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.
During the trial the judge heard hearsay evidence that the bollard where Labanowicz fell had been found in a ditch a few days before the fall and was replaced by a Fort Erie maintenance crew. No direct evidence was presented as to how the bollard was secured, if at all.
The trial judge found that Fort Erie’s system of securing the wooden bollards was “haphazard”, particularly given that the evidence at trial showed that Fort Erie knew that the bollards could easily go missing and were subject to vandalism. Further there was evidence presented that bollards at other intersections had “diamonds” painted around them for safety reasons but the location of Labanowicz’ fall did not. Additionally, bollards at certain intersections were locked and others were not. Fort Erie could not provide a satisfactory explanation for these differences at the various intersections. At most they indicated that future maintenance costs would have been a problem. The judge did not accept this explanation given that some intersections already had painted diamonds and locks.
The trial judge ultimately found that “the existence of an unpainted, unlocked and relatively easily removable bollard which exposes a housing or saddle above grade that has limited, if any, conspicuity amounts to reckless disregard to the safety of the persons using the Trail.”
On appeal, in addition to other things, Fort Erie argued that the trial judge was obliged to find that it acted intentionally with reckless disregard to the safety of others. The Court of Appeal dismissed this ground of appeal and held that Fort Erie’s interpretation of section 4 has no support in the case law. Citing its 1989 decision in Cormack v. Mara (Township) the Court held that section 4 does not require a deliberate act. Quoting that case, the Court stated “the issue is whether in all the circumstances, the respondent has proven that the appellant Township did ‘act with reckless disregard of the presence of the respondent snowmobiler on its property’”.
According to the Court, to “act with reckless disregard of the presence” means to do or omit to do something which the appellant ought to recognize as likely to cause damage or injury. The section does not require a finding of deliberate intent.
Contributory Negligence: Labanowicz’s Failure to Wear a Helmet
Fort Erie argued that the trial judge erred in not attributing any contributory negligence to Labanowicz for failing to wear a helmet. However, Fort Erie did not introduce any evidence at trial showing that Labanowicz’s injuries would have been less severe had she been wearing a helmet. Therefore, the trial judge found that Labanowicz was not contributorily negligent for failing to wear a helmet.
The Court of Appeal agreed with the trial judge on this issue and dismissed this ground of appeal.
This case affirms the interpretation of section 4 of the Occupiers’ Liability Act set out in Cormack v. Mara (Township), namely that liability under section 4 does not require an intentional act or a deliberate intent to harm.
Municipalities can be held liable under section 4 for damages sustained on recreational trails if they act with reckless disregard of the presence of people using these trails. Maintenance systems for these trails should be reviewed from time to time and any known safety issues should be addressed. This case also shows that consistency in maintenance is important. The same safety precautions and maintenance standards should be applied throughout the length of the trail. Finally, any issues, actions taken in response, and maintenance should be documented as much as possible.
This case also demonstrates the importance of expert evidence when addressing issues of human biomechanics and contributory negligence. The Court will almost always require expert evidence to make a finding in this regard, whether the issue involves lack of a helmet or seatbelt, or improper footwear.
You can read the full text of this decision here.
If you have any questions regarding this case or any issue involving municipal liability or the Occupiers’ Liability Act please contact us.