COURT FILE NO.: CV-18-75945 DATE: 2023/07/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DARLENE BARRY Plaintiff – and – HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO and ABC INC. Defendants

Counsel: Brenda Hollingsworth and Gillian Mactaggart, for the Plaintiff Martin Forget and Ainsley Shannon, for the Defendant His Majesty the King in Right of the Province of Ontario

HEARD: February 13, 14, 15, 16, 17, 21, 22, and 23, 2023

REASONS FOR JUDGMENT

ryan bell j.

Overview

[1] This is an occupier’s liability case. The trial proceeded on the issue of liability only.

[2] On August 3, 2016, Darlene Barry was playing with her dog at the Rideau River Provincial Park campground when, she alleges, she tripped over the hidden retaining wall along the riverbank. Ms. Barry fell into the river crushing her right leg.

[3] There is no dispute that the Crown, as the occupier of the Park, owed Ms. Barry a duty of care under the Occupiers’ Liability Act (“OLA”). Ms. Barry alleges that the Crown failed to discharge its duty because there was a trip hazard, the trip hazard was concealed by overgrown grass, the Park had no inspection system, and the Park failed to provide warnings of the trip hazard.

[4] The Crown’s response is threefold. First, the Crown says that Ms. Barry’s action is statute-barred because she did not provide notice within 10 days as required by s. 7(3) of the Proceedings Against the Crown Act (“PACA”). Second, Ms. Barry has failed to prove on a balance of probabilities that she tripped on the retaining wall as alleged. Third, Ms. Barry has not proven that the Crown, as the occupier of the Park, acted unreasonably.

[5] For the following reasons, I dismiss the action with costs to the Crown. Ms. Barry failed to provide notice to the Crown within 10 days as required by s. 7(3) of the PACA. Her claim is therefore statute-barred. In addition, Ms. Barry has not proven that she tripped on the retaining wall and she has not proven that the Crown, as occupier of the Park, acted unreasonably, contrary to s. 3(1) of the OLA.

Background facts

[6] Ms. Barry and her husband booked a stay in the Park from August 2 to 14, 2016. On August 3, 2016, around lunchtime, Ms. Barry left her campsite and walked with her dog to a grassy common use area of the campground along the Rideau River. When she arrived at the waterfront area, Ms. Barry sat for a period of time on a park bench, set back from the water’s edge.

[7] Ms. Barry began playing fetch with her dog. She testified that she was standing about eight feet back from the water’s edge and threw the dog’s toy into the river for the dog to retrieve. On the third throw, the dog retrieved the toy but dropped it about six or eight inches from the water’s edge. Ms. Barry testified that as she approached the toy to pick it up, her right foot hit something solid and she was propelled forward into the river, in a motion akin to a somersault. She testified that the lip of the retaining wall was concealed by overgrown grass and other foliage along the water’s edge.

[8] No witnesses to Ms. Barry’s fall testified at trial. Two women who came on the scene shortly after the incident notified Ms. Barry’s husband about her fall. Mr. Grosset, a provincial park warden, arrived within a few minutes. Mr. Grosset testified that he spoke with Ms. Barry and asked if she required medical assistance. Mr. Grosset guided first responders and medical personnel to assist her and Mr. Grosset stayed with her for the hour it took for her to be removed from the water. Ms. Barry was taken by ambulance to Kemptville Hospital. From there, she was transferred to the Ottawa General Hospital, where she was attended to by an orthopaedic surgeon.

[9] After Ms. Barry had been taken to the hospital, Mr. Grosset spoke to two individuals who claimed to have witnessed the incident. Mr. Grosset also spoke to Ms. Barry’s husband, Bob Barry. Mr. Grosset prepared a park complaint and occurrence report. Ms. Grenier, the assistant park supervisor at the time, described the park complaint and occurrence report as a “catchall for everything that happens in the park”, including a natural event.

[10] Mr. Grosset was also involved in the preparation of an incident report which, he testified, was faxed to the Ministry of Labour.

[11] On August 6, 2016, Mr. Grosset followed up with Mr. Barry who reported on Ms. Barry’s condition.

