Legal Liability Issues for Trail and
Paper for Canadian Rails to Greenways Network
Presented by David McRobert, Ontario Round Table on Environment and Economy(1)
This paper presents a short survey of legal liability issues for trail managers in Canada.(2) It would be impossible to cover all of the important legal liability issues that trail managers should consider in a short presentation; thus the focus here is placed on the issue of occupier's liability for accidents that may occur on trails.(3)
The analysis begins with background on development of the law and then goes on to describe the state of the common law (ie. judge-made law) in Canada today. The focus then shifts to consideration of statutory modifications which supercede to the common law. The analysis concentrates on Ontario's statutory regime but some reference is made to other jurisdictions.
This paper does not discuss the state of the law in Quebec for several reasons. Suffice to note that many of the same types of principles are applied by the Quebec courts in adjudicating accident claims.
Setting the Scene
Imagine you are a trail manager. One day you are sitting at your desk and you get a call saying that a speeding mountain biker has crashed into a group of hikers and a small girl has been seriously hurt. There is speculation that she has been paralyzed from the neck down.
Within hours you are contacted by the child's family who say they intend to sue you, the directors of your association and anyone else they can accuse of negligence such as the trail designers and builders. Although you are covered for the activities of your affiliated groups and you attempt to minimize your risks by training staff and volunteers to reduce your liability, your insurance policy seems vague on whether or not you have liability for accidents that involve groups who do not pay a fee to you or are not members of your association.
The next day you are contacted by the lawyer hired by the little girls' family who asks for the name of your lawyer. He starts to ask tricky questions but you remember that your lawyer once told you not to answer them directly before speaking with him.
You call your lawyer but he is away for a few weeks. You begin to feel slightly nervous. You worry about whether the pending litigation will mean your insurance premiuims will rise and about getting tangled in a web of litigation.
There are dozens of questions that would arise in such a scenario. Is the trail manager liable for damages? What legal defences are available? What steps should he take to reduce risks and what are the implications of doing so?
These are tricky questions and no simple answer to them is available because laws in Canada vary from province to province. One thing I can do here today is clear the air with respect to some of the old cases that hang around in people's minds and may be causing unecessary anxiety. One of these is called the McErlean case and it involved a fifteeen year-old boy from Brampton who was involved in a serious accident with another young man on a motorcycle in 1977. They crashed together at a sharp turn and the the boy was paralyzed for life; the family sued the municipality alleging negligence. At trial, the boy and his family were awarded more than $6 million in damages. This case resulted in panic as municipalities and trail operators scrambled to buy insurance.
There are several points to note about this case. First, it was overturned by the Ontario Court of Appeal in 1988. Secondly, the young man was found to be contributorily negligent so that the damage award was significantly reduced. Thirdly, this case is not binding on judges in other provinces. Finally, in Ontario this case preceded the passage of the Occupier's Liability Act in 1980.
In the result, I would argue that this case, and other similar cases, are of little relevance today. If the person in question managed a trail in Ontario and contacted me to ask my advice I would tell them to relax as long as they were doing some basic things. For example, as long as they had marked the trail properly (eg. potential hazards had been denoted with signs) and established a trail rating and, my suspicion is that this trail manager would not have to worry. Indeed, there is evidence that trail managers who go beyond basic standards established in applicable legislation may be (unintentionally and unbeknownest to them) opening themselves to increased liability. Hopefully, after I have completed my presentation today you'll understand why.
Background and Context
There are two areas of the common law that are relevant to this analysis: torts and property. Tort law deals with any harm or loss that one person causes another, and with compensation for the victim. Property law governs the rights and interests of landowners or occupiers and forms the basis of trespass to property laws. To a lesser degree, contract law may be involved in liability issues depending on whether or not a charge is imposed for use of a trail.
Tort law is a very complex area but some key ideas deserve quick review. This area provides standards on negligence for basic daily activities. A person's conduct is defined as negligent if it creates an unreasonable risk of harm; however, a careless person is not likely to be found negligent unless someone has actually been injured because of his or her conduct.
