Schneider et al. v. St. Clair Region Conservation Authority et al. [Indexed as: Schneider v. St. Clair Region Conservation Authority]
97 O.R. (3d) 81
Court of Appeal for Ontario,
Feldman, Gillese and Rouleau JJ.A.
September 9, 2009
Torts -- Negligence -- Occupiers' liability -- Plaintiff injured while cross-country skiing in conservation area when her ski struck concrete wall hidden below snow -- Trial judge erring in finding that premises did not constitute "recreational trails" under s. 4(4) of Occupiers' Liability Act as plaintiff had skied off marked trail when she was injured and as premises were used for other purposes in summer months -- Trial judge's finding that defendant knew or ought to have known that concrete wall would likely be hidden by snow and that park was regularly used by cross-country skiers not providing sufficient basis for conclusion that defendant acted with "reckless disregard" of presence of users of park -- Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 4.
The plaintiff was injured while cross-country skiing in a conservation area when her ski struck a concrete wall hidden below the snow. From May to October, the conservation area was used for a wide variety of activities. During the winter months, it was used for such activities as cross-country skiing, tobogganing and hiking, but the defendant did not perform any maintenance services. The plaintiff had been following a marked trail, but had skied off the trial just before the accident. The trial judge held that the defendant was bound by the duty of care set out in s. 3(1) of the Occupiers' Liability Act, and that the lesser duty of care established by s. 4(1) did not apply because the park did not come within the categories of premises listed in s. 4(4). He found that the premises did not fall within s. 4(4)(f) of the Act as they were "much more than a recreational trail", and noted that the wall with which the plaintiff collided was not situated on one of the park's recreational trails. He also found that, if the park did fall within s. 4(4), the defendant had displayed a reckless disregard for the safety of the users of the park. The plaintiff's personal injury action was allowed. The defendant appealed.
Held, the appeal should be allowed.
The trial judge erred in finding that the lesser duty of care provided in s. 4(1) of the Act did not apply because the premises were not captured by s. 4(4). The objective of s. 4(4) (f) of the Act is to encourage landowners to allow recreational use of marked trails on their land by imposing on them a lesser duty of care. It would make little sense to limit that lesser duty 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 the trails, that 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. That would defeat the purpose of the Act. It was not relevant that, during the summer months, other portions of the park were used for various recreational activities such as soccer and picnicking. There was no suggestion that, in the winter months, the area where the injury occurred was designed for any particular use other than being a general area within which the trails used by cross- country skiers were located. The fact that other portions of the park were the site for other types of activities, principally from May to October, did not change the nature of the area or the nature of the use where the injury occurred. The premises were captured by s. 4(4). [page82 ]
The trial judge's findings that the defendant knew or ought to have known that the concrete wall would likely be hidden by snow and that the park was regularly used by cross-country skiers did not provide a sufficient basis for concluding that the defendant acted with reckless disregard for the presence of users of the park. To reach the level of reckless disregard, more is required. The court must find that the occupier knew or should have known that injury was likely. That finding was not made in this case, and there was no basis for making it.
APPEAL from the judgment of Tausendfreund J. (2007), 2007 60790 (ON SC), 89 O.R. (3d) 150, [2007] O.J. No. 5325 (S.C.J.) for the plaintiff in a personal injury action.
