By Breanna LeBlanc

Situated along the Niagara Escarpment, the City of Hamilton is responsible for over 180 kilometres of recreational trails. It is known as the “Waterfall Capital of the World”, and the trails attract various people looking to enjoy nature and the summer weather.

But with more people looking to access the trails, what happens when injuries occur? Namely,

• Who is responsible when someone is injured on a trail?
• What obligations do occupiers of trails owe to those using their trails?

As a starting point, Ontario’s Occupiers’ Liability Act provides that people who enter onto a recreational trail are “deemed to have willingly assumed all risks associated with the premises”.

This provision seems to absolve the landowner or municipality (who we will call the ‘occupier’) of all liability for injuries sustained on a trail. It means that rather than having to take reasonable steps to make the premises safe, the occupier need only avoid intentionally causing harm or acting with reckless disregard for the safety of trail users. This is a much higher threshold for an injured person to overcome.

This change in the usual standard of care, which normally requires occupiers to keep people on their land reasonably safe, is designed for policy reasons.

Lawmakers in Ontario want to encourage people occupying trails to continue to permit the public to have access to them. If every accident exposed an occupier to potential liability, that would likely deter many landowners from leaving trails open for public use. 

But does that mean that the occupier is absolved of all liability that happens while someone is out, enjoying a hike or a ride on a trail?

The short answer is no, because where the injured party can prove that the occupier engaged in reckless disregard of the person injured on the trail, the occupier can be found liable.

The difficulty is that finding that an occupier acted with “reckless disregard” is a high standard, and it typically requires more than carelessness or negligence and is dependent on the factual circumstances.

Courts in Ontario have found that “reckless disregard” means doing or not doing something which the occupier knows is likely to cause damage or injury and not caring about whether such damage or injury results.

Some factors a Court may consider when determining whether an Occupier demonstrated “reckless disregard” are:

• whether there was something unusually harmful or dangerous about the property;
• whether they knew, or should have known, of the danger; and,
• how, or if, they dealt with the danger.

For example, in Labanowicz v. Fort Erie 2017 ONSC 630, a cyclist was riding on the Niagara River Trail and collided with the steel housing of an empty bollard.  Three years before the incident, a report recommended that the municipality paint around the bollard casings to reduce liability. While some painting did occur, it did not continue in the area in which the incident occurred. The Court held that the City acted with reckless disregard, noting that if the cost and ease of implementing a safety measure was minimal, then not implementing the safety measure would contribute to raising the conduct of the occupier to the level of reckless disregard.

Comparably, in Matthew Pierce and Robert Pierce v. City of Hamilton, 2013 ONSC 6485, the Plaintiff was walking with friends in a wooded area in Scenic Drive Park and chose to venture out on his own and off the trail at which time he fell into a deep ravine thereby sustaining injuries. The Court held that the City did not act with reckless disregard.

The caselaw reiterates that each case turns on its own facts, and that while an occupier does not have an affirmative duty to take reasonable care for people on a recreational trail, if the occupier knows a danger exists and had an easy way to fix the hazard or alert users to the hazard, the injured person likely has a good chance a convincing a court that the occupier did, in fact, act with reckless disregard.                                                                                                                                                                                                                                                                                        You can reach Breanna LeBlanc at breanna@virklawyers.com

Breanna LeBlanc has extensive experience working on cases against municipalities. She works creatively to ensure municipalities are held accountable.