Court File and Parties

COURT FILE NO.: C-2345-13 DATE: 20160823 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA FRANKLIN and CARL FRANKLIN Plaintiffs – and – THE CITY OF GREATER SUDBURY Defendant

Counsel: Peter Denton, counsel for the Plaintiffs. Peter J. Archambault, counsel for the Defendant.

HEARD: June 27, 28 and 29, 2016

BEFORE: R. D. Gordon, R. S. J.

Overview

[1] Sunday, December 18, 2011 started out as a day like any other for Mr. and Mrs. Franklin. At around 9:30 a.m. Mrs. Franklin took their two dogs for a walk, intending to attend church when she returned. She took the dogs to Delki Dozzi Park (“DDP”) a short distance from their home in the City of Greater Sudbury. She entered the park by walking over a grassy area that was partially covered by snow that had fallen the night before. From the grass she stepped onto the West Parking Lot (“WPL”) intending to cross and continue toward the baseball field. She extended her right foot onto the parking lot, lost her footing due to the presence of ice beneath the snow and went down. She suffered a severe fracture of her right ankle. The question before me is whether the owner and occupier of DDP, the Defendant herein, is liable for the damages she suffered.

Background Facts

Delki Dozzi Park

[2] DDP is a large multi-use park in the neighbourhood of Sudbury known as Gatchell. It contains a walking trail, soccer fields, a baseball diamond, a small community hall and outdoor skating rink, outdoor tennis courts, outdoor bocce courts, a playground, along with various open spaces and wooded areas.

[3] The park is unfenced, allowing for entry at any number of points along its perimeter. Parking is accommodated by two parking lots situate off Mary Street. The parking lot where Mrs. Franklin fell is near the western limit of DDP and typically provides parking for people using the bocce and tennis courts. The main parking lot is larger and located more centrally and is referred to herein as the “east parking lot”.

[4] The Defendant maintains the entire park during the spring, summer and fall. However, with the onset of winter and the consequent inability to use many of its features, the Defendant restricts its maintenance to the east parking lot, a service road to the west of that parking lot, the community hall and adjacent rink, a path leading from the service road easterly to the walking trail, and the walking trail itself. With respect to the east parking lot, service road, path and walking trail, winter maintenance consists of plowing snow and spreading sand to prevent slippery conditions.

[5] There is no winter maintenance of the soccer fields, baseball diamond, tennis courts, bocce courts, playground, WPL or any of the open or wooded areas. Notwithstanding this lack of maintenance, some people continue to use these parts of the park during the late fall and early winter to walk their dogs and slide on some of the hillier terrain. Children continue to use the playground until there is too much snow. There is nothing to prohibit any such use. The date upon which maintenance of these areas stops each year varies with the weather conditions. There is no notice posted to indicate that maintenance has ceased and no barricades erected to prevent entry.

The Accident

[6] Mrs. Franklin was 60 years of age when the accident took place. She lived on Clemow Avenue just south and west of DDP and frequented the park with her dogs. She typically followed the same route each time until the snow became too deep for her smaller dog. She would walk east on the north sidewalk of Mary Street, enter the park by walking north over a short hill of grass between the sidewalk and the WPL, crossing the parking lot, proceeding along the south side of the bocce and tennis courts and then walking north towards the baseball diamond. She would play with the dogs inside the fenced area of the baseball diamond and then return to her home by essentially the same route only in reverse order.

[7] The morning of December 18, 2011 was cold and crisp. It had been warmer the day before with rain that had turned to snow. Although snow covered the ground, it was a thin layer – not deep enough to fully cover the grass in the park. Clemow Avenue and Mary Street were a little slushy with sand and salt having been applied to them by the Defendant’s work crews. The WPL was covered with that same thin layer of snow which had not yet been disturbed when Mrs. Franklin stepped onto it.

[8] There are hills to the north and to the west of the WPL which itself is elevated from and slopes in places towards Mary Street. It is clear that at least some precipitation drains along the eastern and southern boundary of the WPL before finding its way down the east side of the parking entrance to Mary Street. In all probability this is what was happening on December 17 before the temperature became colder and the water froze. The resultant ice was hidden by the thin layer of snow that had fallen.

[9] Mrs. Franklin was a reasonably fit and active woman when the accident happened. She was wearing appropriate footwear for the winter conditions. She was not rushed or distracted. She simply stepped onto what she thought would be pavement covered by a thin layer of snow, only to discover to find that ice had formed on top of the pavement.