[12] On August 9, 2016, a representative from the Ministry of Labour attended at the Park. Mr. Grosset and Ms. Grenier testified that the purpose of the Ministry representative’s attendance was to advise if there was a hazard and if so, to make any necessary orders to rectify the hazard. No hazard was observed. Following the inspection, the Ministry ordered that the Park release the incident report to its offices. The Crown complied with this order.

[13] On January 25, 2017, Ms. Barry, through her counsel, notified the Crown of her intention to commence litigation in respect of the incident.

Preliminary evidentiary issues

(i) Mr. Barry’s video statement

[14] Mr. Barry was scheduled to be a witness at trial. Sadly, and unexpectedly, he passed away the week before the trial was scheduled to commence. Prior to his passing, Mr. Barry met with Ms. Barry’s counsel to prepare his testimony. The session, consisting of counsel’s questions and Mr. Barry’s answers, akin to an examination in chief, was videotaped. At trial, Ms. Barry sought to have Mr. Barry’s video statement admitted into evidence. After hearing submissions, I ruled that the video statement would be admitted in evidence, subject to the Crown’s right to object to specific portions of the statement, with reasons to follow. These are my reasons.

[15] Hearsay evidence is, of course, presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. Even if it does not, the evidence may still be admitted if, under the principled analysis, there are sufficient indicia of reliability and necessity. In this case, necessity was conceded. The parties joined issue on the reliability requirement.

[16] In assessing whether the evidence is sufficiently reliable to be admitted as evidence, the issue is one of threshold reliability, with the trial judge acting as gatekeeper. Paciocco, David and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto, Ont.: Irwin Law Inc., 2020), at p. 162. One way to meet the reliability requirement is to show there is no real concern about whether the statement is true or not because of the circumstances in which the statement came about: R. v. Khelawon, at para. 62. As the Supreme Court of Canada noted in Khelawon, at para. 86, in R. v. B. (K.G.), the Court held that a prior inconsistent statement is sufficiently reliable for substantive admission if it is made in circumstances that are comparable to the giving of in-court testimony.

[17] Mr. Barry was a retired RCMP officer. He had experience testifying in court. The video statement was made in preparation for his examination in chief, with the questions posed to him being open-ended.

[18] The criteria of necessity and reliability work “in tandem”; that is, “if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed”: R. v. Baldree, at para. 72; B. (K.G.), at para. 86. The opposite is also true. In this case, with necessity being conceded, and having regard to the circumstances in which the statement came about, I was satisfied that Mr. Barry’s video statement should be admitted in evidence, subject to specific objections.

[19] During the course of trial, the Crown objected to five segments of the video statement. I gave an oral ruling on the objections which I will only summarize here. The five segments objected to were: (i) when Mr. Barry provides a description of what he observed at the scene; (ii) when Mr. Barry refers to a discussion he had with Ms. Barry; (iii) when Mr. Barry, again, provides a description of what he observed at the scene; (iv) when Mr. Barry states what Ms. Barry told him at the hospital; and (v) when Mr. Barry states he told Mr. Grosset that Ms. Barry tripped and fell, there was a tripping hazard, and the Park should put up a fence or sign.

[20] I sustained all the Crown’s objections in relation to Mr. Barry’s video statement. With respect to Mr. Barry’s observations about the scene and his discussion with Mr. Grosset, I found that no reasonable explanation for the failure to correct or update the information provided on Ms. Barry’s examination for discovery had been provided and, in any event, Ms. Barry failed to satisfy me that granting leave under r. 53.08 of the Rules of Civil Procedure would not cause prejudice to the Crown that could not be compensated for by costs or an adjournment.

[21] With respect to the remaining segments objected to by the Crown, I found that the explanation as to why Mr. Barry spoke to Mr. Grosset suffered from the same shortcomings as the segment concerning what Mr. Barry said to Mr. Grosset. There was no mention of Mr. Barry’s discussion with Ms. Barry at the hospital in Mr. Barry’s will-say statement. These objections were also sustained.

(ii) Photographs taken in January 2023

[22] At the outset of trial, Ms. Barry sought to have admitted in evidence a series of photographs of the scene taken by a private investigator in January 2023. I ruled that the photographs would not be admitted in evidence for the simple reason that photographs of the scene taken 6.5 years following the incident are not relevant. In addition, Ms. Barry did not refer to the need for or intention to obtain this proposed evidence when the matter was set down for trial or at the pre-trial conference. I also accepted the Crown’s argument that, if the photographs were admitted, the Crown would be entitled to retain an expert to deal with the issue of changes to the landscape to respond to the proposed evidence. This, of course, would have resulted in an adjournment of the trial.

