Court File and Parties
COURT FILE NO.: 2842/15 DATE: 20180925 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: David T. Turner, Plaintiff – and – Town of Oakville, Defendant
COUNSEL: W. Wolfe and W. Lim, for the Plaintiff S. Persaud, for the Defendant
HEARD: September 24, 2018
MILLER J.
Reasons for Judgment
[1] David Turner claims that the Town of Oakville acted with reckless disregard to his presence pursuant to the Occupiers’ Liability Act in respect of a bicycle trail maintained by the Town. Mr. Turner fell off his bicycle May 30, 2014 while riding on the trail, breaking his arm and sustaining other injuries. Mr. Turner claims that the Town of Oakville is completely liable for his resulting injuries.
[2] The parties have settled the issue of damages. The only issue for the trial is liability.
[3] The Town of Oakville takes the position that the Plaintiff has not proven a reckless disregard for the safety of trail users, or causation and there is no basis for liability. In the alternative they argue that Mr. Turner should be found to have been contributorily negligent to a degree that he is substantially if not entirely responsible for his mishap.
Agreed Statement of Fact
[4] The parties agreed to the following facts for the purposes of the Trial:
The subject bicycle accident (“the accident”) was a single bicycle accident that occurred on Saturday, May 30, 2014, between 1:00 and 2:30 p.m. while the Plaintiff, David Turner was cycling southbound on the Morrison Valley West Bank Trail.
The Defendant, The Corporation of the Town of Oakville, is the entity with jurisdiction over municipal recreational trails in the Town including the location of the accident on the Morrison Valley West Bank Trail (“the trail”).
There was no precipitation that day and visibility was clear. Weather conditions were not a factor in the accident.
The Plaintiff was born on July 6, 1958 and was 55 years old at the time of the accident.
Prior to the accident and earlier that same day, the Plaintiff cycled northbound on the trail from his apartment at 1360 Whiteoaks Boulevard, apartment 1503 to the Goodlife Fitness located near the intersection of Trafalgar Drive and Postridge Drive in Oakville, Ontario.
On his way to the Goodlife the Plaintiff observed the portion of the trail that led to where the accident occurred but did not cycle over it.
The Plaintiff completed a 60 to 90 minute weight training workout at the Goodlife gym.
At the time of the accident, the Plaintiff was wearing shorts and a t-shirt and had a gym bag slung across his shoulder that contained a change of clothes and his bicycle lock.
The accident occurred when the Plaintiff was cycling southbound on the return from the Goodlife on his way to his apartment. He entered the trail system near Dalebrook Drive. This was the first time the Plaintiff had been on this portion of the trail. He cycled on the trail and approached a staggered access control gate located across the trail. He did not use the gate and rode around the left side of the gate and trail. After coming back on the paved trail, he noticed a slope down to a wooden fence which requires riders to turn right or left. The distance down the slope from the last staggered access control gate to the wood fence is 74 feet.
The plaintiff coasted on the trail. He applied his brakes and fell off his bike landing on his right side.
The trail was paved and was in good condition. The condition of the trail itself was not a factor in the accident.
There were no posted signs before the access gates warning of a decline in the trail.
There were no signs present in the 20 meters approaching the bicycle control gate on the date of the accident. On June 9, 2017 the Plaintiff complained about the lack of signage via email to the Town and asking if corrective measures would be taken. On June 11, 2014, 12 days post-accident, the Town installed a yellow sign with a diagram stating “Steep Slope Ahead Cyclists Must Dismount” was installed in front of the access gates.
In the 25 years prior to the accident, there were no other accidents in the portion of the trail where the accident occurred to the knowledge of the Defendant.
In the 25 years prior to the accident, the Town does not have a record of receiving any complaints regarding the portion of the trail where the accident occurred.
The Plaintiff did not consume any alcohol or illicit drugs in the 24 hours prior to the accident. Alcohol or illicit drug use were not factors in the accident.
The Parties settled general damages, special damages, the OHIP subrogated claim and pre-judgment interest to the completion of trial for $45,000.00 all-inclusive.
Testimony of David Turner
[5] David Turner testified that he had had the bicycle he was riding for approximately three years. He described as an on road/off road bicycle with knobby tires. He testified that it was in good mechanical condition.
[6] While he had cycled the Morrison Valley trail system about 10 times previously that spring, he had never taken the branch of the trail that is the subject of this litigation. He testified that he saw it from the trail he usually took, and decided that day to check it out. He testified that he knew that it led into the valley.