Cases referred to Moloney v. Parry Sound (Town), 2000 5618 (ON CA), [2000] O.J. No. 140, 184 D.L.R. (4th) 121, 94 A.C.W.S. (3d) 594 (C.A.); Onyschuk v. Silver Harbour Acres Ltd. (1984), 1984 2030 (ON SC), 49 O.R. (2d) 762, [1984] O.J. No. 3438, 29 A.C.W.S. (2d) 194 (H.C.J.), distd Other cases referred to Alchimowicz v. Schram, 1999 2655 (ON CA), [1999] O.J. No. 115, 116 O.A.C. 287, 49 M.P.L.R. (2d) 299, 85 A.C.W.S. (3d) 470 (C.A.); Cormack v. Mara (Township) (1989), 1989 4279 (ON CA), 68 O.R. (2d) 716, [1989] O.J. No. 647, 59 D.L.R. (4th) 300, 33 O.A.C. 55, 44 M.P.L.R. 1, 13 M.V.R. (2d) 262, 15 A.C.W.S. (3d) 204 (C.A.); Doyle v. Petrolia (Town), 2005 16076 (ON CA), [2005] O.J. No. 1950, 200 O.A.C. 271, 24 M.P.L.R. (4th) 41, 139 A.C.W.S. (3d) 401 (C.A.); Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 S.C.R. 456, [1991] S.C.J. No. 55, 83 D.L.R. (4th) 114, 125 N.R. 372, J.E. 91-1054, 47 O.A.C. 241, [1991] R.R.A. 560, 8 C.C.L.T. (2d) 1, 27 A.C.W.S. (3d) 922; Whitney v. University College of the Cariboo, [2004] B.C.J. No. 1766, 2004 BCSC 1110, 134 A.C.W.S. (3d) 185 Statutes referred to Occupiers Liability Act, R.S.B.C. 1996, c. 337, s. 3(1) Occupiers' Liability Act, R.S.O. 1980, c. 322 [en. S.O. 1980, c. 14] Occupiers' Liability Act, R.S.O. 1990, c. O.2, ss. 3, (1), 4, (1), (3), (4) Family Law Act, R.S.O. 1990, c. F.3 Authorities referred to Ministry of the Attorney General, Discussion Paper on Occupiers' Liability and Trespass to Property (Toronto: Policy Development Division, 1979)
Deborah Burlach, for appellant. Anthony F. Steele, for respondents.
The judgment of the court was delivered by
[1] ROULEAU J.A.: -- The appellant, the St. Clair Region Conservation Authority, appeals from the judgment of Tausendfreund J. The appellant was held liable under s. 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2 (the "Act") for damages suffered by the respondent, Jo-Anne Schneider, in an accident she sustained while cross-country skiing at Coldstream Park. The trial judge held Ms. Schneider to be 20 per cent contributorily negligent and reduced the damages award against the appellant accordingly. The trial judge also awarded damages [page83 ]to Robert Butcher, Ms. Schneider's husband and also a respondent on this appeal, for his derivative claim brought pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
[2] Section 3(1) of the Act imposes on the occupier of premises a duty to take reasonable care to see that persons and their property are reasonably safe while on the occupier's premises. Where a person willingly assumes the risks of entering premises, s. 4(1) of the Act replaces the duty established by s. 3(1) and substitutes a lesser duty on the occupier "to not create a danger with the deliberate intent of doing harm or damage" and "to not act with reckless disregard" with respect to the person or his/her property. Section 4(3) of the Act is a deeming provision such that in certain listed circumstances, a person who enters the types of premises outlined in s. 4(4) is deemed to have willingly assumed the associated risks.
[3] The central question in this appeal is whether the trial judge erred in concluding that the premises where the accident occurred did not fall within the types of premises outlined in s. 4(4). If so, the next question is whether the trial judge [at para. 31] also erred in finding that the appellant nonetheless failed to meet the lesser duty established in s. 4(1) because it had "displayed a reckless disregard for the safety of the users of the park". For their part, the respondents bring a cross-appeal, challenging the trial judge's finding that Ms. Schneider was contributorily negligent and the trial judge's failure to award damages for lost wages.
[4] For the reasons that follow, I would allow the appeal, set aside the trial judgment and dismiss the cross-appeal. Facts
Coldstream Conservation Area
[5] The appellant is the owner of Coldstream Park (the "Park"), located in the Township of Middlesex Centre (the "Township"). The Park is approximately 67 acres in size and forms part of the Coldstream Conservation Area. Coldstream Lake (the "Lake") is situated within the boundaries of the Park.
[6] The Park is bounded by Quaker Lane on one side and Ilderton Road on the other. The trial judge found that several houses are located on these roads. Although there is some dispute between the parties as to the level of residential and commercial development surrounding the Park, it is sufficient for the purposes of these reasons to state that the surrounding community is not urban and there is no residential or commercial development within the borders of the Park. The Park [page84 ]includes a trail system, marked by signs and maps. Part of the trail system is a wooden boardwalk.