The claim is statute-barred

[23] Section 7(3) of the PACA provides:

No proceeding shall be brought against the Crown under clause 5(1)(c) [in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property] unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose.

[24] Section 7(1) requires service on the Crown of “notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose.”

[25] Ms. Barry says that the Crown had sufficient notice within 10 days after August 3, 2016 to permit an investigation of the facts surrounding the incident had it chosen to do so and that any notice beyond what they had would be a matter of form over substance. Ms. Barry submits that the notice requirement under s. 7(3) of the PACA does not have a prescribed form, is not expressly required to be in writing, does not require service in any particular fashion, and does not require that service be made on any particular representative of the Crown.

[26] The purpose of s. 7(3) of the PACA is to allow the Crown an early opportunity to investigate and address circumstances that might result in an action against the Crown as occupier: Latta v. Ontario, at para. 20. Two requirements must be met for there to be adequate notice under s. 7(3). First, the notice must contain sufficient particulars to allow the Crown to identify the source of the potential problem, so that it can investigate: Latta, at para. 26.

[27] Second, the notice must include an element of “complaint”: Latta, at para. 27. As the Court of Appeal for Ontario explained in Latta, this element flows from the word “claim” and the legislative purpose of the provision – to allow the Crown either to avoid litigation or to have an early opportunity to prepare its defence: Latta, at para. 27. Notice of a claim must do more than set out the facts underlying the claim: it must inform the Crown of a potential conflict “that could reasonably be anticipated to result in litigation against the Crown”: Mattick Estate v. Ontario (Minister of Health), at para. 18; Latta, at para. 27.

[28] The notice requirements in the PACA are mandatory. In Daoust-Crochetiere v. Ontario (Ministry of Natural Resources), the appellant invited the Court of Appeal to import into the PACA a “relieving provision” similar to s. 44(12) of the Municipal Act, 2001 which provides:

Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

[29] The Court of Appeal rejected this submission, observing that “if the legislature intended a flexible approach to be taken to the notice period under PACA, it would have been simple to add a similar relieving provision.”

[30] In this case, Ms. Barry relies on the Park staff’s response to the incident and the park complaint and occurrence report as constituting sufficient notice under s. 7(3) of the PACA. I do not agree. The park complaint and occurrence report is generated in accordance with the Park’s standard protocol in response to any occurrence in the Park, including those unrelated to any issue of liability.

[31] The facts of Latta, on which Ms. Barry relies, do not assist her. In that case, the plaintiff was a prisoner in the care and control of the Crown when he tripped over a bucket placed by a Crown employee at the top of a set of stairs. The plaintiff reported the incident immediately. The plaintiff completed and submitted an accident/injury report to the Crown, identifying that the plaintiff had tripped over a hazard. The court found that the “nature of the accident and the content of the Accident/Injury Report suggested the potential for litigation”: Latta, at para. 33.

[32] In this case, unlike in Latta, the park complaint and occurrence report was internally generated and does not suggest an element of complaint. I do not agree with Ms. Barry that by its title alone, the report “entails an element of complaint”, particularly given Ms. Grenier’s description of the document as a catchall for everything that goes on in the Park. In addition, and in contrast to the accident/injury report in Latta, the park complaint and occurrence report did not identify a clear hazard – both it and the incident report stated that Ms. Barry “slipped and fell.” Nor do Mr. Grosset’s field notes or the Ministry of Labour’s order document evidence a potential conflict or anticipated litigation.

[33] Ms. Barry also relies on Coulter v. Ontario (MNR), for the proposition that the 10-day notice period should be read generously having regard to the common law principle of fairness in the circumstances of a particular case. The Court of Appeal in Daoust-Crochetiere distinguished Coulter on the basis that it was a case “in which notice was imperfect but sufficient to put the respondent on notice that a claim could reasonably be anticipated.” I would distinguish Coulter from the case at bar on the same basis. I note, in addition, that Coulter was a motion for summary judgment in which the motion judge concluded that the issue of whether the plaintiff met the notice requirement set out in s. 7(3) of the PACA required a trial.

