Schneider et al. v. St. Clair Region Conservation Authority et al.

• Jurisdiction: Ontario
• Judge: Feldman, Gillese and Rouleau, JJ.A.
• Date: 26 March 2009
• Citation: (2009), 256 O.A.C. 52 (CA),2009 ONCA 640
• Court: Court of Appeal (Ontario)

Schneider v. Conservation Authority (2009), 256 O.A.C. 52 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. SE.007

Angela Jo-Anne Schneider and Robert Butcher (plaintiffs/respondents) v. St. Clair Region Conservation Authority and the Corporation of the Township of Middlesex Centre (defendants/appellant)

(C48159; 2009 ONCA 640)

Indexed As: Schneider et al. v. St. Clair Region Conservation Authority et al.

Ontario Court of Appeal

Feldman, Gillese and Rouleau, JJ.A.

September 9, 2009.

Summary:

Schneider was injured when she was cross-country skiing off a marked trail in a park owned by the defendant. She sued. Her husband, Butcher, joined in with a derivative claim brought under the Family Law Act (Ont.).

The Ontario Superior Court, in a decision reported [2007] O.T.C. Uned. R52, allowed the action. The court found the defendant liable under s. 3(1) of the Occupiers' Liability Act (Ont.). The court also found Schneider 20% contributorily negligent and apportioned damages accordingly. The court also awarded damages to Butcher. The defendant appealed. Schneider and Butcher cross-appealed.

The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal.

Torts - Topic 3510

Occupiers' liability or negligence for dangerous premises - General principles - Statutory reform - [See first Torts - Topic 3574 ].

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care (incl. evidence) - Schneider was injured when she was cross-country skiing off a marked trail in a park owned by the defendant - The trial judge found the defendant liable under the occupiers' duty of care provided by s. 3(1) of the Occupiers' Liability Act (Ont.) because the "lesser" duty of care established by s. 4(1) ("not create a danger with the deliberate intent of doing harm ... and ... not act with reckless disregard of the presence of the person" on his property) did not apply since the accident premises were not "recreational trails reasonably marked by notice as such" pursuant to s. 4(4)(f) - The Ontario Court of Appeal, after discussing the Act's purpose held that the trial judge erred in concluding that s. 4(4)(f) did not apply - It would make little sense to limit the "lesser" duty of care to users when they remained on the marked trail, only to impose a greater duty of care when they ventured off the trail - See paragraphs 22 to 35.

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care (incl. evidence) - Schneider was injured when she was cross-country skiing off a marked trail in a park owned by the defendant - She had hit a concrete wall hidden by snow - The trial judge found the defendant liable under s. 4(1) of the Occupiers' Liability Act (Ont.) for having acted with reckless disregard of the safety of the users of the park - The Ontario Court of Appeal held that the trial judge erred - The trial judge's finding that the defendant knew or ought to have known that the concrete wall would likely be covered in snow and that the park was regularly used by cross-country skiers did not provide a basis for concluding that the defendant acted "with reckless disregard" - More was required - There was no suggestion that the defendant had specific knowledge that the concrete wall would be hidden from view of cross-country skiers and thus pose a risk of injury to a skier choosing to leave the trail - The concrete wall had been in place for more than a decade, apparently without incident or suggestion that, in winter, it constituted a hazard or trap to users of the park - See paragraphs 36 to 45.

Torts - Topic 3712.6

Occupiers' liability or negligence for dangerous premises - Invitees - Liability of particular occupiers (incl. duty and standard of care) - Public parks, plazas, footpaths, etc. - [See second Torts - Topic 3574 ].

Cases Noticed:

Moloney v. Parry Sound (Town) et al., [2000] O.A.C. Uned. 12; 184 D.L.R.(4th) 121 (C.A.), dist. [para. 16].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 22].

Onyschuk v. Silver Harbour Acres Ltd. (1984), 49 O.R.(2d) 762 (H.C.), refd to. [para. 39].

Whitney v. University College of the Cariboo, [2004] B.C.T.C. 1110; 2004 BCSC 1110, refd to. [para. 40].

Alchimowicz v. Schram et al. (1999), 116 O.A.C. 287 (C.A.), refd to. [para. 40].

Doyle et al. v. Petrolia (Town) (2005), 200 O.A.C. 271 (C.A.), refd to. [para. 40].

Cormack v. Mara (Township) et al. (1989), 33 O.A.C. 55; 68 O.R.(2d) 716 (C.A.), consd. [para. 42].

Statutes Noticed:

Occupiers' Liability Act, R.S.O. 1990, c. O-2, sect. 3(1), sect. 3(2), sect. 4(1), sect. 4(3), sect. 4(4)(f) [para. 13].

Authors and Works Noticed:

Ontario (Attorney General), Discussion Paper on Occupiers' Liability and Trespass to Property (1979), pp. 7 [paras. 24, 25, 27]; 10 [para. 27].

Counsel:

Deborah Burlach, for the appellant;

Anthony F. Steele, for the respondents.

This appeal and cross-appeal were heard on March 26, 2009, by Feldman, Gillese and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Rouleau, J.A., and released on September 9, 2009.