The Applicable Law

[10] The Defendant conceded that it was an occupant of Delki Dozzi Park and that the Occupiers’ Liability Act R.S.O. 1990, c. O.2 is engaged.

[11] Section 3(1) of the Act provides that 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 are reasonably safe while on the premises.

[12] Section 4 of the Act provides that with respect to risks willingly assumed by the person who enters the premises the occupier owes a lesser duty to not create a danger with the deliberate intent of doing harm or damage to the person and to not act with reckless disregard of the presence of the person. In this case, this lesser duty of care would only apply if Mrs. Franklin is considered to have entered a premises described as “recreational trails reasonably marked by notice as such”.

[13] Section 9(3) of the Act provides that the Negligence Act applies with respect to causes of action to which the Act applied.

The Issues

[14] Having regard to the background facts and law outlined above, the following issues require determination:

1. Did the accident happen on premises that would fall within the definition of recreational trails reasonably marked by notice as such?
2. If the answer to #1 is yes, did the Defendant act with reckless disregard of her presence?
3. If the answer to #1 is no, did the Defendant take such care as in all the circumstances of the case was reasonable to see that Mrs. Franklin would be reasonably safe while on the premises?
4. Was the Plaintiff negligent?
5. What are the damages of the Plaintiffs?

Issue #1

[15] At first blush it seems apparent that Mrs. Franklin did not fall on a recreational trail and that section 4 of the Act would have no application. However, The Defendant relies upon the case of Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 as authority for its position that the lesser standard of care set out in section 4 applies not just to the recreational trails themselves but to all of the associated off-trail property of the occupier as well.

[16] In Schneider, the Ontario Court of Appeal summarized the intent of section 4, and the manner in which it functions as follows:

[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 reckless disregard of the presence of the person or his or her property.

[31] … 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 trials, 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.

[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.

[17] I do not take these statements of the Court of Appeal to be quite as broad as suggested by the Defendant.

[18] Section 4(4)(f) provides to the occupier the benefit of the lesser duty of care in respect of users of recreational trails reasonably marked by notice as such. In Schneider the Court of Appeal interpreted this to include users of recreational trails reasonably marked by notice as such and users who, in the course of that use, venture off the trails. To suggest that the benefit of the lesser duty of care extends to persons who enter upon the property of the occupier but who have no intention of using the marked trails makes little sense.

[19] Take the example of a farmer who has a clearly marked recreational hiking trail passing through his property and who, on the same property, has his farmhouse. Surely a person who stops at the farmhouse for directions to town would not be subject to the same lesser duty of care as the person hiking the trail for recreation.

[20] As another example, consider Delki Dozzi Park which contains a marked recreational walking trail at its east end but also contains bocce courts several hundred meters to the west of the walking trail. The suggestion that a user of the bocce courts should be subject to the lesser duty of care because the park contains a walking trail strikes me as disingenuous. Similarly, someone like Mrs. Franklin who enters the park through a parking lot several hundred meters from the walking trail with no intention of traversing that walking trail should not be subject to the lesser duty of care applying to those who use the trail and choose to venture off of it.

[21] I am not satisfied that section 4 has any applicability to the facts of this case.

Issue #2

[22] As I have determined that the lesser duty of care does not apply, I need not determine if the Defendant acted with reckless disregard of Mrs. Franklin’s presence.

Issue #3

[23] Section 3(1) of the Act imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take such care as in all the circumstances of the case is reasonable. The trier of fact in every case must determine what standard of care is reasonable and whether it has been met. [See Waldick et al v. Malcolm et al, [1989] O.J. No. 1970 Ont. C. A.; affirmed in Waldick v. Malcolm, [1991] S.C.J. No. 55].

[24] The Plaintiffs allege and the Defendant acknowledges that there was no winter maintenance done of the WPL. Accordingly, no steps were taken to make the premises reasonably safe for persons entering upon them in the winter season.

[25] The Defendant argues that in the circumstances of this case its decision to cease maintenance in the late fall and winter was reasonable because the WPL was used primarily to access the bocce and tennis courts which had been closed for the season. It argues that it was not reasonably foreseeable that the west parking lot would be used when the bocce and tennis courts were closed and that the harm to Mrs. Franklin was therefore not reasonably foreseeable.

[26] If I were satisfied that the use of the WPL was somehow restricted to those who use the bocce and tennis courts I would have less difficulty with the position taken by the Defendant. However, the west parking lot can be and was used to access other portions of the park including the children’s playground, soccer fields, the baseball diamond and both open and wooded areas at the park’s west end. Notwithstanding that the bocce and tennis courts may have closed for the winter season, these other parts of the park continued to be used by people for various purposes, including walking their dogs, until the snow became so deep as to naturally prohibit those uses. While these other parts of the park remained in use by the public, it was reasonably foreseeable that members of the public would cross the WPL to gain access to them.