[34] This is not a case of imperfect but sufficient notice. The park complaint and occurrence report and the incident report, both internally generated, identify the cause of the incident as a slip, not a trip. They do not entail an element of complaint. While Ms. Barry places weight on the statement contained in the draft report “Note: The area where the incident occurred is not a designated swimming area for pets and dogs are not permitted to be off leash at any time”, Ms. Grenier denied that this reflected a consideration of fault for the incident. She testified that she believed the sentence was included in the report because “an offence was occurring” at the time of the injury. Ms. Grenier’s explanation is reasonable and I accept it.

[35] Ms. Barry also argues that Mr. Barry’s inquiries about the completion of the incident report are significant because “to a lay person, the completion of an Incident Report would seem like notice to the Crown.” There is no evidence to support this position and, in any event, as I have noted, the incident report identifies the cause of the incident as a slip, not a trip. The same is true of the Ministry of Labour’s field visit report: in that report, the mechanism of injury is identified as a “slip/fall” resulting in damage to the right leg. Ms. Barry’s reliance on the superintendent’s email of August 3, 2016 as a form of notice of her injury to “a broad range” of Crown employees is misplaced for the simple reason that it, too, states that Ms. Barry “slipped and fell into the water.”

[36] In support of her position that the Park had notice in compliance with s. 7 of the PACA, Ms. Barry also relies on two apologies referenced in the park complaint and occurrence report: “[Mr. Grosset] apologized to Bob for what had happened to his wife” and “[Mr. Grosset] apologized for the inconvenience.” Ms. Barry argues that these statements suggest the Park was aware of the potential for litigation. She submits that it is “highly unlikely” Mr. Grosset would have used the word “apologize” twice to mean that he felt badly for what had happened to Mr. Barry’s wife and he “was just being a nice person.” Ms. Barry’s submission in this regard is speculative. I accept Mr. Grosset’s explanation. It is consistent with the contents of the park complaint and occurrence report which identified the cause of Ms. Barry’s accident as a slip.

[37] I agree with the Crown that responding to, recording, and reporting Ms. Barry’s injury does not constitute notice under s. 7 of the PACA. I find that notice was not given by Ms. Barry to the Crown until January 25, 2017, 165 days after the expiry of the 10-day notice period. Accordingly, Ms. Barry’s claim is statute-barred under s. 7(3) of PACA.

Ms. Barry has not proven that she tripped on the retaining wall

[38] While my conclusion that the claim is statute-barred is sufficient to dispose of the action, for the sake of completeness, I continue my analysis. For Ms. Barry to succeed in this action, she must prove, on a balance of probabilities, that she tripped over the retaining wall at the Park, as alleged in the statement of claim. Further, Ms. Barry must pinpoint some act or failure to act on the part of the Crown as occupier that caused her injury.

[39] The evidence at trial supports a finding that Ms. Barry slipped and fell while standing on the retaining wall, rather than a finding that she tripped on the retaining wall.

[40] Ms. Barry testified that the dog toy was about eight inches from the retaining wall. She said that she started to bend down to pick up the toy when her right foot, which was moving toward the wall beyond the toy, hit a solid object. She then fell into the water, in a somersault-like motion, landing chest-first, on her arms. The solid object was, she says, the retaining wall and there was a height differential between the ground and the top of the wall. She did not see the “lip” of the retaining wall because the wall was hidden by grass.

[41] Ms. Barry’s version of how she fell into the water is both implausible and contradicted by other evidence which I accept.

[42] First, it does not make sense that Ms. Barry’s right foot would continue to move toward the wall at the same time as she was starting to bend down to reach the dog toy. Both her feet would have been planted on the ground. She would not have been proceeding beyond the top of the retaining wall. She would not have had any forward momentum that would result in a somersault-like fall into the water. And, if her right foot had hit a solid object, her left leg would have moved forward. This, too, is inconsistent with Ms. Barry’s version of how the fall occurred.

[43] Second, Ms. Barry’s testimony at trial of how she landed in the water – chest-first, on her arms – was contradicted by her evidence on discovery, read in at trial, that she fell on her tailbone.

