Slip and fall season is fast approaching, much to the dismay of many. Still, with winter comes breathtaking snow falls, making for picture walks along recreational trails, and otherwise within our communities.

What happens when we fall on one of our picture perfect walks, when in a park or when deep in the woods? The Ontario Superior Court of Justice has recently considered this issue, in the case of Franklin et. a. v The City of Greater Sudbury, discussed below.

On December 18, 2011, Linda Franklin was enjoying a leisurely walk with her husband and their two dogs; and while walking across the west parking lot of Delki Dozzi Park (“DDP”), Mrs. Franklin slipped and fell.

DDP is best described as a large multi-use park, comprised of a walking trail, a baseball diamond, etc. The City of Greater Sudbury was responsible for maintaining DDP, which it did during the summer, spring, and fall. In the winter, however, the park’s maintenance was restricted as a result of the reduced use of many of its features (ie. outdoor tennis courts, outdoor bocce couts, etc.). Its west parking, in the result, was unfortunately not maintained, hence the cause of Mrs. Franklin’s fall.

Prior to delving further into the specifics of this case, a review of the relevant provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“the Act”) is set out for readers, below:

Section 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.

Section 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.

Section 4(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),

(b) where the occupier has posted no notice in respect of entry and has not otherwise expressed permitted entry; or

(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.

Section 4(4): The premises referred to in subsection (3) are,

(f) recreational trails reasonably marked by notice as such; …

In considering the provisions, above, the issues in this case were these:

1. Did Mrs. Franklin’s accident occur on premises that would fall within the definition of a recreational trail marked by notice as such?

2. If the answer to #1 is yes, did the City of Greater Sudbury act with reckless disregard of Mrs. Franklin’s presence?

3. If the answer to #1 is no, did the City of Greater Sudbury take such care as in all the circumstances of the case was reasonable to see that Mrs. Franklin was reasonably safe while on the premises?

With respect to issue #1, the following facts are of note: Mrs. Franklin entered DDP through its west parking lot which was located several hundred meters from the walking trail on the premises, along which Mrs. Franklin did not intend to walk. This considered, Mrs. Franklin was not a “user” of a recreational trail, the result being that section 4(1) of the Act did not apply. If Mrs. Franklin had intended to walk along the walking trail, however, then the court’s finding would likely have been different. Why? Because according to the Ontario Court of Appeal decision of Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 (CanLII), the lesser standard of care set out in section 4 of the Act applies not just to recreational trails but also to all of the associated off-trail property which would have been owned, in this case, by DDP. The rationale for this general principle is as follows:

In their current iteration, ss. 4(1), 4(3)(c) and 4(4)(f) of the Act work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity and without payment of any fee is deemed to have willingly assumed the risks associated with the activity. In such cases, the duty of the occupier to the person is “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.

… As I have stated, the objective of s. 4(4)(f) of the Act is to encourage landowners to allow recreational use of marked trails on their lands by imposing on them a lesser duty of care. It would make little sense to limit this lesser duty of care to users when they remain on the marked trail, only to impose a greater duty of care when they venture off the trail. As the occupier has no effective way of policing the use of these trials, this would, in effect, impose a duty on the occupier to make the off-trail portions of his or her property safer than the trail itself. This would defeat the purpose of the Act.

With respect to issue #2, in considering the above, this obviously became a non-issue. As to issue #3, however, and the question of whether the City of Greater Sudbury took such care as was in all the circumstances of the case reasonable to see that Mrs. Franklin was reasonably safe, the Court, quite significantly said this: as it was reasonably foreseeable that members of the public, including Mrs. Franklin, would cross along the west parking lot of DDP to gain access to various portions of the park including the children’s playground, the baseball diamond, etc., all of which remained in use by the public (despite the closure of the bocce and tennis courts during the winter season), it was incumbent on the City to do the following: (a) to provide a reasonable level of winter maintenance in the parking lot; (b) to post notice that maintenance had ceased, that hazardous snow and ice conditions may exist and that users enter at their own risk; or (c) to block access to the parking lot. That said, “[t]here will come a point each winter when enough snow has fallen that a reasonable observer would conclude that the western portion of the park is no longer in use and that the parking lot is not being maintained. At that point, which will vary from year to year depending on weather conditions, the City may reasonably cease all maintenance of the [west parking lot] on the basis that there is no good reason to believe that anybody will use it and that its closure will be reasonably apparent to all”. Unfortunately, this was not the case during the time period at issue as there was very little snow on the ground. It would consequently not have been clear to Mrs. Franklin, or to a reasonable observer, that the maintenance of the west parking lot had ceased. The court, in the result, decided against the City, having found that they failed to act reasonably in the circumstance.