An action was commenced against a municipality under the Occupiers’ Liability Act for injuries and damages sustained after a teenager fell from a tree located in a municipal park. The court in Eric Winters v. Corporation of Haldimand County (2013 ONSC 4096 (CanLII)) dismissed the action, but left the door open for a municipality to be found liable in certain circumstances.

On September 28, 2011 the plaintiff (Eric Winters) fell from a tree and was rendered paraplegic at the age of 16. Although the plaintiff was a teenage boy at the time of the accident, he was not considered a “risk-taker”. The tree was a swamp willow located at the rear of a municipal park. It had multiple large limbs growing at or near its base. The tree was known by Eric and some of his friends as “the Chilling Tree” and had been used for many years by teenagers to congregate, climb, or sit on. The municipal park was described as being “passive.” It had trees, a lawn, some picnic tables, and an unusable skateboard pad. The municipality would maintain the trees, trimming them so they would not block walkways and removing deadwood which would be dangerous. Prior to the plaintiff’s accident, there had been no complaints about the tree.

As a result of the accident an action was commenced against the municipality as the occupier of the park. The focus of the court’s liability analysis was on Section 3(1) of the Occupiers’ Liability Act which requires an occupier to take reasonable care to see that persons entering a premises are reasonably safe. The alleged breaches of the municipality’s duties under Act were as follows:

  1. the municipality failed to have in place a reasonable system to inspect and monitor the use of the municipal park by teenagers;
  2. the municipality failed to trim the “Chilling Tree” to prevent it from being easily climbed and used as a sitting perch or bench;
  3. the municipality failed to remove the “Chilling Tree” entirely; and/or
  4. the municipality failed to implement and enforce rules against climbing trees in the municipal park.

The court considered that the municipality’s practice of being at the park on at least a weekly basis during business hours constituted reasonable monitoring of the park; particularly as there were no prior complaints about the “Chilling Tree” and no municipal witness had ever previously seen anyone climbing the tree. Further, although the “Chilling Tree” was attractive to climb with a large horizontal limb eight feet above the ground, the court held that it was no more unreasonable for the municipality to leave the tree as it was than it was to leave any other horizontal surface from which someone could fall. As such, it would not be reasonable to require the municipality to trim the “Chilling Tree” or remove it entirely. Finally, in dismissing the plaintiffs’ action, the court noted that a municipality does not have limitless resources, and it ought not to be obliged to forbid all activities which, with hindsight, might prove to be dangerous.

The court’s analysis also focused on the issue of foreseeability, and seemed to leave the door open for a finding of liability if the circumstances were different; for instance, if the municipality had prior notice of a tree being attractive to climbers or that a particular tree enticed risk-taking behaviour. In doing so the court endorsed the principle enunciated in the prior case of Ricard v. Trenton (City), [2000] O.J. No. 4700. In Ricard v. Trenton (City), while dismissing a claim brought against a municipality in respect of the death of a child who had been tree-climbing, the court commented:

“It may well be that, on occasion, certain trees by their nature, or by their locations, become a haven for tree climbers. And, should that occur, it might well be that a duty to do something applies.”