[44] Third, Ms. Barry’s testimony that she could not see the retaining wall, even when she was eight inches from it, starting to pick up a dog toy, is not credible. Her testimony is contradicted by the photographs taken by Mr. Barry on August 14, 2016, the purpose of which was to document the scene at the time of the incident on August 3, 2016. Those photographs do not show an edge or a lip on the grassy side of the retaining wall. The top of the retaining wall is clearly visible.

[45] Fourth, Mr. Grosset testified that when he spoke to Ms. Barry in the immediate aftermath of the incident, she told him that she was playing fetch with her dog and when she reached for the ball, she slipped and fell. Ms. Barry denies speaking to Mr. Grosset. I find that Mr. Grosset did speak to Ms. Barry and that she told him she slipped and fell.

[46] I found Mr. Grosset to be a credible and reliable witness. He gave his evidence in a straightforward manner. He had no motivation to exaggerate or to misstate what occurred.

[47] Mr. Grosset testified as to his standard practice in “critical injury cases”, including Ms. Barry’s case. His standard practice included speaking with the person who was injured and asking them if they required medical assistance. I accept that Mr. Grosset spoke with Ms. Barry as part of his standard practice following such an incident. As part of his standard practice, he documented in his notes what Ms. Barry told him had occurred. The incident report and the park complaint and occurrence report are consistent with Ms. Barry’s statement to Mr. Grosset that she slipped and fell.

[48] I do not agree with Ms. Barry’s argument that the reliability of Mr. Grosset’s notes was “significantly tested” during his cross-examination. While he admitted that his note-taking was not verbatim, there is a marked difference between “slipped” and “tripped.” He recorded that Ms. Barry told him that she slipped. Any suggestion that Mr. Grosset may have “caught up” with his entry pertaining to August 5 two days later [I note Mr. Grosset’s denial that this occurred.] does not impact the reliability of Mr. Grosset’s notes on the day of the incident – August 3 – and what Ms. Barry told him. Contrary to Ms. Barry’s submission, Mr. Grosset’s field note was not ambiguous as to whether he spoke to Ms. Barry or the group. His field note reads: “I asked Darlene and group what had happened, she replied that she was throwing her dog a toy in the water and when she reached over to grab the toy, she slipped and fell onto her leg awkwardly.”

[49] Ms. Barry argues that if she did tell Mr. Grosset that she slipped and fell, her statement is unreliable because at the time it was given she was in severe pain, very cold and “possibly hypothermic”, being tended to by paramedics and firefighters, and she had received pain medication. There is no objective evidence to support such a finding. I also note that in advancing this argument, Ms. Barry effectively discounts the very same documents – the incident report and the park complaint and occurrence report – that she relies on as constituting notice of her claim.

[50] Fifth, although I have placed limited weight on them, the records from the Kemptville Hospital and the Ottawa General Hospital contain statements attributable to Ms. Barry that are inconsistent with her testimony that she tripped and fell into the water. Ms. Barry submits that these medical records cannot be relied upon for the truth of their contents relative to Ms. Barry’s fall.

[51] In Parliament v. Conley, the court admitted in evidence clinical notes and records by a physician which recorded a statement made by the plaintiff’s husband to the physician. Relying on the Saskatchewan Court of Appeal’s decision in L.(B.) v. Saskatchewan (Ministry of Social Services), the court in Parliament noted that the entry’s double or triple hearsay nature does not affect the entry’s characterization as a business record and does not affect the admissibility of the entry.

[52] Section 35(4) of the Evidence Act provides:

The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

[53] In Sopinka, Lederman & Bryant: The Law of Evidence in Canada, (6th ed.), the authors provide some guidance on this issue at ¶6.264:

Courts have held that hospital records constitute business records. Although the hospital record relates to matters extraneous to the business of running a hospital (e.g. the cause of a patient’s injury), these matters are important to the administration of medical care to the patient. Information provided by the patient as to the cause of injury is required in the diagnosis and treatment of the injury, and that is the very business of a hospital. In [Melton v. St. Louis Public Service Co., 363 Mo. 474], the Supreme Court of Missouri, under a comparable business records statute, held that a hospital record containing statements describing the cause of the accident in which the patient was injured was admissible. In so doing, the Court expressed its conclusion in this way:

The hospital wanted to know how the patient got hurt. This was helpful to the hospital because it aided in determining the nature and extent and proper treatment of the plaintiff’s injury. The patient stated how he got hurt. The statement was recorded for the apparent purpose of furthering the hospital’s treatment of the injury, and the record of the statement was apparently made by someone of the hospital staff who presumably, in the circumstances of the recording, had no occasion to falsify the record. The record was surely of something – an act, condition or event – in the regular course of the hospital’s business.

