In a previous blog article, I wrote about terrible accident that occurred on an Ottawa bike path within land administered by Parks Canada. A good portion of the bicycle paths in the area are also administered by the National Capital Commission (the NCC).
A recent Divisional Court case dealt with one of the legislative barriers that an injured plaintiff will have to overcome to succeed in an action in this type of situation. In Cotnam v. The National Capital Commission (2014 Div. Ct.), a cyclist fell on a bike path on the Experimental Farm within the City of Ottawa as he came to a bend in the route. He alleged that the signage on the pathway was improper and constituted a danger.
Although this decision focused on an analysis of summary judgments, it also addressed the following sections of The Occupiers’ Liability Act, R.S.O, which provides as follows:
3. (1) An occupier of premises owes 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.
Risks willingly assumed
4. (1) 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.
Trespass and permitted recreational activity
(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),
(c) where the entry is for the purpose of a recreational activity and,
(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and
(ii) the person is not being provided with living accommodation by the occupier.
Justice Lofchik in Cotnam cited a 2009 Court of Appeal case, Schneider v. St. Clair Region Conservation Authority, in its analysis of the sections above. In short, it held that when someone enters a recreational trail that is reasonably marked, for a recreational activity without payment of any fee, that person is deemed to have willingly assumed the risks associated with the activity. And, the occupier of these lands (e.g the governmental owner) cannot be held responsible for injury unless it engaged in reckless disregard of the persons who entered onto the land.
Justice Lofchik continued, stating that acting in reckless disregard of the presence of a person means “doing or needing to do something which he or she should recognize as likely to cause damage or injury to the person present on his or premises and not caring whether such damage or injury results.”
Precisely what an occupier such as the NCC would have to do to avoid liability (or a plaintiff to establish it) will depend on the facts of each case, but it will involve an analysis of the sufficiency of signage and other traffic control devices, knowledge of the hazard, the significance of the hazard, and determination of what other steps could be made to mitigate risks to those entering onto the lands. These are not always easy questions to answer, and a lawyer should be consulted when faced with the type of situation that the plaintiff in Cotman found himself in.
For assistance in evaluating a potential personal injury claim, please contact Richard Nishimura (Extension 229) or Marc Binavince (Extension 202) at 613-722-1313, or speak to our receptionist to direct your call to the appropriate person.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.