[N8 v2.0]

:nuts:


Lawsuit a threat to trails
CYCLISTS FEAR FOR SPORT
Toronto Sun | April 17 | TRACY MCLAUGHLIN

A MOUNTAIN biker who launched a million-dollar lawsuit after falling off his bike has lit a fire under Collingwood area bike enthusiasts who fear the suit will close their trails. James Leone is suing the Toronto Outing Club and its Kolapore Uplands Wilderness Ski Trails Committee as well as the Town of The Blue Mountains, the Grey-Bruce Trails Network and the province for an accident he had while mountain biking last August.

The 31-year-old personal injury lawyer from Toronto claims he suffered fractured vertebrae and several soft-tissue injuries when his bicycle came to an abrupt stop after hitting a hole in the trail, sending him over the handlebars.

"It's a crying shame," said "die-hard" mountain biker Mark Derrick, who helped organize a meeting of concerned bikers in Collingwood yesterday.

"We have hundreds of miles of amazing trails in this area and most of us realize that if you take on this sport, you take on a challenge and a risk." He said his wife, Lynn, has dislocated her shoulder by falling on the trails twice but never considered a lawsuit.

"This suit does cause a concern that the trails will be threatened," said trail specialist with the International Mountain Bike Association, Laura Woolner. "The case could set a precedent for other cases in Ontario and that could have an enormous impact on non-profit clubs who will have to purchase huge amounts of insurance to keep trails open. Essentially it could shut them down," she said.

 

[binary visions]

Personal injury lawyers aren't the problem.

Dumbass f**kwads who can't take responsibility for their actions are the problem. These people should be sterilized so they don't pass their piss-poor morals and lousy sense of accountability to future generations.

 

[MTB_Rob_NC]

Personal injury lawyers aren't the problem.

Dumbass f**kwads who can't take responsibility for their actions are the problem.

Looks like in this case, they are 1 in the same

The 31-year-old personal injury lawyer from Toronto

 

[N8 v2.0]

Entertaining commentary on the subject: http://forums.fark.com/cgi/fark/comments.pl?IDLink=1446610

 

[Echo]

I think it's odd that the Toronto Sun can't spell "Toronto".

 

[N8 v2.0]

I think it's odd that the Toronto Sun can't spell "Toronto".

It's the canadian spelling?

 

[binary visions]

Looks like in this case, they are 1 in the same

...but the point is that being a personal injury lawyer was not what caused him to sue, it was the fact that he has no sense of morals or accountability.

 

[berkshire_rider]

Personal injury lawyers aren't the problem.

Dumbass f**kwads who can't take responsibility for their actions are the problem. These people should be sterilized so they don't pass their piss-poor morals and lousy sense of accountability to future generations.

I agree 100%, but why don't the judges throw BS lawsuits out, and tell these people to GTF out of their courtroom? It seems part of the problems are because it has happened in the past, in other courtrooms.

 

[Ciaran]

...but the point is that being a personal injury lawyer was not what caused him to sue, it was the fact that he has no sense of morals or accountability.

Exactly what it takes to become a personal injury lawyer. Sure, there are good lawyers, but you have to admit that there are a ton of these personal injury lawyers that encourage people to sue.

 

[binary visions]

you have to admit that there are a ton of these personal injury lawyers that encourage people to sue.

Obviously, but that's no different than any other market. Alcohol companies encourage people to drink. Food services encourage people to eat. Stores encourage people to buy.

Personal injury lawyers are no more to blame for the problem than Absolut is to blame for alcoholism, McDonald's is to blame for obesity, or Wal-Mart is to blame for rampant consumerism. They're simply filling an open market, and every one of those markets is fine except that it's driven to excess.

Self-control, moderation, responsibility for one's actions, morality... If these things were held in higher regard, people might be less inclined to stoop to suing when they've screwed themselves up.

 

[bigginsis]

well said!

 

[ALEXIS_DH]

anybody else here think this may be due to the laws regarding this kind of stuff????

after all, with some good legislation all this lawsuit non-sense may go down to "rest of the world levels".. lawyers and people play within the rules.. maybe they are not to blame that much for the problem but instead the rules themselves that allow that stuff to happen???

 

[Hawkeye]

How is it the trails fault he bought a Pacific and had a head tube failure?

Did the trail call himout to ride it? (sorry they do that to me, sometimes)

 

[Barbaton]

Hate to say this, and I'm not a lawyer, but it seems like his case might be as valid as the many many lawsuits we have from people who fall and hurt themselves in the parking lot and sue the store. If those cases are considered it doesn't seem that this bike case shouldn't. Not that I agree with either, but the courts seem to find legal merit to many of those cases...

 

[MikeD]

Heh, I have a response, but it'll get this thread sent to politics within a nanosecond, plus take it off topic.

Oh, well, life's a bitch-here goes:

I'm feeling the effects of a lawsuit like that as a trail user...the Big Bear closure has really been a bummer for all the SoCal downhillers. I 100% agree that something should be done to prevent lawsuits over things that should be matters of individual responsibility. (I could go on and on about the Big Bear suit...ie, the rider accepted the conditions of the course, knew what the course markers were, had no objections to them until he crashed into one, wasn't carrying long-term disability insurance, etc...and in the end, I'm convinced Snow Summit wanted to end DH racing anyhow and this was just a convenient method for them to do so with apologetic grace.)