[7] Mr. Turner testified that he saw the gate from some distance away. He testified that he approached it cautiously; not pedalling but coasting. He testified that from the angle he was approaching it was not apparent to him that he could pass through the staggered gates which he estimated were three feet apart. He saw a well-worn path to the left of the gate which suggested to him a “precedent” for going off the asphalt trail and around the gate.
[8] Mr. Turner testified that he stopped looking ahead on the trail and was looking down as he cycled over the uneven ground. He also testified that his view of the trail ahead was obscured by foliage to the side of the trail. When he did look up and ahead he was surprised to see a steep decline ending in a wooden fence. The trail at that spot went left or right at a 90 degree angle. Mr. Turner testified that the decline immediately after the gate was about a 20% “camber” followed by a decline at about 40-50%.
[9] Mr. Turner testified that to that point he had continued coasting on the bicycle with his hands on the brakes, but when he saw what was ahead he braked hard and flew over the handlebars of his bicycle to the right hand side. He agreed that he may have been using his front brake more than the back brake. He testified that his first point of impact was his right elbow, followed by his knee and shoulder. He believes he rolled twice before coming to rest as after he got his wind back he got up assisted by grabbing the wooden fence.
[10] Mr. Turner was able to put the chain back on his bicycle and ride home. The bicycle was not otherwise damaged except for a scrape on the right brake. On June 9, 2014 he wrote an email to the Town of Oakville in which he described his fall and attributed it to “poor signage” and asked to be informed if “corrective measures” were to be taken.
[11] Mr. Turner testified that the gates, based on where he had seen similar gates before, appeared to him to be to block vehicles or for trail management access as some are locked but could swing partway open. Mr. Turner testified that he had seen similar gates on the east side of the trail system on a “very very steep hill near the valley” and another one near the old City Hall. Mr. Turner testified that it was his recollection that well in advance of the gate near the old City Hall there was a sign with a picture of a bike and the words “steep drop ahead”. He testified that the absence of such a sign before the gate which he rode around meant that he had insufficient notice of the steep decline beyond the gate.
Testimony of Thomas Mulvale
[12] Thomas Mulvale is the current Senior Supervisor of Parks Operations for the Town of Oakville and has been since 2015. His supervisory duties include the Morrison Valley Trail in that he oversees the supervisor of technical services who in turn oversees maintenance of the trails. He described the Morrison Valley Trail system in the northeast quadrant of Oakville.
[13] Mr. Mulvale testified that an engineering firm designed the trail system taking into account path and safety mitigations, where culverts and where asphalt portions would be. He testified that the engineering firm would tell them where to put the cycling control gates and guardrails. He testified that the Town does the signage, and he described that various types and locations of signs on the trail system.
[14] Mr. Mulvale testified that the Town does annual safety audits and inspection of trails looking for downed trees, washouts, heaved culverts, and ensuring that signage and gates are in their in proper position as well as whether any repairs are needed. He testified that they try to keep vegetation pruned back two feet off trail and trim low hanging branches so the trails are safe to go on. This work is done twice per year, whereas other maintenance is done about once a month.
[15] Mr. Mulvale testified that after any significant storm there would be inspections of the trails for any washouts. Inspection and repairs are done by employees using ATVs. The cycle control gates are unlocked and swung open to permit trail access by the ATVs to those portions of the trail normally blocked by the cycle control gates. He testified that most people dismount their bicycles when encountering a cycle control gate.
[16] Mr. Mulvale testified that the “steep slope, cyclist must dismount” sign which was erected before the gates at Mr. Turner’s fall location on June 11, 2014 was put there in response to Mr. Turner’s request. Mr. Mulvale testified that there are six other cycle control gates at three locations within approximately 100m of the subject gate. Each of those hills controlled by the gates have one staggered gate at the top and another partway down. None have a “steep slope” sign before the gates.
[17] Mr. Mulvale testified that there are other gate locations where it is apparent that people go around rather than through the gates. He testified that the Town tries to remediate that by planting vegetation on the alternate path or placing fencing to block it but neither of these solutions lasts long without someone ripping up the vegetation or taking down the fencing.
[18] Mr. Mulvale agreed that anyone at the subject access point before May 30, 2014 would appreciate, because of the well-worn path, that people are riding and/or walking around the gate. He testified that the fence at the bottom of the subject decline extends approximately 10m in either direction and he agreed the fence was there to protect by alerting people that there is a ravine beyond the fence.
[19] Mr. Mulvale also agreed with the contents of a report by Paul Green, retained on behalf of the Plaintiff, that the distance between the staggered gates was 6.5 feet and that the distance between the subject gate and the wooden fence at the bottom of the decline was 74 feet. He also agreed that according to a topographic map the elevation differential over that distance was 4-5 metres, creating a grade of approximately 20%.