[7] The appellant has encouraged the use of the Park by the general public, free of charge, for recreational purposes. It is maintained by the Township and, during the summer months, the public makes use of its pavilion, picnic grounds, playground area, designated walking trails, soccer fields and toilet facilities. Recreational programs, such as camping and a children's summer program, are also offered by a group of local residents who use the Park for these purposes. From May to October, the Township facilitates these recreational uses by cutting the grass, laying out the soccer pitches, removing the garbage and maintaining the washroom facilities.
[8] During the winter months, the Park is used by local residents for other recreational activities, including hiking, tobogganing, skating, hockey and cross-country skiing. The Township does not perform any maintenance activities in the Park from November to April and the toilet facilities are closed. During these months, none of the trails are groomed for skiing and the ice surface on the lake is not maintained. The Accident
[9] Ms. Schneider is a professor of kinesiology and women's studies at the University of Western Ontario in London, Ontario and a former Olympic athlete. On January 30, 2005, she and her husband took their three sons cross-country skiing in the Park.
[10] A five-foot berm sits along the shoreline of the Lake. While following ski tracks and footprints along the wooden boardwalk, Ms. Schneider and her family came to the foot of the berm. When they reached this point, Ms. Schneider left the trail and followed ski marks leading to the top of the berm. For safety reasons, she told her sons to wait while she skied down the berm to the ice surface, with them to follow. Ms. Schneider did so and, before she was able to stop, struck her ski on a concrete wall hidden below the snow.
[11] The concrete wall was built by the appellant with a metal slide gate which, when manually lifted, permits water to flow into an underground pipe for the purpose of powering a decorative water wheel. The metal slide-gate and water wheel had been inoperable for several years. The concrete wall rises approximately six inches above water level but was not visible at the time of the accident due to snow cover.
[12] As a result of the accident, Ms. Schneider sustained a compound fracture of three bones in her right ankle. She was unable to walk or stand for very long and could not return to [page85 ]work until mid-October 2005. In 2006, Ms. Schneider was able to re-engage in some, but not all, of her sporting activities. Legislative Provisions
[13] The key legislative provisions in this case are ss. 3 and 4 of the Act. The relevant portions provide as follows:
Occupier's duty
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.
Idem
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises. . . . . .
Risks willingly assumed
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. . . . . .
Obligation de l'occupant
3(1) Un occupant des lieux a l'obligation de prendre le soin qui s'avère raisonnable dans toutes les circonstances en cause pour veiller à ce que les personnes qui entrent dans les lieux et les biens qu'elles y apportent soient raisonnablement en sûreté lorsqu'ils s'y trouvent.
Idem
(2) L'obligation de prendre soin prévue au paragraphe (1) s'applique, que le risque soit causé par l'état des lieux ou par une activité qui y est exercée. . . . . .
Risques volontairement assumés
4(1) L'obligation de prendre soin prévue au paragraphe 3 (1) ne s'applique pas à l'égard des risques volontairement assumés par la personne qui entre dans les lieux. Toutefois, dans ce cas, l'occupant a envers elle l'obligation de ne créer aucun danger dans l'intention arrêtée de lui faire du tort ou d'endommager ses biens. Il a également l'obligation de ne pas agir de façon insouciante en faisant abstraction de la présence de la personne ou de ses biens. . . . . . [page86 ]
Trespass and permitted recreational activity
(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), . . . . . (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.
Premises referred to in subs. (3)
(4) The premises referred to in subsection (3) are, (a) a rural premises that is,
Entrée sans autorisation et activités de loisir premises
(3) Une personne qui entre dans les lieux décrits au paragraphe (4) est réputée avoir volontairement assumé tous les risques et elle est assujettie à l'obligation de prendre soin énoncée au paragraphe (1) lorsque, selon le cas : . . . . . c) l'entrée est faite dans le but d'exercer une activité de loisirs et que les conditions suivantes sont réunies : (i) aucun droit n'est acquitté pour l'entrée de la personne ou l'exercice de l'activité, autre qu'une allocation ou un paiement reçu d'un gouvernement, d'une agence gouvernementale, d'un club ou d'une association de loisirs à but non lucratif, (ii) l'occupant ne pourvoit pas au logement de la personne.
