Paul Battin

The defendant sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment in a personal injury action arising from a bicycle accident on a recreational trail.

The motion judge had questioned the applicability of section 4 of the Occupiers Liability Act and suggested the statutory assumption of risk for recreational trails created a rebuttable presumption.

The court found this reasoning conflicted with appellate authority holding that recreational trail users are deemed to have willingly assumed risks unless the occupier acts with reckless disregard.

The decision also raised concerns about an unduly restrictive approach to summary judgment in simplified procedure actions.

Leave to appeal was granted because there was good reason to doubt the correctness of the order and the issues were of broader importance.

Following the dismissal of the plaintiff’s claim, the court determined the appropriate costs award.

The successful defendants sought $12,944.96 in costs on a partial indemnity basis, while the plaintiff argued that success was divided because part of the claim had been found premature and sought a reduced award.

The court held that the defendants were the successful party and that the general rule awarding costs to the successful party applied.

The hourly rates and time expended by defence counsel were found to be reasonable.

Costs were fixed in favour of the defendants.

The defendants moved under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the plaintiff’s defamation action arising from allegations made during his service as a Canadian Armed Forces officer.

The court held that the claim arose directly from the employment relationship and should first be addressed through the military grievance process under the National Defence Act framework.

Because that statutory grievance procedure was capable of addressing the underlying issues, the civil action constituted an abuse of process and was premature.

The court also held that certain pleaded claims relating to publications and broadcasts were barred due to non-compliance with the notice requirements of the Libel and Slander Act.

The action was dismissed, with alternative findings that it could be stayed pending determination of entitlement to compensation for a service-related injury and that specified paragraphs of the pleading were struck.