Deborah Burlach

Following a successful appeal by the St. Clair Region Conservation Authority, the court determined the quantum of trial costs.

The parties had previously agreed that the Township's costs of $51,539.81 would be paid by the unsuccessful party.

The Region sought $50,000 for its trial costs.

The court reduced the Region's trial costs to $18,000, noting that the appeal clarified a novel issue under the Occupiers' Liability Act and that the total costs burden on the respondents would otherwise be disproportionate.

The respondent was injured while cross-country skiing in a conservation area when she skied off a marked trail and struck a concrete wall hidden beneath the snow.

The trial judge found the appellant liable under section 3(1) of the Occupiers' Liability Act, concluding that the lesser duty of care under section 4(1) did not apply because the area was not a recreational trail.

The Court of Appeal allowed the appeal, holding that the lesser duty of care applied to users who venture off marked recreational trails.

The Court further held that the appellant did not act with reckless disregard for the safety of the users, as there was no evidence the appellant knew or should have known the hidden wall posed a likely risk of injury to off-trail skiers.