The first step in a negligence action is to establish that the defendant, such as a trail operator, owed a plaintiff, such as a trail user, a "duty of care". Once a duty of care has been established, the court must determine the "standard of care" (ie. the amount of care society expects of the defendant). The required standard of care that has been developed by the courts is the amount that would be shown by a reasonable person in a similar situation. The reasonable person is not expected to be perfect but thoughtful, of normal intelligence and considerate of other people in all dealings.
Once the courts have established that a defendant has breached the required standard of care, the plaintiff must be able to prove that the defendant's negligent conduct was the cause of the plaintiff's injury. In some cases the damages sustained have little connection to the defendant's actions.
The courts also must have regard to remoteness, or the distance between an action by a defendant and a loss or injury, and the test of foreseeability in assessing the plaintiff's claim. Moreover, the plaintiff must demonstrate that he or she suffered some actual harm or loss directly as a result of the defendant's negligence. Thus, a trail manager will not be held liable for a lack of CPR first aid training if the particular injury was a broken back and this training could not have reduced the damages sustained by the plaintiff.
The plaintiff must prove his or her case on a "balance of probabilities". In other words, if the evidence appears to be evenly balanced between the plaintiff and the defendant at the end of the trial, the plaintiff will not succeed. At the same time, the legal principle of res ipsa loquitur (Latin for "the matter speaks for itself") will be relied on when it is not possible for anyone to explain how the accident occured.
There are three key defences to tort actions: 1) contributory negligence; 2) voluntary assumption of risk; and 3) act of god. The key one that is most relevant to trail managers is voluntary assumption of risk and I'll get to that shortly.
Occupier's liability is one of the oldest forms of tort law and it has a complex genesis. In feudal times, adverse possession, that is control of land by an occupier, could establish title to land. This resulted in the creation of a set of three classes of land and property users that is still relied on today: invitees, licensees and trespassers.
At various times in the past few centuries, the courts have held that occupiers owe different duties of care to these classes of land users.
Invitees are persons on a premises for a purpose other than a social visit. Invitees include students attending school, store customers, theatre patrons, and person making deliveries. Paying trail users also are often considered invitees in those jurisdictions where statute law does not apply. Often the courts consider whether the occupier made a profit from the invitee in determining whether the user meets the test. Invitees are owed a very high standard of care and this means that occupiers must be aware of the condition of their property at all times and inform invitees accordingly.
Licensees are persons who enter property with the permission of the occupier. An example is a friend invited to dinner. The occupier is required to warn a licensee of concealed or unusual dangers of which the occupier is aware. No liability exists for hazards unknown to the occupier that a reasonable person could not have discovered in regular maintenance of their property.
Trespassers are persons who enter without permission and the courts have held that the occupier does not owe any duty of care to them. However, the occupier cannot set traps or cause deliberate harm by firing a gun. In fact, once the occupier is aware of a trespasser on the premises, he or she must exercise a reasonable duty of care and warn of unusual dangers of which he or she is aware.(4) In some jurisdictions, these rules have been put into statute; thus, under Ontario's trespass law, the occupier does not owe a duty of care to a trespasser who is always considered to assume his or her own risks.
A sub-class of trespassers owed a special duty of care are children. Trespassing children often are recognized as having special rights because of their age or because they can be attracted onto a property because of some feature such as a swimming pool.
With the growth of mercantilism over the past few centuries, the logic of these three classes began to break down. It is difficult to distinquish between invitee and licensees in many circumstances. Is a business associate invited to dinner an invitee because of profit related to a deal made during dinner?
Court decisions began to reflect the availability of a deep pocket such as an insurance company or a municipality. In 1957, England reformed their laws to eliminate the distinction between invitees and licensees. In Canada, three provinces -- Ontario, Alberta and British Columbia -- also have launched statutory reforms which eliminate the distinction between these classes of property users. In Quebec, these classes never existed so their law reflects this position as well.
Other provinces also have examined reforms and some changes have been undertaken but for the most part they retain their grounding in the common law.