[27] There will come a point each winter when enough snow has fallen that a reasonable observer would conclude that the western portion of the park is no longer in use and that the parking lot is not being maintained. At that point, which will vary from year to year depending on weather conditions, the City may reasonably cease all maintenance of the WPL on the basis that there is no good reason to believe that anybody will use it and that its closure will be reasonably apparent to all. Until that point, it seems to me incumbent upon the Defendant to do one of three things: (1) Provide a reasonable level of winter maintenance to the parking lot; (2) Post notice that maintenance has ceased, that hazardous snow and ice conditions may exist and that users enter at their own risk; or (3) Block access to the parking lot. None of these actions would be particularly expensive or time-consuming.

[28] On December 18, 2011 although it might have been abundantly clear that the bocce and tennis courts were closed for the season, it would not have been clear to a reasonable observer that winter conditions had rendered the western portion of the park unusable. Because there had been so little snow, it would not have been clear to the reasonable observer that maintenance of the WPL had ceased. In my view it was entirely foreseeable that persons may continue to access the park and that to do so may cross or enter upon the west parking lot. As such, it was the responsibility of the Defendant to maintain the parking lot by plowing and sanding it, adequately warning users, or preventing its use.

[29] Having done none of these things, I find that the City did not take reasonable care to protect users of the WPL from foreseeable harm and that injury to Mrs. Franklin resulted.

Issue #4

[30] As I indicated earlier, the Plaintiff was wearing appropriate footwear and was not rushed or distracted when she fell. However, she had given no thought to the possibility of the parking lot having become slippery notwithstanding that it had rained the day before, then become much colder and then snowed. She testified that the roads were a bit slushy and had sand and salt on them and it is reasonable to infer that this was done because they would otherwise be slippery; and yet she stepped without caution onto an unsalted and unsanded surface that was lightly covered by snow. I acknowledge her testimony that her dogs had preceded her onto the parking lot without incident however I heard no evidence of the length of their leads and whether it would have been reasonable for her to rely on that as an indication that traction was reasonable.

[31] In my view, given the weather conditions that preceded her walk and given the state of the roads over which she had passed Mrs. Franklin ought to have exercised more caution stepping onto the obviously untreated parking lot. At the very least, she ought to have stepped onto the parking lot with particular caution to ensure that the surface was not slippery. Had she done so, there is a good chance this accident would have been avoided.

[32] In the circumstance an appropriate apportionment of liability is 60% to the Defendant and 40% to Mrs. Franklin.

Issue #5

[33] The parties agreed on almost all of the damages. The only issue left for determination by me was Mrs. Franklin’s claim for loss of income following her retirement.

[34] Following the accident, Mrs. Franklin was off work for about six months. She returned to work in July of 2012 and continued to work until she retired in June of 2013. She was eligible for retirement with full pension at that time but testified that she had not intended to retire until age 65 and had only done so in 2013 because of the pain and discomfort caused by her injury. The parties agreed that had she continued to work until age 65 she would have earned an additional $50,000.

[35] The question for my determination is whether that loss was the result of her injuries.

[36] The evidence of both Mr. and Mrs. Franklin was that once Mrs. Franklin became eligible for her full pension they determined that, having regard to the pain and discomfort caused by work and the modest increase in income from work, it was not worth it to have her continue.

[37] The evidence was not that she was unable to work. The evidence was not that she could not be expected to work. The evidence was that a decision was made to retire notwithstanding her ability to continue to work because the pain was not worth the gain.

[38] Mrs. Franklin had a duty to mitigate her damages. That is, she was expected to take reasonable steps to minimize the damages arising from her injuries. In my view she did not do so. I am not satisfied that her injuries prevented her from working. In fact, that is belied by her return to work between July of 2012 and June of 2013. It follows that I would not award her any damages relative to her early retirement.

Conclusion

[39] The Defendant is found to have been negligent. The Plaintiff is found to have been contributorily negligent. Responsibility for the Plaintiffs’ damages are determined to be 60% to The City of Greater Sudbury and 40% to Linda Franklin. This ratio is to be applied to the damages agreed upon by the parties and the results embodied in the formal judgment to be taken out.

[40] If the parties are unable to agree on costs they may make written submissions to me, not to exceed five double-spaced pages plus attachments each, within 45 days.

R. D. GORDON, R. S. J. Released: August 23, 2016