In Schneider v. St. Clair Region Conservation Authority (September 9, 2009), the Ontario Court of Appeal overturned a trial judge’s decision regarding occupiers duty of care for landowners that permit recreational use of their lands. The court reasoned that the trial judge’s decision to narrow the application of the lesser duty of care under section 4(1) the Occupiers’ Liability Act (the “Act”) was contrary to the intention of the Legislature to encourage occupiers to make their lands available to the public for recreational use. In addition, the court held that to constitute “reckless disregard” under section 4(1) of the Act, it is necessary to show that the occupier knew or should have known that injury was likely.
The Occupiers’ Liability Act
The Act (section 3 (1)) imposes a duty on the occupier of premises to take reasonable care to see that persons and their property are reasonably safe while on the occupier’s premises. However, the Act prescribes a less onerous duty (section 4(1)) on the occupier of “recreational trails reasonably marked by notice as such”, “to not act with reckless disregard” to the person or his or her property.
The Trial Decision
The defendant Conservation Authority owned a park and encouraged its use by the general public, free of charge, for recreational purposes. After cross country skiing along a marked trail in the park, Ms. Schneider decided to venture off the trail. After leaving the trail, she struck her ski on a concrete wall that was unmarked and hidden below the snow, injuring her leg.
The trial judge held that the off trail area in the park was not a “recreational trail” under section 4(4) of the Act. Furthermore, even if this area was a recreational trail, the Conservation Authority acted with “reckless disregard” for the safety of users of the park by not marking a concrete wall in an offtrail area. According to the trial judge, the more onerous duty of care under section 3(1) of the Act should be applied, and he found the Conservation Authority liable for Ms. Schneider’s injuries.
The Appeal Decision
On appeal, the court considered two main issues:
- Whether the trial judge erred in concluding that the lesser duty of care provided in section 4(1) did not apply because the off trail premises did not constitute “recreational trails reasonably marked by notice as such”; and
- Whether the trial judge erred in finding that the appellant acted with reckless disregard for the safety of users of the park by not marking the off trail concrete wall.
In deciding that the trial judge erred in both respects, the Court of Appeal looked to the purpose of the Act as a whole and, in particular, the intention of the Legislature in enacting section 4. The court held that section 4 of the Act was intended to encourage occupiers to promote the use of recreational trails on their land by members of the public without fear of being sued for damages by persons who were injured while engaged in recreational activities on their land. The Legislature warranted imposing a lesser duty on certain types of premises, including recreational trails, on the basis that the existence and availability of recreational activities was heavily dependent on the use of such private lands.
The court therefore held that “recreational trails reasonably marked by notice as such” included marked trails and associated off trail locations, as it would make little sense to limit the lesser duty of care under section 4(1) to users when they stayed on marked trails, but to impose a greater duty when off trail.
On the second issue, the court reasoned that in order to reach the level of “reckless disregard”, the court must find that the occupier knew or should have known that injury was likely. In this case, the court held that there was no evidence to establish that the Conservation Authority knew or ought to have known that cross country skiers were likely to venture off trail and collide with a partially snow covered wall, resulting in serious injury.
The Court of Appeal accordingly set aside the decision of the trial judge.
This decision has clarified the law with respect to the interpretation of occupiers’ liability under the Act. In the future, it is expected that attempts to further narrow the categories of premises subject to the lesser duty of care under section 4 will be resisted by the courts.