[54] Adderley v. Bremmer, on which Ms. Barry relies, is distinguishable because in that case, it was the plaintiff who sought the admission of medical records which included statements made by the plaintiff upon their admission to hospital to prove their case.

[55] In my view, the medical records are admissible as business records and the statements recorded in them are admissions against interest. Admissions are admitted without any necessity/reliability analysis because, as Sopinka J. explained in R. v. Evans:

[their] admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). R. v. Foreman, at para. 37, citing R. v. Evans, [1993] 3 S.C.R. 653, at p. 664.

[56] The Kemptville Hospital emergency record records “fell off a ledge for 3 feet into the water and twisted [right] leg.” The Ottawa Hospital triage assessment report records “was on a stone wall throwing ball for dog – fell into shallow water.” While Ms. Barry suggests that the statements cannot be conclusively attributed to her, [A concern noted by the British Columbia Court of Appeal in Olynyk v. Yeo.] there was no evidence led at trial that Ms. Barry was accompanied by anyone who could have made the statement. Ms. Barry stated that the first description is “wrong”; with respect to the second, she testified that it is “inconsistent with my description”, from which I infer that she did provide a description as to how she fell.

[57] Finally, I address here Ms. Barry’s submission that I should draw an adverse inference from the Crown’s failure to call the alleged eyewitnesses to the incident given that the Crown referred to one such witness in its opening.

[58] The authorities establish that an adverse inference may be drawn from the failure to call a witness where: (i) a party has not explained the failure to call an important witness; (ii) the evidence of that witness has not been provided from other sources; (iii) a prima facie case has been established by the opposing party that the party failing to call the witness must disprove or risk losing the case; and (iv) that party alone could bring the witness before the court.

[59] I decline to draw an adverse inference. This was a judge alone trial. The Crown elected not to call the witness as part of its case. The witness was equally available to be called by both parties.

[60] Based on the evidence before the court Ms. Barry has not proven that she tripped and fell over the retaining wall.

Ms. Barry has not proven that the Crown, as occupier, acted unreasonably

[61] While Ms. Barry has not proven that she tripped on the retaining wall, for the sake of completeness, I continue my analysis under s. 3(1) of the OLA.

[62] Section 3 of the OLA provides:

(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.

(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.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

[63] Section 4 of the OLA imposes a lesser duty of care. Because I have determined that the Crown met the higher duty in s. 3(1), I need not consider if s. 4(1) applies in this case.

[64] The statutory duty imposed by s. 3(1) of the OLA is a duty to take reasonable care. As the Court of Appeal stated in Waldick v. Malcolm, at para. 20:

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. Occupiers are also not liable in cases where the risk of injury is “willingly assumed” by persons entering the premises or to the extent that such persons are negligent.

[65] The duty of care under the OLA is a standard of reasonableness, not perfection; it does not require unrealistic or impractical precautions against known risks: Kerr v. Loblaws, at para. 19.

[66] The presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons are reasonably safe while on the premises. The measure of what is reasonable depends on the facts of each case, including foreseeability, the gravity of the possible harm, the burden of the cost of preventive measures, industry practice, custom, and applicable regulatory standards: Fernandez v. Toronto (City), at para. 48; Gohm v. York, at para. 50.

[67] In Nandlal v. Toronto Transit Commission, the plaintiff slipped and fell at the threshold of a flight of stairs at a TTC station. The plaintiff provided only a subjective rationalization for her having fallen down the stairs. At para. 29, Perell J. observed:

It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.