Lieux mentionnés au par. (3)
(4) Les lieux mentionnés au paragraphe (3) sont les suivants : a) des lieux ruraux qui sont : [page87 ] (i) utilisés à des fins agricoles, y compris des terres en culture, des vergers, des prés, des parcelles boisées et des étangs situés sur une ferme, (ii) des lieux vacants ou non développés, (iii) des lieux boisés ou sauvages; b) des terrains de golf lorsqu'ils ne sont pas ouverts pour y jouer; c) des droits de passage ou des couloirs à l'usage des services publics excluant les constructions qui y sont situés; d) des terrains affectés à l'ouverture éventuelle de routes; e) des routes privées raisonnablement affichées comme telles au moyen d'un avis; f) des pistes de loisir raisonnablement affichées comme telles au moyen d'un avis. Decision of the Trial Judge
[14] The trial judge held that the appellant was bound by the duty of care established in s. 3(1) of the Act. The lesser duty of care established by s. 4(1) did not apply because the Park did not come within the categories of premises listed in s. 4(4).
[15] In his reasons, the trial judge first considered whether the Park, including the Lake, were rural premises as defined in [page88 ]s. 4(4)(a) of the Act. Using a common sense approach to the meaning of "rural premises", he concluded that it was not. It was apparent that the Park had been developed into a recreational park. Based on the evidence, he concluded that the Lake was not a farm pond, that the Park was not used for agricultural purposes and that it was not a vacant, undeveloped or wilderness area.
[16] Relying on this court's decision in Moloney v. Parry Sound (Town), 2000 5618 (ON CA), [2000] O.J. No. 140, 184 D.L.R. (4th) 121 (C.A.), the trial judge further found that the Park was "much more than a recreational trail" and thus did not fall within s. 4(4)(f) of the Act: at para. 28. Specifically, he noted that while the Park did contain marked recreational trails, the concrete wall with which Ms. Schneider collided was not situated on one of these trails.
[17] However, the trial judge went on to find that, in the event that he was wrong and the Park did fall within s. 4(4) of the Act, the appellant had "displayed a reckless disregard for the safety of the users of the park" by not marking the concrete wall with "some form of signage": at para. 31. Therefore, he held that "s. 4(1) does not apply to dislodge from application to these facts the duty of care imposed by s. 3(1)": at para. 29.
[18] The trial judge concluded that the appellant breached its duty under s. 3(1) of the Act by failing "to exercise care against dangers that were sufficiently and normally forseeable": at para. 33.
[19] Damages were assessed against the appellant in the amount of $115,170.58, less 20 per cent to take account of the contributory negligence on the part of Ms. Schneider. The contributory negligence finding was based on the trial judge's assessment that cross-country skiing has possible dangerous consequences. Issues
[20] The issues raised are as follows: (1) On the appeal: (a) Did the trial judge err in concluding that the lesser duty of care provided in s. 4(1) of the Act did not apply because the premises were not captured by s. 4(4)? and (b) Did the trial judge err in finding that the appellant acted with reckless disregard for the safety of users of the park? (2) On the cross-appeal: [page89 ] (a) Did the trial judge err in finding Ms. Schneider contributorily negligent? and (b) Did the trial judge err in denying Ms. Schneider's claim for loss of wages? Analysis 1(a) Did the trial judge err in concluding that the lesser duty of care established by s. 4(1) of the Act did not apply because the premises were not captured by s. 4(4)?
[21] In considering whether s. 4 of the Act applied to the appellant in the circumstances of this case, the trial judge necessarily engaged in an exercise of statutory interpretation. In reviewing his decision, it is useful to consider the purpose of the Act as a whole, and the intention of the legislature in enacting s. 4 in particular.
Purpose of the Act
[22] At common law, persons entering an occupier's premises were traditionally defined as invitees, licensees or trespassers, and the duty of care owed by the occupier to such persons was determined on this basis. In 1980, the legislature enacted the Occupiers' Liability Act, S.O. 1980, c. 14, [See Note 1 below] with the intention of replacing, refining and harmonizing the duty of care owed by occupiers to visitors on their premises: Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 S.C.R. 456, [1991] S.C.J. No. 55, at p. 475 S.C.R.
