Occupier's Liability Act - Definition of Recreational Trail

Schneider v. St. Clair Region Conservation Authority (2009), 97 O.R. (3d) 81 (C.A.)

Schneider was injured while skiing in a conservation area when she left a marked trail and her ski struck a wall hidden by snow. During the winter months, the area was used for activities such as skiing, tobogganing and hiking, but the defendant did not perform any maintenance of the area. Section 3 of the Occupier’s Liability Act imposes a duty on occupiers to take reasonable care to ensure that people are reasonably safe while on the premises. Where a person willingly assumes the risks of entering premises, section 4(1) of the Act substitutes a lesser duty on the occupier to not create a danger with deliberate intent to do harm and to not act with reckless disregard. Section 4(3) of the Act is a deeming provision that provides that a person who enters certain types of premises that are outlined in section 4(4) is deemed to have willingly assumed the associated risks. Those premises outlined in section 4(4) include such property as rural premises and recreational trails.

The trial judge held that the lesser duty of care did not apply because the premises did not come within one of the categories listed in section 4(4). He noted that although the premises contained recreational trails, the concrete wall was not on one of the trails.

The Court of Appeal allowed the appeal and dismissed the action. The court reviewed the purpose and history of the Occupier’s Liability Act. The purpose of section 4 was to encourage land owners to make their lands available to the public for recreational use. The Court of Appeal sensibly stated that it would make little sense to impose a lesser standard when users remained on the trail, but to impose a higher standard when they veered off of it. The trail was being used by Ms. Schneider for recreation and it met the definition of recreational trail, thus bringing it within the provisions of section 4.

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