Imagine that it is a beautiful fall day, and you decide to go for a bike ride before the weather cools down. Cycling in a nearby wooded area, commonly used by your neighbourhood for outdoor activities, imagine your horror when your bike tumbles into a ditch. In addition to sustaining many scrapes and bruises, you have broken your leg!
It does not seem fair. That ditch wasn’t there before. Why hasn’t a sign been posted that there is a ditch on the path?
Biking, hiking, snowmobiling are all outdoor activities outside the concrete jungle that carry with them certain risks. Like in the hypothetical scenario above, not only can you come across an unmarked ditch, but forested or rural paths may be littered with rocks, debris, fallen trees, or uprooted infrastructure.
What are the obligations of the property owners in these situations? Whether the property owner is a municipal, provincial or other government entity, a non-profit organization, or a private owner, the Occupiers’ Liability Act informs the duty of care of owners of these types of properties.
Generally, the Occupiers’ Liability Act places a duty of care on “occupiers” (owners, landlords, and others who have control of premises) of property to take reasonable care to ensure that all those who enter their premises remain safe.
However, the Occupiers’ Liability Act also carves out certain exceptions for recreational activities in rural areas. More particularly, section 4 of the Occupiers’ Liability Act states that the above-referenced general duty of care is different in the case of “reasonably marked” recreational trails, used for the purpose of engaging in a recreational activity. For this type of property, the user is taken to assume all risks willingly, and the property owner has a 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.”
It is difficult to prove “deliberate intent” to harm and “reckless disregard” for persons using the recreational pathway. Note that the legislation creates a dual standard – you need to prove only one of “deliberate intent” or “reckless disregard” to demonstrate that the property owner breached its duty of care under the Occupiers’ Liability Act.
These are fairly onerous terms that are almost akin to a criminal standard. In some way, it does make sense that, barring exceptional circumstances, a person should willingly assume the risks associated with using what is essentially a part of nature and all the irregularities, natural defects and ‘rough spots’ inherent in nature. But what are those exceptional circumstances?
The legislation states that a recreational trail must be a marked trail for it to fall within the legislative protection cited above. There are some cases brought before the courts in which the injured person alleged that the owners of the recreation trail used improper or inadequate signage to alert cyclists or hikers of a defect in the trail (such as a ditch, steep hill or curve). In many of these cases, the courts held that “inadequate” signage was not enough to conclude that the owner acted with “reckless disregard” for the safety of the users of the pathway. In other words, a property owner will not be found to be in “reckless disregard” for the safety of users merely because the signage could have been improved. If it is present and visible, then the property owner has likely met its duty of care, subject to my comments below.
Acting in “reckless disregard” for the person has been held by the Ontario Court of Appeal to mean “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 and not caring whether such damage or injury results” (Schneider v. St Clair Region Conservation Authority 2009 97 O.R. (3d) 81). Using wrong signage, as opposed to merely inadequate signage, may very well fall within this exception.
Where an area of the trail or pathway is known to be dangerous, and the owner (whether it is a private owner or municipal owner) fails to inspect the trail, maintain it or take steps to address the danger and communicate said danger to users — such as cyclists and hikers – then that failure may constitute a “reckless disregard”. (Herbert v. City of Brantford 2010 ONSC 2681).
In addition to well-marked recreational trails, property owners are subject to the lower standard set out in the Occupiers’ Liability Act in regards to rural or forested properties. In other words, if you are hiking on or otherwise making use of a rural or forested area for a recreational activity or even for access purposes (taking a short cut to your parking lot, for example), the owner of that property has a 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.”
The challenging question is what exactly is a “rural” or “forested” property? In general, courts have used the following guidelines to interpret these terms:
- A natural environment located within the city limits is not “rural premises”
- A wooded area within an urban centre is not considered rural or forested premises
- Where the property is in close proximity to houses, businesses and institutions, then it likely will not be considered rural premises
- A wooded area where the closest homes are more than 1 km away, and no other buildings or structures are nearby, may be considered rural and/or forested premises
- Access to the area by a private road may suggest that it is more of a rural rather than urban property.
Utility Rights of Way and Corridors and other Types of Properties
Accidents that occur on the following properties are also subject to an enhanced protection under the Occupiers’ Liability Act:
- Utility rights of way and corridors
- Land used for agricultural purposes
- Private roads reasonably marked as such
- Unopened road allowances
- Vacant or undeveloped premises
Use at your own Risk!
While the legislation and case law does support an obligation by public and private property owners to assess trail safety and reduction of risk to users, there are certain steps that you should nonetheless take yourself to minimize the risk of accidents and injury while you are biking, hiking or otherwise using a non-urban property:
- If you are biking, wear a helmet and where necessary, a headlight
- Be vigilant while using the property. Keep an eye out for unmarked intersections, curves in the road, and any steep inclines or declines
- If you notice any potential hazards, then notify the property owner – whether the property owner is a municipal entity or a private owner
- Similarly, if any warning signs are missing or poorly located, notify the property owner
- Be informed. Are you 100% sure that the property you are using is available for public access? Trespassers may not be protected by the duty of care set out in the Occupiers’ Liability Act.
- If you are on a shared-use path, then adjust your speed if biking, and stay on one side of the path if walking. Poor design elements should also be reported to the appropriate owner/authority.
- Respect the surface of the property. If there are many rocks and tree branches, you are more likely to stumble or lose your balance.
- Are you using the property at night? Is it well-lit? Use your discretion appropriately in these circumstances.
Thanks to the Ontario Trial Lawyers Association (OTLA) for this article https://www.otla.com/