Haliburton (County) v. Gillespie, (2013) 300 O.A.C. 393 (CA)

• Judge: Goudge, Sharpe and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 25, 2013
• Jurisdiction: Ontario
• Citations: (2013), 300 O.A.C. 393 (CA);2013 ONCA 40

Haliburton v. Gillespie (2013), 300 O.A.C. 393 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.013

The Corporation of the County of Haliburton (respondent) v. David L. Gillespie (appellant)

(C54563; 2013 ONCA 40)

Indexed As: Haliburton (County) v. Gillespie

Ontario Court of Appeal

Goudge, Sharpe and Gillese, JJ.A.

January 25, 2013.

Summary:

Section 19(1) of the Off-Road Vehicles Act made it an offence to ride an off-road vehicle without wearing a helmet. Under s.19(2), s. 19(1) did not apply where the unhelmeted rider was an "occupier" of the land. Section 1 of the Act defined "occupier" as "a person who is in physical possession of the land" or a person who has responsibility for and control over the condition of the land or the activities carried on, or control over persons allowed to enter the land". Gillespie was driving an off-road vehicle in Harcourt Park, a 7000 acre parcel of land owned by a corporation. The Park was private property containing 582 half-acre leased lake-front parcels. Gillespie leased one parcel. The Park was gated and the public was denied access unless invited by a leaseholder. Gillespie had exclusive possession of his lease parcel and shared a common right with other leaseholders to use the common area of the Park, where he was riding his off-road vehicle. The trial judge acquitted Gillespie, finding him to be an "occupier" under s. 19(2). The Crown appealed. The Ontario Court of Justice allowed the appeal and substituted a conviction, finding that Gillespie was not an "occupier", because the Corporation, not the individual leaseholders, had responsibility and control over the common area. Gillespie appealed.

The Ontario Court of Appeal dismissed the appeal, affirming that Gillespie was not an "occupier".

Motor Vehicles - Topic 2226.1

Regulation of vehicles and traffic - Snow vehicles and all terrain vehicles - Offences - Helmets - Section 19(1) of the Off-Road Vehicles Act made it an offence to ride an off-road vehicle without wearing a helmet - Under s.19(2), s. 19(1) did not apply where the unhelmeted rider was an "occupier" of the land - Section 1 of the Act defined "occupier" as "a person who is in physical possession of the land" or a person who has responsibility for and control over the condition of the land or the activities carried on, or control over persons allowed to enter the land" - Gillespie was driving an off-road vehicle in Harcourt Park, a 7000 acre parcel of land owned by a Corporation - The Park was private property containing 582 half-acre leased lake-front parcels - Gillespie leased one parcel - The Park was gated and the public was denied access unless invited by a leaseholder - The Corporation's bylaws, which regulated use of common areas in the belief that the Act did not apply, mimicked the Act and required riders to wear helmets - Two leaseholders were employed as part-time security officers to enforce bylaws and escort trespassers from the property - All leaseholders had exclusive possession of their leased parcels and shared a common right to use the common area of the Park - Gillespie was riding in the common area when ticketed for not wearing a helmet - The Ontario Court of Appeal affirmed that Gillespie was not an "occupier" of the common area, so the exemption from wearing a helmet in s. 19(2) did not apply - The Corporation was the "occupier" - It was a separate legal entity from its members - The fact that leaseholders were members of the Corporation did not make them occupiers as well, because only the Corporation had "responsibility for and control over the condition of the land" - Finding otherwise would be inconsistent with the remedial purposes of the Act, which were public safety and a method of control and identification.

Words and Phrases

Occupier - The Ontario Court of Appeal discussed the meaning of the word "occupier" in s. 1 of the Off-Road Vehicles Act, R.S.O. 1990, c. O-4.

Cases Noticed:

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 16].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304, refd to. [para. 17].

Moody v. Toronto (City) et al. (1996), 15 O.T.C. 122; 31 O.R.(3d) 53 (Gen. Div.), refd to. [para. 23].

Lemieux v. Porcupine Snowmobile Club of Timmins Inc. (1999), 120 O.A.C. 292 (C.A.), refd to. [para. 23].

Salomon v. Salomon, [1897] A.C. 22, refd to. [para. 28].

Davies v. Clarington (Municipality) et al., [2010] O.T.C. Uned. 418; 266 D.L.R.(4th) 375 (Sup. Ct.), refd to. [para. 35].

Crisostimo v. Rosenthal (1988), 65 O.R.(2d) 43 (H.C.), refd to. [para. 36].

Werden v. Windview Investments Inc., [1995] O.J. No. 4692 (Gen. Div.), refd to. [para. 36].

Cress v. Beauregard Enterprises Ltd. et al., [2000] O.T.C. Uned. 628 (Sup. Ct.), refd to. [para. 36].

Statutes Noticed:

Off-Road Vehicles Act, R.S.O. 1990, c. O-4, sect. 1 [para. 11]; sect. 19 [para. 10].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 16].

Counsel:

Tyler Hodgson, for the appellant;

Neil Abbot and Sirpal Randhawa, for the respondent.

This appeal was heard on November 16, 2012, before Goudge, Sharpe and Gillese, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Sharpe, J.A., and released on January 25, 2013.