Law
[20] During the trial counsel for the Town objected to evidence from Mr. Turner of the current state of the trail. The Ontario Court of Appeal in Sandhu (Litigation Guardian of) v. Wellington Place Apartments, 2008 ONCA 215, at paragraphs 51-64 addressed the admissibility of evidence of remedial measures taken by a defendant subsequent to the incident which is the subject of the litigation. At paragraph 60 the Court indicated:
Where a plaintiff offers evidence of subsequent remedial measures, the trial judge must balance the probative value of that evidence against its prejudicial effect. The prejudicial effect includes whatever weight the trial judge might give to the policy argument for exclusion, but also includes considerations such as whether the evidence will unduly lengthen the trial or may be misused by the jury. In considering the balance between probative value and prejudicial effect, the trial judge can take into account whether limiting instructions to the jury can mitigate any prejudice.
[21] In that case the Court found that the evidence of remedial measures was relevant to the issues of reasonable standard and reasonable care and its probative value outweighed the potential prejudice that it might be improperly considered an admission of liability. Its probative value also outweighed the potential prejudice, which the Court found to be limited, based on the policy argument premised on the theory that defendants would be discouraged from taking necessary remedial measures if they knew that these measures would be admitted against them at trial as an admission of liability.
[22] Balancing the probative value against potential prejudice I permitted the Plaintiff to introduce evidence of steps taken by the Town following the incident. This included agreed evidence that on June 11, 2014 the Town had erected a sign warning of a steep hill and that “cyclists must dismount” and evidence that when Mr. Turner visited the location of the incident in September 2018 he perceived that there was less foliage at the sides of the trail than there had been May 30, 2014.
[23] With respect to liability, the parties agree as to the applicable legal principles and largely agree on the case law to be applied.
[24] Liability for personal injuries allegedly sustained while travelling on a recreational trail is governed exclusively by the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
[25] The relevant provisions of the Occupiers’ Liability Act are 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.
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.
4 (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),
4 (4) The premises referred to in subsection (3) are,
(f) recreational trails reasonably marked by notice as such.
[26] The trail at issue is appropriately classified under paragraph 4(4)(f) of the Occupiers’ Liability Act and, as such, the appropriate care owed to users of recreational trails, is that described in subsection 4(1) of the Occupiers’ Liability Act.
[27] The onus of proof rests with the Plaintiff to prove that the Occupier breached his or her duty as prescribed by s. 4 of the Occupiers’ Liability Act. Tondat v. Hudson’s Bay Company, 2018 ONCA 302, at para. 6
[28] Where a person enters a property that is generally used for recreational activity and the property consists of a recreational trail reasonably marked as such; and that person leaves the recreational trail but remains on the property while continuously engaged in a recreational activity, the lower standard of care set out in s. 4(1) of the Occupiers’ Liability Act also applies. Pierce v. Hamilton (City), 2013 ONSC 6485, at para. 34
[29] The Court of Appeal in Cormack v. Mara (Township), at para. 23 (leave to appeal refused, [1989] S.C.C.A. No. 265) held that the phrase “acting with reckless disregard” pursuant to s. 4(1) of the Occupiers’ Liability Act 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.”
[30] This test in Cormack was more recently affirmed in Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 (leave to appeal refused, [2009] S.C.C.A. No. 445).
[31] Counsel for the Plaintiff relies on Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681, at para 26 (affirmed at 2012 ONCA 98), in which Whitten J. described the objective standard as follows:
…what he or she (the occupier) should recognize as something likely to cause damage. What is being referenced is something beyond what can be assumed by all of us, as ordinary people know, something unusual, something inherently harmful or dangerous. Whatever this danger it is clearly contextual. It may not be obvious. It may be hidden or concealed. It may contain an element of surprise for the user such that response times are diminished, if not eliminated. It may be that the user cannot extricate himself or herself from the situation. It may be of such a nature that, as some jurists have described (i.e.: Justice Potts in Onyschuk v. Silver Harbour Acres Ltd. (1984), 49 O.R. (2d) 762)), it is a "trap". The failure of the occupier to address a known danger of this magnitude would constitute "reckless disregard".
[32] Counsel for the Town relies on the same case, where at paragraph 130, Whitten J. found that:
With respect to the signage and traffic control devices, it seems that the City could improve the signage in this area given the potential hazard that exists. However, this need for improvement does not translate into "a reckless disregard" as the City had obviously addressed the possible danger and taken steps to communicate that to users/cyclists.