[23] The Act was continued in the consolidated statutes of 1990, and remained substantively the same. In Waldick, the Supreme Court explained that the goals of the Act were "to promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe": at p. 477 S.C.R.
[24] The appellant has argued that s. 4 of the Act, and s. 4(4)(f) specifically, was intended to encourage occupiers to make their lands available to the public for recreational use. I agree. In a discussion paper published by the Ministry of the Attorney General prior to the enactment of the Act in 1980, Discussion Paper on Occupiers' Liability and Trespass to Property (Toronto: Policy Development Division, 1979), the Attorney General highlighted the tension between the growing participation of urban residents [page90 ]in outdoor recreational activities and the outdated scheme governing occupiers' liability, at p. 7:
The desirable growth of outdoor recreational activities has had some undesirable effects. Urban residents have flocked in ever increasing numbers to the countryside. In the countryside, farmers and other occupiers of land have become fearful of being sued for damages by persons who might be injured while engaged in recreational activities on their land.
[25] The Attorney General also expressed the concern that the prevailing common-law approach to occupiers' liability penalized the benevolent occupier, by imposing a greater duty of care in relation to persons permitted to use the land than to trespassers. At p. 7 of the Discussion Paper:
[A]n occupier owes a greater duty to persons he permits to use his land for recreational activities than he does to trespassers. This penalizes the occupier who is willing to permit recreational activities on his land. It discourages benevolence.
[26] The Attorney General circulated a draft of the proposed Act as Appendix B to the Discussion Paper. Much like s. 4 of the current Act now does, the proposed legislation suggested imposing a lesser duty of care on occupiers of certain types of premises, including "marked recreational trails".
[27] Imposing a lesser duty of care on occupiers of recreational trails of all kinds appears to have been justified on the basis that the existence and availability of these trails was heavily dependent on the use of private lands: see Discussion Paper, at p. 7. As a result, changes to the law limiting occupiers' liability were warranted to encourage occupiers to make their land available for recreational activities. This approach was considered reasonable because, as explained in the Discussion Paper, at p. 10:
[P]ersons permitted to use the land, without charge, for recreational activities . . . have usually assumed that they are responsible for their own injuries, though the existing law would technically consider them as licensees. They are grateful for the privilege being extended to them. The proposal that such entrants would assume their own risks seems to accord with usual expectations of those who pursue recreational activities on private lands.
[28] 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 [page91 ]reckless disregard of the presence of the person or his or her property".
[29] In my view, it is clear that the legislature intended that s. 4 of the Act encourage occupiers to promote the use of recreational trails on their land by members of the public. Against this backdrop, the central question on this appeal is whether the trial judge erred in finding that the Park was not a recreational trail for the purposes of s. 4(4)(f) and that the lesser duty of care established by s. 4(1) did not apply.
Decision of the trial judge
[30] The trial judge found that the Park had a network of marked trails and that, on the day that Ms. Schneider was injured, she and her family were cross-country skiing along the wooden boardwalk situated on one of these trails. He found, however, that the injury occurred when Ms. Schneider left the trail to ski down a berm and onto a frozen pond. According to the trial judge, s. 4(4)(f) of the Act did not apply to the facts of this case for two reasons. First, the concrete wall that Ms. Schneider collided with "was in the lake and not on a recreational trail": at para. 28. Second, in reliance on this court's decision in Moloney, he determined that "Coldstream Park was, in fact, much more than a recreational trail": at para. 28.
[31] In my view, the trial judge erred in so concluding. 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 trails, 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.
[32] Further, I do not view Moloney as having any application to the facts of this case. The situation in Moloney was quite different. In that case, the injury occurred on a portion of a fitness path that was also a paved roadway used regularly by cars for access to and egress from a parking lot. In those circumstances, it was reasonable for the court to conclude, at para. 2, that "the regular use of the roadway by vehicles precluded the application of s. 4 of the Act to this part of the fitness path".
