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In our December article for Municipal World, we wrote about municipal liability to cyclists for failing to maintain roads in a proper state of repair. Municipalities could similarly find themselves liable as the occupiers of recreational path systems, if the trails are not adequately maintained.

The standard a municipality must meet in ensuring the safety of recreational trail users varies by province. Where Occupiers’ Liability statutes exist, they may require the occupier to take “reasonable care” or may only require the same degree of care as must be shown to a trespasser, namely that it may not act with “reckless disregard” of that person’s presence on their property. The common law is in effect where there is no such statute.

 

“Reasonable Care”

 

What constitutes “reasonable care”? In Christenson v. Calgary (City), Alberta’s Court of Appeal upheld damages for two in-line skaters, who were severely injured attempting to negotiate a curve at the bottom of a steep hill. The City was denied leave to appeal to the Supreme Court of Canada. At the time, the Alberta Occupiers’ Liability Act imposed an affirmative duty on the City to take reasonable care to ensure that trail users were reasonably safe in the circumstances.

 

The majority of the Court of Appeal concluded that the City knew the path was increasingly being used by in-line skaters, but had not taken their safety into account. The City had not properly consulted with the in-line skating community when renovating its pathway in 2001, nor reasonably considered their needs, nor placed adequate warning signs until after the accidents. Changing the route of the path would be very expensive and unlikely to be approved due to environmental issues, but there was no evidence that the City had considered other safety options. The majority agreed that the City did not take reasonable care, thus causing the plaintiffs’ injuries.

 

Alberta amended its Occupiers’ Liability Act in 2003 (after the accidents), to lower the standard of care owed to recreational users. For adults, an occupier is now only liable for harm that that results from its wilful or reckless conduct. Where the occupier knows, or has reason to know, that a child is on its premises, and that the premises create a danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.

 

Since children frequently use municipal recreational trails, Albertan municipalities must still design and maintain their trails so they are “reasonably safe” for children.

 

“Reckless Disregard”

 

To encourage the creation of recreational trails, the Occupiers’ Liability statutes of British Columbia, Manitoba, Ontario, Prince Edward Island, and Nova Scotia specifically restrict the duty owed by owners and occupiers to recreational trail users. Trail users are deemed to have willingly assumed the risks associated with the trails. The Ontario Court of Appeal described the rationale for this in Schneider v. St. Clair Region Conservation Authority. Thus, a municipality that maintains recreational trails in these provinces only have two duties: not to create a danger with the deliberate intent of doing harm and not to act with reckless disregard of the person’s presence.

 

What constitutes reckless disregard in trail maintenance and construction was considered by the Ontario Superior Court of Justice in Herbert (Litigation Guardian of) v. Brantford (City). An experienced cyclist was rendered quadriplegic after riding off a recreational trail to avoid colliding with another cyclist. The Court applied the definition of “reckless disregard” in Schneider – “doing or omitting to do something which he or she should recognize as likely to cause damage or injury to [the person] present on his or her premises, not caring whether such damage or injury results”.

 

There is a certain degree of risk inherent in user on a recreational trail, and an occupier is entitled to assume that users know and appreciate the usual and common dangers. Users must only be protected from the unusual dangers:

 

Whatever this danger, it is clearly contextual. It may not be obvious. It may be hidden or concealed. It may contain an element of surprise for the user such that response times are diminished, if not eliminated. It may be that the user cannot extricate himself or herself from the situation. It may be of such a nature that, as some jurists have described … it is a “trap”. The failure of the occupier to address a known danger of this magnitude would constitute “reckless disregard”.

 

The Court found that the City knew there was a danger of collision between cyclists at the location of the accident, and the lack of a recovery zone (an area which gives a cyclist a chance to regain control if they leave the path) made it a particularly dangerous stretch of path. The City was also aware that the area required seasonal maintenance, given annual flooding and winter degradation. The City did inspect this stretch of path every 30 days, but these inspections did not report the spalling on the path at the time of the accident. The Court concluded: “… the failure of the inspection system to pick up on and address the spalling in such a dangerous location, given the absence of a free/recovery zone was a “reckless disregard”.” The City was held 40% responsible for the accident.

 

While the duty to recreational trail users is lower than that owed to road users, municipalities must still take care to ensure that the trails are reasonable safe for use. This is particularly true where the municipality knows of a danger that trail users may be unaware of.

 

Meredith James and Dianne Saxe

This article was first published in Municipal World.

 

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