The impact of the statory reforms are explained by reference to Ontario's example. Ontario brought in two laws -- the Occupier's Liability Act (OLA) and the Trespass to Property Act -- in 1980 after a lengthy consultation with trail groups, farmers and other key stakeholders. Under these laws, the occupier has a duty of care to ensure that every visitor to his or her property will be reasonably safe. This duty of care does not extend to visitors who willingly assume a certain risk, such as spectators at a game who might be struck by a flying baseball bat.
Ontario's Trespass to Property Act (TPA) contains an important feature that is intended to give occupiers greater control over entry and use of their land and premises. For example, section 3(1) of the TPA prohibits without notice entry onto land under cultivation, enclosed areas and woodlots.
The statutes in Ontario and elsewhere require every visitor to act in a reasonable manner when warned of a particular danger or hazard. If precautions are not taken, then the visitor would be considered to have contributed to their injuries by the courts. A system of signs has been developed to allow owners to prohibit entrance onto their land and restrict uses. Adjoining property owners with no interest in the trail are under no threat of liability unless they create a dangerous condition on the trail.
In sum, Ontario laws prescribe certain classes of premises on which non-paying entrants are deemed to assume their own risk. Section 4(4) of the OLA stipulates that the following types of rural lands are covered by this approach:
The courts have generally tended to uphold these principles in their interpretations of these new laws. Admittedly, there have been some confusing lower court decisions in some jurisdictions. In 1989, the Ontario Court of Appeal released an important decision called Cormack v. Township of Mara (5) that clarified a municipality did not have a responsibility to maintain a bridge on an unopened road allowance and thus was not required to compensate a snowmobiler who was injured while travelling at high speed on the allowance.
In Ontario, a key goal of the policies behind these reforms was to encourage public access to land for recreational purposes. To foster trail use by recreational organizations and to reduce friction between trail users and occupiers, the Ontario government suggests the negotiation of agreements which clarify respective rights and duties (see hand-out). Unfortunately, it appears that most trail organizations have not negotiated these types of agreements, in part because of a lack of interest from adjacent land owners.
In contrast to Ontario, many US jurisdictions have enacted laws that reduce liability for trail managers but have not altered the basic legal principles related to duties of care owed to land users.(6)
State of the Common Law in Canada
There is good news and bad news on the state of judge-made law related to liability for accidents on trails and recreational lands.
The bad news is that the common law is extremely muddled on the application of these principles of tort law to the classes of users outlined above. Judicial attitudes vary enormously. For the most part, judges have recognized that social changes such as greater mobility and the development of more hazardous equipment and vehicles (eg. motor bikes) have altered the extent and nature of the injuries that individuals sustain. Where there is insurance money available, judges also demonstrate a tendency to award damages to plaintiffs.
The good news is there are no cases in Canada, at least that I am aware of, which hold that a non-motorized, non-paying trail user will be compensated for injuries sustained based on occupier's liability. Moreover, at the present time much of the case law that does exist indicates that judges will not hold occupiers liable for injuries sustained by users who at in an irrational and unpredictable way.
To this end, it is worth noting that one of the advantages of developing trails and greenways on old rail tracks is that they tend to be straight and flat. When there are dangers or potential dangers on a trail (such as holes or bumps), liability can be reduced if signs are posted warning of the danger.
While the courts have recognized that the people who run public facilities cannot prevent against irrational and extreme behaviour, they sometimes issue decisions that cause concern. For example, in 1988 the Supreme Court of Canada decided Crocker v. Sundance Northwest Resorts. This decision involved a young man who got very drunk and broke his neck going down a ski hill in an inner tube. The hotel that ran the ski hill was sued for damages. The Supreme Court of Canada decided that the voluntary assumption of risk principle only applies when the plaintiff knows the physical and the legal risk involved in an activity. In this case, the drunk man did not know the legal risk involved because he was to drunk.