[33] Counsel for the Plaintiff relies on Campbell v. Municipal Corporation of the County of Bruce, 2015 ONSC 230, at paragraphs 262-281; (affirmed at 2016 ONCA 371; leave to appeal refused [2016] S.C.C.A. No. 325); Herbert at paragraphs 122-130 and Cotnam v. National Capital Commission, 2014 ONSC 3614, at paragraph 14 as examples of cases that have successfully defended allegations of recklessly disregarding the presence of a person with respect to signage because they involved signage that spoke to the nature of the hazard and potential consequences from the hazard. In those cases, the signage went further than simply indicating that there was a potential hazard ahead.
[34] Counsel for the Defendant also relies on Cotnam at paragraph 14 wherein the Divisional Court held that if it were to be found that the defendant used the wrong signage it would not provide sufficient basis for concluding that the defendant acted with reckless disregard.
[35] Counsel for the Plaintiff also relies on Onyschuk v. Silver Harbour Acres Ltd., at paragraph 30, and Labanowicz v. Fort Erie (Town), 2017 ONSC 630, at paragraphs 62 and 63 (affirmed at 2018 ONCA 343) in support of his submission that if the cost, and ease of implementing a safety measure is minimal, and the measure was not implemented, omitting the measure would contribute to raising the conduct of the Defendant to the level of reckless disregard.
[36] In respect of causation, counsel for the Plaintiff has cited Athey v. Leonati, [1996] 3 SCR 458 as the leading case on causation in which the Supreme Court of Canada reaffirmed the “but for” test, proven on a balance of probabilities, as the presumptive test for determining causation.
[37] Counsel for the Plaintiff indicates that the Supreme Court of Canada has more recently summarized the legal test for causation in both Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 and Clements (Litigation Guardian of) v. Clements, 2012 SCC 32. As stated in Clements at paragraph 8:
The test for showing causation is the "but for" test. The Plaintiff must show on a balance of probabilities that "but for" the Defendant's negligent act, the injury would not have occurred. Inherent in the phrase "but for" is the requirement that the Defendant's negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the Defendant's negligence. This is a factual inquiry. If the Plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the Defendant fails.
[38] And, as noted in Herbert at paragraph 28:
[T]he "but for" test does not require that the Defendant's negligence be the only condition necessary to cause the Plaintiff's injury. There will always in fact be other necessary causes that were conditions of the injury occurring. Defendants whose acts were necessary parts of the causal sequence will be fully liable for the injuries. Where the other causes were non-tortious, the Defendants will bear the entire burden. Where the other causes were tortious, there can be apportionment between Defendants, although in most jurisdictions each Defendant will remain fully liable to the Plaintiff. Where the other cause was the Plaintiff's own fault, the rules of contributory negligence will apply (Klar at 393-394)
[39] Counsel for the Plaintiff submits that where the “but for” test is unworkable due to the unique factual circumstances, the “material contribution” test will apply.
[40] The Supreme Court of Canada in Hanke v. Resurfice Corp., [2007] 1 SCR 333, 2007 SCC 7, at paragraph 25 clarified when the “but for” test can be abandoned in favour of the “material contribution” test. Two requirements must be met for the “material contribution” test to be used:
First, it must be impossible for the Plaintiff to prove that the Defendant's negligence caused the Plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the Plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the Defendant breached a duty of care owed to the Plaintiff, thereby exposing the Plaintiff to an unreasonable risk of injury, and the Plaintiff must have suffered that form of injury. In other words, the Plaintiff's injury must fall within the ambit of the risk created by the Defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.
[41] As noted in B.S.A Investors Ltd v. DSB, 2007 BCCA 247, at paragraph 39 (leave to appeal refused [2007] S.C.C.A. No. 357), it should be emphasized that according to the first criterion set out in Resurfice it must be "impossible" for the Plaintiff to lead evidence proving causation, not "merely difficult" or "understandably difficult".
[42] As per section one of the Negligence Act, R.S.O. 1990, c. N.1, where damages have been caused by fault or neglect of two or more persons, they are jointly and severally liable. Therefore, it is not necessary to show that the Defendant is solely or entirely at fault.
[43] Counsel for the Defendant does not take issue with this statement of law on causation but submits that the Plaintiff has not met its case in this regard. Counsel for the Defendant submits that with respect to the behaviour of the Plaintiff, the Town is not required to take into account cyclists who keep their heads down and do not look ahead while approaching bicycle speed control gates, does not heed the warning that the gates pose, chooses not to use the gates but go around them and off the trail, continue to not look up until after passing the gates and once passing the gates looks up, startles themselves and over brakes causing them to fall.