[33] Nothing in the record before us suggests that the recreational trail being used by Ms. Schneider was used for any purpose other than recreation. For that matter, there is nothing in [page92 ]the record to indicate that the area of the Lake where the injury occurred was used at that time of year for any purpose at all.
[34] I also do not consider it of any relevance that, during the summer months, other portions of the Park were used for various recreational activities such as soccer and picnicking. In the winter the Park was essentially closed, in the sense that the appellant and the Township did not carry out any maintenance activities or have any presence in the Park. The fact that the appellant and the Township allowed, and in fact promoted, the use of the Park's recreational trails in winter for cross-country skiing is precisely what s. 4(4)(f) was intended to encourage. Ms. Schneider acknowledged that the reason she was on the property was to cross-country ski and that she had begun her trip on one of the marked recreational trails. It was when she ventured off the trail that she was injured.
[35] There is no suggestion that, in the winter months, the area where the injury occurred was designed for any particular use other than being a general area within which the trails used by cross-country skiers are located. The fact that other portions of the Park are the site for other types of activities, principally in the May to October period, does not change the nature of the area or the nature of the use where the injury occurred. In my view, the trial judge erred in concluding that s. 4(4)(f) did not apply in this case. 1(b) Did the trial judge err in finding that the appellant acted with reckless disregard for the safety of users of the park?
[36] Although the trial judge found that the lesser duty imposed by s. 4(1) of the Act did not apply, he nonetheless went on to find that, "[s]hould my conclusion be incorrect, I nevertheless find that s. 4(1) does not apply to dislodge from application to these facts the duty of care imposed by s. 3(1) of the Act on the occupier of Coldstream Park": at para. 29.
[37] It is not clear to me what the trial judge meant by s. 4(1) not dislodging the duty of care imposed by s. 3(1) of the Act. Where s. 4(1) applies, it does in fact dislodge the duty of care imposed by s. 3(1) and imposes on an occupier a lesser duty than the duty imposed in s. 3(1). Based on the analysis that followed this statement, however, I take the trial judge to have meant that the appellant did not meet the lesser duty imposed by s. 4(1) because it acted with reckless disregard of the presence of Ms. Schneider in the Park.
[38] In my view, the trial judge erred in his interpretation of s. 4(1) of the Act in two respects. First, s. 4(1) provides that the lesser duty of care set out in s. 4(1) displaces the duty of care [page93 ]provided in s. 3(1) "in respect of risks willingly assumed by the person who enters on the premises". Where s. 4(3) and s. 4(4) apply, the person is "deemed" to have assumed the risks. If, as found by the trial judge, the deeming sections do not apply, the court nonetheless must go on to determine, based on the evidence, whether the person has in fact willingly assumed the risks. This was not addressed by the trial judge and he made no finding in that regard. However, given my conclusion on the applicability of s. 4(4)(f), the failure to make the necessary finding is of no consequence.
[39] Second, the trial judge based his conclusion that the appellant acted with reckless disregard on the fact that the appellant knew or ought to have known that the concrete wall "would likely be covered by a blanket of snow in the winter and thus either partially or entirely hidden from view" and that the Park, including the Lake, "was regularly used by skaters and cross-country skiers during the winter months": at para. 30. Relying on Onyschuk v. Silver Harbour Acres Ltd. (1984), 1984 2030 (ON SC), 49 O.R. (2d) 762, [1984] O.J. No. 3438 (H.C.J.), the trial judge was of the view that the wall, hidden beneath snow, had become a "trap" and that the appellant "displayed a reckless disregard for the safety of the users of the park, in general and [Ms.] Schneider, in particular, in failing to provide some form of signage to mark the presence of the concrete wall": at para. 31.
[40] Applying the reasoning in Whitney v. University College of the Cariboo, [2004] B.C.J. No. 1766, 2004 BCSC 1110, the trial judge concluded that "once a non-natural object, such as the concrete wall, was constructed and introduced into the park, the occupier had a duty to keep this object from interfering with the normal and promoted use of the park": at para. 32. He further reasoned that "to adequately fulfill its obligation under s. 3(1) of the Act, an occupier is expected to exercise care against dangers that were sufficiently and normally foreseeable: Alchimowicz v. Schram, 1999 2655 (ON CA), [1999] O.J. No. 115 at p. 3 (Ont. C.A.) and Doyle v. Petrolia, 2005 16076 (ON CA), [2005] O.J. No. 1950 at p. 3 (Ont. C.A.)": at para. 33.