What this case shows is that courts are very reluctant to find voluntary assumption of risk, even in cases where it seems obvious, because of the consequences for the plaintiff. For example, a court would probably want to assign 50% of the blame to a leader of a hike and 50% of the blame to a hiker if the hiker is injured. Thus, the courts will look carefully at whether the person who got hurt during the hike not only knew the risks of hiking along the trail but consciously assumed responsibility for the legal consequences. In other words, did the person waive her or his right to sue the trail manager or the hike leader and be compensated for injury before he or she fell down a steep hill and broke their leg.
There are some who argue that this type of case would impose a burden on trail managers to inform every trail user of the risks they face in using a particular trail; so the answer is to relieve liability by having a user sign a release. I think this is a slippery slope towards increased liability for trail managers. In some cases, it may be desirable to inform individuals who join clubs and organizations that they must assume their own responsibility for his or her own injuries and damages. Indeed, it could be explained why this type of approach is necessary. The danger is that as trail managers implement higher standards of care, the courts will begin to expect more. If several trail organizations take it upon themselves to provide medical assistance on standby and supply cellular phones and first aid equipment at sites along trails, then the courts may begin to expect this as a minimum standard.
Another option that some trail groups have pursued in the past few years is the provision of insurance. Many large trail associations and user groups have some form of liability insurance. For example, the Bruce Trail Association (BTA) in Ontario has a policy that covers up to $2 million in liability for accidents involving recognized user groups and paid-up members. Similarly, snowmobiling associations in Ontario and elsewhere in Canada have hefty insurance policies paid for by their users. One problem with these insurance policies is that they may attract claims; however, the Executive Director at the Bruce Trail Association, Jackie Winters, says that the BTA has never been sued successfully in 30 years.
Implications for Trail Managers
In sum, the implications of occupier's liability laws for trail managers are as follows:
1. In Ontario, Alberta and BC, legislators have relieved occupiers of strict common law duties of care. In theory, trail managers in these provinces do not have to compensate people who voluntarily assume risk when they use the trail and are then injured. Note that this rule generally does not apply if the trail manager charges a fee.
2. The courts have demonstrated a tendency in recent years to restrict the application of the concept of voluntary assumption of risk. To reduce their liability, some trail managers will want to consider risk management strategies. There is a danger that this approach could eventually lead the courts to establish higher standards of care for all trail managers.
3. Under tort law, a trail manager in New Brunswick, Nova Scotia, Manitoba, PEI, Newfoundland, the NWT, the Yukon and in many US states could be held liable if the following tests are met: 1) the user was injured and suffered damages; 2) the user's injury was "proximately caused" by the trail manager's action; and 3) an applicable duty of care was violated. If any one of these legal tests is not met, the action fails. Generally, the courts have held that low standards of care apply to most recreational users, including trail users. In addition, they tend to look quite closely at the extent of contributory negligence that might apply.
4. When there are dangers or potential dangers on a trail (such as holes or bumps), liability can be reduced if warning signs are properly posted. Trail rating systems, maps and trail user education also can reduce risks in some cases.
5. Where trails are used by motorized vehicles, agreements between trail managers, land owners, relevant governments and responsible, insured recreational associations should be encouraged.
6. Agreements between occupiers and trail managers (and/or recreational organizations) granting access to land should be sought whenever possible to clarify rights and duties.
7. In some provinces, there are laws of special application that must be considered.
1. 1 Dundas St. W., Suite 2502, Toronto, Ont. M5G 1Z3 T. 416-327-7028; F. 416-327-2197
2. This paper is not intended to provide legal advice or a framework for analysis of these laws. If you need legal advice, please consult a lawyer.
3. Some of the other legal and liability issues that should be considered include the following:
4. This principle derives from Veinot v. Kerr-Addison Mines (1974), Supreme Court of Canada decision, 51 D.L.R. (3d) 533.
5. (1989), 68 O.R. (2d) 716.
6. For a discussion of US liability law, see Charles Montagne, Preserving Abandoned Railroad Rights-of-Way for Public Use: A Legal Manual (1989). Washington, D.C.: Rails to Trails Conservancy. Montagne states that by 1989 at least 46 states in the US had passed statutes designed to encourage landowners to permit recreational use.