[68] That the standard is one of reasonableness and not perfection is also well-illustrated by the decision in [Tomczyk v. British Columbia (Ministry of Environment Lands and Parks), [1998] B.C.J. No. 1877 (BCSC)]. In that case, the plaintiff tripped over a boulder embedded in the ground at the front of her campsite while camping at a provincial campground. In finding that the province had met the standard of care, the court found that the presence of the rock in the campsite was not unusual in the circumstances and that “the rock was there to be seen and did not present a hidden danger to any user”: [Tomczyk](Tomczyk v. British Columbia (Ministry of Environment Lands and Parks), [1998] B.C.J. No. 1877 (BCSC)), at paras. 9 and 14. The court also considered that “many thousands of people had used such sites without incident” and that “although proper lighting might have made the site safer at night” such would have been to meet the standard of perfection”: [Tomczyk](Tomczyk v. British Columbia (Ministry of Environment Lands and Parks), [1998] B.C.J. No. 1877 (BCSC)), at para. 14.

[69] The Park is a large provincial park, known for its location on the Rideau River. It includes forest trails and riverbanks. Ms. Barry testified that the proximity of their campsite to the water was an attraction for them. She admitted she was aware of the water and the fact there was no beach. She knew there was a drop off to the water. The area at the edge of the retaining wall was neither a trail nor a walkway.

[70] I am satisfied on the evidence of Ms. Grenier and Mr. Grosset that the Crown had a reasonable maintenance system. Ms. Grenier testified that when the Park was open to the public, the grass was mowed to the edge of the retaining wall. Mr. Grosset was one of the enforcement officers. He testified that the area was mowed weekly and groomed with weed whippers. When he was shown the photograph taken on August 14, 2016, he conceded that the grass “looks a little longer than usual” but he testified that the grass never covered the retaining wall. There is no evidence of complaints or other slip and fall incidents either before or after the incident involving Ms. Barry.

[71] There is no evidence of any hazard in the area in which the incident occurred. Mr. Grosset did not observe any tripping hazard. He did not see any divots between the ground and the top of the retaining wall. He testified that if he had seen a tripping hazard, he would have recorded it in his notebook and in the park complaint and occurrence report. The Ministry of Labour attended the Park for the purpose of determining if there was a hazard. No hazard was observed.

[72] In Taylor v. Allen, relied on by Ms. Barry, the trial judge found that a ring of cinder blocks partially buried in the grass around a firepit – an area where one would expect people to be walking – constituted an unreasonable trip hazard. In this case, there was no unusual or hidden hazard. The retaining wall is large and visible. It is there to be seen. The water’s edge is obvious. Both the riverbank and the retaining wall are expected features of the Park. The Crown has no duty to protect against or warn of obvious risks: Winters v. Haldimand (County), at para. 16; Karpouzis v. Toronto (City of), at para. 89.

[73] Nor was the Crown required to protect against misuse of the premises. At the time of her accident, Ms. Barry was engaging in a prohibited activity – playing fetch with her dog off leash – either standing on or at the edge of the retaining wall. She would have been aware of the retaining wall, the riverbank, and the drop to the water below as she was bending down some eight inches from the edge of the wall. Again, the retaining wall was there to be seen. I agree with the Crown that to expect the Crown to protect against such misuse – for example, by installing a fence – would be to hold the Crown to a standard of perfection and would have changed entirely the natural setting of the Park.

[74] I find that Ms. Barry was the author of her own misfortune. The Crown is not Ms. Barry’s insurer against all possible harm. She was required to act with common sense and regard for her own safety in a provincial park. I find that she did not do so. There was no obligation on the part of the Crown to protect her from standing on the retaining wall which, Ms. Barry herself agreed, would be reckless and careless. Leaning over the edge of the wall would also be imprudent.

[75] Regardless of where Ms. Barry was standing, the Crown had no duty to warn of the obvious and self-evident risk posed by the riverbank and the drop to the water below, both of which Ms. Barry was admittedly aware. The retaining wall, too, was readily apparent to a person exercising reasonable caution for their own safety.

Conclusion

[76] On August 3, 2016, Ms. Barry suffered an unfortunate accident at the Park. She did not, however, give notice of her claim within ten days as required by s. 7(3) of the PACA. In any event, her accident is not one for which the Crown is liable. Accordingly, the action is dismissed, with costs.

[77] In the event the parties are unable to agree on costs of the action, they may make written submissions limited to a maximum of three pages, exclusive of relevant attachments. The Crown shall deliver its costs submissions by August 10, 2023. Ms. Barry shall deliver her responding costs submissions by August 24, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell

Released: July 27, 2023