[22] At common law, persons entering an occupier's premises were traditionally defined as invitees, licensees or trespassers, and the duty of care owed by the occupier to such persons was determined on this basis. In 1980, the legislature enacted the Occupier's Liability Act, S.O. 1980, c. 14,[1] with the intention of replacing, refining and harmonizing the duty of care owed by occupiers to visitors on their premises: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at p. 475.
[23] The Act was continued in the consolidated statutes of 1990, and remained substantively the same. In Waldick, the Supreme Court explained that the goals of the Act were "to promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe": p. 477.
[24] The appellant has argued that s. 4 of the Act, and s. 4(4)(f) specifically, was intended to encourage occupiers to make their lands available to the public for recreational use. I agree. In a discussion paper published by the Ministry of the Attorney General prior to the enactment of the Act in 1980, Discussion Paper on Occupiers' Liability and Trespass to Property (Toronto: Policy Development Division, 1979), the Attorney General highlighted the tension between the growing participation of urban residents in outdoor recreational activities and the outdated scheme governing occupiers' liability, at p. 7:
The desirable growth of outdoor recreational activities has had some undesirable effects. Urban residents have flocked in ever increasing numbers to the countryside. In the countryside, farmers and other occupiers of land have become fearful of being sued for damages by persons who might be injured while engaged in recreational activities on their land.
[25] The Attorney General also expressed the concern that the prevailing common law approach to occupiers' liability penalized the benevolent occupier, by imposing a greater duty of care in relation to persons permitted to use the land than to trespassers. At p. 7 of the Discussion Paper:
[A]n occupier owes a greater duty to persons he permits to use his land for recreational activities than he does to trespassers. This penalizes the occupier who is willing to permit recreational activities on his land. It discourages benevolence.
[26] The Attorney General circulated a draft of the proposed Act as Appendix B to the Discussion Paper. Much like s. 4 of the current Act now does, the proposed legislation suggested imposing a lesser duty of care on occupiers of certain types of premises, including "marked recreational trails".
[27] Imposing a lesser duty of care on occupiers of recreational trails of all kinds appears to have been justified on the basis that the existence and availability of these trails was heavily dependent on the use of private lands: see Discussion Paper, at p. 7. As a result, changes to the law limiting occupiers' liability were warranted to encourage occupiers to make their land available for recreational activities. This approach was considered reasonable because, as explained in the Discussion Paper, at p. 10:
[P]ersons permitted to use the land, without charge, for recreational activities…have usually assumed that they are responsible for their own injuries, though the existing law would technically consider them as licensees. They are grateful for the privilege being extended to them. The proposal that such entrants would assume their own risks seems to accord with usual expectations of those who pursue recreational activities on private lands.
[28] In their current iteration, ss. 4(1), 4(3)(c) and 4(4)(f) of the Act work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity and without payment of any fee is deemed to have willingly assumed the risks associated with the activity. In such cases, the duty of the occupier to the person is "to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property."
[29] In my view, it is clear that the legislature intended that s. 4 of the Act encourage occupiers to promote the use of recreational trails on their land by members of the public. Against this backdrop, the central question on this appeal is whether the trial judge erred in finding that the Park was not a recreational trail for the purposes of s. 4(4)(f) and that the lesser duty of care established by s. 4(1) did not apply.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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