Perlene Morrison and Hilary Foster
The Supreme Court of Canada recently declined to hear an appeal from the Ontario Court of Appeal decision in Campbell v Bruce (County), 2016 ONCA 371. The Court of Appeal confirmed the lower court finding that the Municipal Corporation of the County of Bruce (the “Municipality”) was liable for serious injuries sustained by a visitor in the Municipality’s public bicycle park.
The Municipality constructed a public mountain biking park, consisting of a series of bicycle trails and a skills development area with various wooden obstacles. The park was open to the public with no admission fee and was unsupervised. Campbell, a visitor to the park, sustained serious injuries after he fell attempting to cross a constructed obstacle in the skills development area. Campbell brought an action against the Municipality, alleging that the Municipality was liable for his injuries.
The Ontario Superior Court of Justice found the Municipality liable for breaching the duty it owed to Campbell under the Occupiers Liability Act, RSO 1990, c O.2 (the “Occupiers Liability Act”) to ensure he was reasonably safe while in the park. The Ontario Court of Appeal (the “Court”) dismissed the Municipality’s appeal, finding that the lower court had made no reviewable errors in holding the Municipality liable.
The Municipality had promoted the park as a family friendly venue. Promotional brochures contained a warning that mountain biking can be risky and that visitors should ride within their own abilities and at their own risk. Signs were installed in the park, cautioning visitors (1) to ride within their ability and at their own risk; (2) that helmets are mandatory; and (3) to yield to other groups. The Municipality also employed an incident analysis and reporting system which allowed visitors to self-report injuries that had occurred in the park via an email address and toll-free number.
The Occupiers Liability Act
In finding the Municipality liable, the Court examined the nature of the Municipality’s duty under section 3(1) of the Occupiers Liability Act:
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.
The Court indicated that the factors which are relevant to an assessment of what constitutes reasonable care are specific to each fact situation. Determining whether a municipality has taken reasonable care in the circumstances requires consideration of the following factors:
- the gravity and likelihood of sustaining injury;
- hazardous activities will require persons to exercise more caution; and
- the more dangerous an activity is, the more steps that must be taken to see that no one is injured by it.
The Court reviewed the steps the Municipality had taken to ensure safety in the park, and found that the Municipality breached its duty to take reasonable care in four ways:
- the Municipality failed to post proper warning signs in the park;
- the Municipality was negligent in its promotion of the park;
- the Municipality failed to adequately monitor risks and injuries in the park; and
- the Municipality failed to provide an adequate progression of obstacles in the skills development area of the park.
The Court found that warning signs should have been posted advising of the risk of serious injury, as well as the level and type of expertise required to navigate the obstacles safely. In addition, the Court found that the park could have posted instructions on how visitors should dismount, or maintain control of their bicycle in the event of a fall.
The Court disagreed with the Municipality’s decision to promote the park as a family friendly venue. It found that the promotional brochure for the park should have contained more detailed warnings about the skill level required to use the features of the park; as well as the risks of injury from crossing the obstacles.
As for the Municipality’s incident analysis reporting system, the Court found it insufficient. Several riders had been seriously injured on the constructed obstacles, and the evidence at trial indicated that prior to Campbell’s accident, there had been at least seven ambulance calls as a result of injuries sustained at the park. The Court indicated that the Municipality could have placed a box at the park with forms to report incidents; and had the Municipality employed a mechanism to document and assess ambulance calls when the park opened, steps could have been taken to minimize the occurrence of injury.
Finally, the Court found that Campbell fell on an obstacle that logically followed a significantly less challenging obstacle, making it likely that they would be ridden in tandem. The Court concluded that had the Municipality constructed a more adequate progression of obstacles, Campbell would not have attempted the feature or sustained the resultant injury.
The Court acknowledged that Campbell was experienced in the sport of mountain biking, and therefore he had accepted some of the inherent risks associated with riding on the bicycle trails. However, the Court found that the Municipality failed to adequately warn Campbell of the inherent dangers with the skills development obstacles, and that an ordinary person, exercising common sense, would not have been able to perceive or appreciate these dangers based on the steps the Municipality had taken. The Court did not interfere with the trial judge’s conclusion that Campbell was not contributorily negligent. As a result, the Municipality was solely liable for Campbell’s injuries.
Message for Municipalities
Municipalities have a duty to take reasonable care to ensure the safety of persons entering on municipal premises. The standard that municipalities will be required to meet in satisfying this duty is subjective, and will depend on the risks associated with the conditions of the premises as well as the activities carried out thereon. In some circumstances, the risks associated with some activities will require positive action on the part of the municipality to ensure those premises are reasonably safe.
Municipalities should be mindful of the conditions of their premises, and the activities likely to be carried out on them. If an activity is associated with high incidence of injury, or a condition of the premises makes injury likely, then municipalities must take more steps to see that no one is injured. Moreover, if an activity is associated with a high risk of injury, municipalities would be prudent to establish a system to monitor injuries, and take positive steps to identify and minimize the occurrence of injury and the risk of accident by visitors. In fact, municipalities should consider whether the risk of injury is such that the activity should not be endorsed or promoted by the municipality.
Generally, municipalities will not be liable for risks that persons willingly assume. Despite this, persons will not be found to have willingly assumed risks that an ordinary person, exercising common sense, would not be able to perceive or appreciate. It is therefore incumbent on municipalities to ensure that visitors are aware of and able to appreciate these risks. Warnings of general risks may be insufficient. Signage should note the specific risks associated with activities and be detailed enough to allow visitors to make an informed decision on whether they are willing to accept these risks.
If you have any questions about this update or would like assistance developing municipal procedures to address the duty of care under the Occupiers Liability Act, please do not hesitate to contact our municipal government team at Stewart McKelvey in Charlottetown, Perlene Morrison and Jonathan Coady.