Can a municipality be found liable under the Occupier’s Liability Act in the absence of an intent to harm or damage? Labanowicz v. Fort Erie (Town)
A favourite pastime of many Ontarians is biking, hiking and exploring the public parks and nature trails operated and maintained by towns and cities. However, it is not uncommon to find that these properties are not maintained well, which can result in personal injury.
The Occupiers’ Liability Act (OLA) is the Ontario law which requires that a person or organization with physical possession and/or responsibility for and control over a property is supposed to take steps to ensure that all persons on the property are reasonably safe while on the premises.
In the case of a municipality allowing recreational use of a public park or trail, the town or city must meet the duty of care as set out in section 4(1) of the OLA. This section states that, where a visitor willingly assumes the risks of entering on the premises, the municipality must not create a danger for visitors with “the deliberate intent of doing harm or damage” and must not act with “reckless disregard” towards visitors.
Labanowicz v. Fort Erie (Town), 2018 ONCA 343
Ontario’s highest court recently interpreted whether intentional harm or damage was required to find a municipality liable under section 4(1) of the Occupiers’ Liability Act. In Labanowicz v. Fort Erie (Town), 2018 ONCA 343, the Court of Appeal concluded that an intention to harm or damage someone was not required to find a municipality negligent. The injured party in this case was a 52 year old woman who lost control of her bicycle as she was riding along a cycling trail. The wooden post of a bollard had been removed, leaving a metal bracket protruding a few inches above the ground on the bicycle trail. The front wheel of the Plaintiff’s bicycle struck the metal bracket causing the Plaintiff to be thrown off her bicycle. She sustained a serious brain injury (link to the brain injury page). The Town of Fort Erie was found completely responsible at trial for the Plaintiff’s injuries because it had acted with reckless disregard for bicyclists on this public cycling trail. On appeal, the Town of Fort Erie argued that, since there was no intention to harm or damage anyone, it should not be found negligent. The Court of Appeal concluded that municipal liability can arise with “reckless disregard” alone. The Town of Fort Erie sought to appeal to the Supreme Court of Canada, but leave to appeal was not granted. Leave to Appeal (permission to appeal) to the Supreme Court of Canada was denied.
To learn more about Occupiers’ Liability Act in Ontario law or to speak with an Ontario personal injury lawyer, call Bogoroch & Associates LLP today at 416-599-1700.