[41] In my view, the trial judge erred in his interpretation of the term "reckless disregard" as it is used in s. 4(1) of the Act. The trial judge's analysis of the appellant's failure to meet its duty of care is relatively short and no separate analysis of the s. 3(1) and s. 4(1) duties was carried out. His reference to s. 4(1) not dislodging the s. 3(1) duty of care and his reliance on the Whitney, Alchimowicz v. Schram, 1999 2655 (ON CA), [1999] O.J. No. 115, 116 O.A.C. 287 (C.A.) and Doyle v. Petrolia (Town), 2005 16076 (ON CA), [2005] O.J. No. 1950, 200 O.A.C. 271 (C.A.) decisions -- all s. 3(1) cases -- suggest [page94 ]that the trial judge may well have conflated the duties of care set out in s. 3(1) and s. 4(1). [See Note 2 below]
[42] As stated by this court in Cormack v. Mara (Township) (1989), 1989 4279 (ON CA), 68 O.R. (2d) 716, [1989] O.J. No. 647 (C.A.), at p. 724 O.R., acting with reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to [the person] present on his or her premises, not caring whether such damage or injury results".
[43] The trial judge's findings that the appellant knew or ought to have known that the concrete wall would likely be covered in snow and thus be hidden from view and that the park was regularly used by cross-country skiers may well provide a sufficient basis for concluding a breach of the s. 3(1) duty; however, they do not, in my view, provide a sufficient basis for concluding that the appellant acted "with reckless disregard" to the presence of users of the Park. To reach the level of "reckless disregard", more is required. There is no suggestion in the record that the appellant had specific knowledge that the concrete wall, depending on the snow conditions, would be hidden from view of cross-country skiers and thus pose a risk of injury to a skier choosing to leave the trail. The concrete wall had been in place for more than a decade, apparently without incident or suggestion that, in winter, it constituted a hazard or trap to users of the Park.
[44] Although the appellant knew that cross-country skiers used the Park -- it in fact encouraged such use -- this in no way constitutes proof that the appellant knew or ought to have known that cross-country skiers would occasionally travel off the marked trails to ski down the berm to the Lake in the manner done by Ms. Schneider and that doing so could lead to injury. In order to constitute recklessness, the court must find that the occupier knew or should have known that injury was likely. That finding was not made in this case. Further, there was no basis for making such a finding. There simply was no evidence that the appellant knew or ought to have known that cross-country skiers were likely to collide with the partially snow-covered wall in a manner such that a serious injury could or was likely to result. [page95 ]
[45] The situation in Onyschuk on which the trial judge relied is quite different. In that case, the defendant placed a cable across a part of a roadway that the defendant knew was frequently used by snowmobilers. The defendant also "knew the condition of [the] cable immediately prior to the accident, that it was approximately two feet from the ground at each end but it was covered by the snow in the centre for at least two metres" and that it "must have been obvious to anyone that this very accident . . . was not only a distinct possibility, but a probability . . .": at p. 767 O.R. In those circumstances, the trial judge properly concluded that the cable served no useful purpose and constituted a trap. Conclusion
[46] For these reasons, I would allow the appeal and set aside the trial judgment. As a result, I would also dismiss the cross-appeal and thus need not address the issues raised by the respondents in the cross-appeal. I would award costs on a partial indemnity basis to the appellant fixed at $18,000 inclusive of GST and disbursements.
Appeal allowed.
Notes
Note 1: This statute was continued in the consoliddated statutes of the same year, R.S.O. 1980, c. 322.
Note 2: Although Whitney is a case from the British Columbia Supreme Court, s. 3(1) of the Occupiers Liability Act, R.S.B.C. 1996, c. 337 is substantively the same as s. 3(1) of the Ontario Act.