No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such".  A person who enters such premises is deemed to have willingly assumed all risks.  The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway.  The Commission brought a motion for summary judgment.  The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4. 

The Divisional Court disagreed.  The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands.  If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4.  Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result".  There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim.  This week, our focus is on a slip and fall action that was dismissed at trial.  Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant.  A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout.  There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care.  The liability analysis in occupier's liability cases is fact driven and varies from case to case.  It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed.  Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.

Slip and Fall Action Dismissed on Summary Judgment Motion

In Occupier's Liability cases, it is important to remember that occupiers are not insurers.

In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (S.C.J.), the plaintiff alleged she fell on debris on the stairs in a subway station.  At her examination for discovery she testified she slipped on floor tiles.  She could not describe what she fell on and there were no witnesses.  A janitor was assigned to the station and followed a detailed schedule of regular maintenance and cleaning.

Justice Perell held that a plaintiff must pinpoint some act or omission on the part of the occupier that caused the plaintiff's injury.  The Occupier's Liability Act does not impose strict liability and the presence of a hazard does not lead inevitably to the conclusion that the occupier has breached its duty.  The occupier does not have to remove every possible danger; the standard of care is one of reasonableness, not perfection. 

Justice Perell allowed the TTC's summary judgment motion and dismissed the claim.  The plaintiff could not prove a hazard existed, and the evidence was that TTC took steps to make its premises as safe as in all the circumstances was reasonable.  He used a common sense approach:

[29]           It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.  

Municipality Not Liable in Recreational Trail Case

Recently the Ontario Courts found a municipality not liable, under section 4(1) of the Occupier’s Liability Act, for the plaintiff’s fall off the edge of a ravine. In coming to this finding the court took an expansive view of when this section applied and indicated what is required to meet the lower standard of care under this section.

In Pierce v. Hamilton(City), 2013 ONSC 6485 (S.C.J.), the plaintiff entered the park on a marked recreational trail near the edge of the Niagara Escarpment, he then left the trail and proceeded on an unmarked dirt path and fell off the edge of the ravine sustaining physical injuries. The City of Hamilton acknowledged that they were the occupier of the premises, but asserted they had met the standard of care.  The trail itself qualified as a recreational trail and was clearly marked as such, but the issue was whether the dirt path also qualified.  The Court held that the standard of care was the same as if the plaintiff was on a marked trail, stating:

“If that owner is given the benefit of the lower standard of care in return for allowing the public to enjoy the recreational trail on the land, it makes no sense to saddle the owner with the higher standard of care the moment a hiker or cyclist or skier moves off of the recreational trail. Further, it makes no sense for two different standards of care to alternately apply as a trail user hops on and off of the recreational trail.”

Given this, the plaintiff was deemed to have willingly assumed all risks associated with the premises and the lesser standard set out in section 4(1) of the Occupier’s Liability Act applied.

The Court accepted the evidence of the representative of the City that they had not received any previous complaints of people falling into the ravine and thus had no information that would suggest there was an unusual danger on any dirt path in the park area.   Justice Henderson rejected the plaintiff’s argument that the City failed to meet the standard of care for failing to conduct inspections of the park, for failing to have warning signs and for failing to construct a protective fence.  Justice Henderson held that it would be impossible for the City to conduct regular inspections of the 3,000 acres of natural areas. Regarding the signage and fencing, the Court held:

“As to signage, clearly a specific warning sign was not warranted if the City was not aware of any specific danger... I find that the failure of the City to erect a more general warning sign, such as "Caution. Uneven Ground in the Woods" does not constitute a breach of its duty. Such a warning sign would in fact be a sign stating the obvious; that is, that the terrain in the woods is uneven and unpredictable... I also reject the plaintiffs' submissions that the City ought to have built a barricade or a fence near the drop-off into the ravine. The danger of a sharp drop in elevation in a wooded area that was near the edge of an escarpment should be obvious to anyone who entered the woods.”

This case builds on the Ontario Court of Appeal decision in the Schneider v. St. Clair Region Conservation Authority case regarding when section 4(1) applies and highlights the lower standard of care under this section.