[44] In the alternative counsel for the Defendant submits that Mr. Turner was substantially if not entirely contributorily negligent. They do not take issue with the following statement of law on contributory negligence set out by counsel for the Plaintiff.
[45] The onus of establishing contributory negligence rests with the Defendant Town who must prove that the Plaintiff did not act in his own interest by taking reasonable care, thereby contributing to his own injury.
[46] The Supreme Court of Canada, in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 SCR 1210 followed the line of reasoning in Nance v. British Columbia Electric Railway Co. Ltd., [1951] AC 601 (JCPC) in confirming that the defense of contributory negligence does not depend on a duty of care owed to the injured party.
[47] The test for contributory negligence, as accepted by the Supreme Court of Canada in Bow Valley Husky, was summarized by Denning L.J. in Jones v. Livox Quarries, [1952] 2 QB 608 (Eng CA), at p. 615:
Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.
[48] More recently, contributory negligence was addressed in the context of recreational biking in a park in the Campbell decision.
Analysis
[49] Counsel for the Plaintiff submits that where the occupier does provide a warning or indicator of a hazard, the warning must provide sufficient details of the hazard to provide any individual on the premises adequate information to make a decision on how to either properly proceed through the hazard, or so that an individual can make an informed decision to avoid the hazard altogether. He submits that in this case, where there is evidence that the Town would have been aware, by the presence of the side trail, that their cycle control gate was not being effective in slowing down cyclists, the lack of appropriate signage or warning of the steep hill on the trail is an omission on the part of the Town that amounts to the reckless disregard of the Plaintiff and is therefore a breach of the applicable standard of care.
[50] Mr. Turner’s testimony would lead to an inference that the gate above the location of his fall itself gave him no warning that there was a steep hill beyond the gate. This does not accord with his testimony that in all other locations on the trail system where he had observed such gates they were above and partway down steep hills.
[51] Mr. Turner testified that he knew before heading down it that the trail he had chosen would lead into the valley. He agreed that he knew that the gates signified that. He also agreed that the fall was caused by his sudden reaction, by braking hard, upon seeing the steep decline with the wooden fence at its end.
[52] It is clear from the photographs introduced into evidence and the testimony of both Mr. Mulvale and Mr. Turner himself that had Mr. Turner remained on the asphalt path and passed through the staggered gates rather than veering off around them, the steep decline and the wooden fence at its end would have been visible before Mr. Turner even reached the gates. Further, had Mr. Turner passed through the gates, he would not have been proceeding at a pace where the sudden application of brakes would have been necessary to slow him to a safe speed.
[53] I find that anyone approaching the gates on the asphalt path would have ample notice of the steep decline beyond the gates by seeing it. The gates further alerted trail users to a hazard ahead. I do not accept Mr. Turner’s evidence that the gate indicated to him only that the trail was blocked for motorized vehicles. This testimony makes no sense given the location of the gates well into the trail system and not proximate to any street access to the trail. I find that it would be apparent to any trail user that the gates marked a steep decline and were designed to slow the speed at which cyclist would approach the hill. Mr. Turner made a deliberate choice to “take the path of least resistance” by avoiding the gates altogether.
[54] It is clear on the evidence that the Town did take and was taking steps to ensure the safety of trail users. It employed an engineering firm to design the trail and followed advice with respect to the placement of the bicycle control gates. It performed regular inspections of the trail and made repairs and did other maintenance, including the cutting back of foliage where it might pose a hazard. Evidence that these steps were taken support the Town’s position that their conduct with respect to this trail and hill did not amount to a reckless disregard for the safety of trail users.
[55] I have further considered that the Town, in response to Mr. Turner’s request on June 9, 2014, installed a “steep hill” sign at this location within two days and at minimal cost. I find, the comments made by Whitten J. in Herbert (cited above) are apt: “[while the Defendant] could improve the signage in this area given the potential hazard that exists. However, this need for improvement does not translate into "a reckless disregard" as the City had obviously addressed the possible danger and taken steps to communicate that to users/cyclists.”
[56] I have considered that it would have been obvious to Town employees inspecting the trail that people were going around the bicycle control gate at this location, but I do not find that the failure of the Town to block off the side path or post signage warning of the steep hill ahead amounts to a reckless disregard by the Town of Oakville for the safety of the trail users, or of David Turner, in particular.
[57] The action is dismissed.
MILLER J. Released: September 25, 2018