Anyhow...to the subject of "tort reform" as put forth in the national political dialouge (sorry, N8, since it was you who posted I suppose I can't avoid the free association game)...I don't think for a MINUTE that the Bush administration is thinking about trail users who suffer or individual homeowners who get sued for ice on their sidewalks.

I suspect, and will gladly hear feedback from anyone with knowledge or at least a coherent opinion, that the "tort reform" initiative is purely intended to help relieve corporations from potentially disasterous financial consequences associated with the decisions they make about their products. I'd also think it's part of an effort to get health care costs back in line vis a vis malpractice suits. (Not a bad thing, mind you.) But the absurd cases of personal injury suits are being used to cloak a larger initiative, IMHO.

So there's a fine line here...there are some absurdities that need to be curbed, but consumers as a whole have only one reliable way to enure that they're not sold shoddy and dangerous products, and that's the threat of lawsuits, especially class-action lawsuits. And consumers do indeed have a RIGHT to expect that what they're sold isn't dangerous. We don't live in a world where there's an option to not consume...you can't build a child safety seat yourself, nor can you as a consumer judge the quality of a product like that. We all can't be and shouldn't be expected to be product safety engineers; caveat emptor simply shouldn't apply with regard to the safety of things we buy.

I'd hate to see consumers hand over their rights willingly because of a relative minority of high-profile absurdities. (and supposed absurdities...see the much-lauded-by-Republican-pundits John Edwards "jacuzzi case," dismissed as a frivolous lawsuit in passing, but actually involving Edwards representing a family whose daughter had her intestines sucked out of her body by a drain/filter in a pool...a filter which had a known defect but was not recalled.)

No, I didn't vote for Nader, thanks.

MD

 

[JoeRay]

How's about sterilising the personal injusry lawyers to. My vote is a swift :nuts: to make them feel just a small percentage of the pain they are inflicting on society.

Man don't get me started on this issue, the lawyers knowingly bump the claim up to a certain level and then develop BS juastification cause they know that if the claim is under about 20k or so it aint worth their time. :mumble: :mumble: :mumble:

So what may have been a claim for a new bike and helmet from Walmart becomes a soft tissue injury with whiplash and emotional scarring. I mean WTF emotional scarring do you get from crashing on your bike, get back on the F'n thing and keep going! :mumble: :mumble:

I'm all for a legal system that places responsibility for your actions on you. Know the risks, play with the risks but be prepared for that 0.01% of the time when things go pear shaped.

 

[TRA]

Greetings Folks,

The Kolapore vs. James V. Leone lawsuit is still ongoing. There have
been new developments since you posted up about it in 2005.

I've attached some links that go to updated information (and active
threads) on mtbr.com addressing this issue. Some gents have obtained
some of the legal documentation which gives some interesting details.

http://forums.mtbr.com/showthread.php?t=274784
http://forums.mtbr.com/showthread.php?t=74213
http://www.nsmb.com/shore_news/beardwinter_04_05.php

So if you can, give those a read. The most interesting snippet I've
taken in part from
http://forums.mtbr.com/showthread.php?p=2936127#poststop :

----------------------------------------------------------------------
First of all I have the notes filled as Leone v. University of Toronto,
Barrie Court File No. 04-B8059, heard before the Ontario Superior
Court of Justice on August 3 and September 6, 2006, with judgment on
September 25, 2006.

There are some important items that are mentioned in the “Findings”
section of the document, that are useful for the public and land owners
alike to know about to provide ever increasing wisdom in the world we
live in.

- Always put up signage indicating users of trail must do so at own
risk, and that trails are not regularly maintained, inspected, and may
contain hazards. Otherwise you could be held responsible for accidents
if you own the land or had a hand in building the trails.

- Signage must be at all points of trail entry, not just the head of
trails. Mr. Leone apparently entered the trails system on a side road
and therefore saw no signs.

- Even though you may only allow trails to be used for cross country
skiing during the winter months, the fact you may be doing trail
maintenance during other months of the year means that the trails are
your responsibility all year round (unless you put up signage mentioned
in first point, or clearly put up signage prohibiting other specific activities).

- If you know that other types of users are using your trails for other
activities than intended, like mountain biking, ATV’s, camping, or
horseback riding, then you have a duty of care (ie. responsibility) for
these people. Unless, of course, you put up signage as mentioned in
first point.

- If someone has an accident on your property, always make sure you
act by doing something to prevent it from happening next time.
Otherwise you will be accused of negligence if you do nothing.

- Even though a hole may be created by an ATV on your trails, causing
someone to trip over it and break their spine, you are responsible for
this hazard and fixing it (unless you have clear signs indicating that
ATV’s are not allowed, or again, if you have signage as mentioned in
first point).

From the statements of the court mentioned in this document,
it appears that Mr. Leone has a good case to win so far.
----------------------------------------------------------------------

 

[binary visions]

Thanks for the update.

- Signage must be at all points of trail entry, not just the head of trails. Mr. Leone apparently entered the trails system on a side road and therefore saw no signs.

Dumbass f**kwads who can't take responsibility for their actions are the problem. These people should be sterilized so they don't pass their piss-poor morals and lousy sense of accountability to future generations.

What a douche. Gee, I didn't see a frickin' sign so it's not my fault I got hurt.

 

[TRA]

Well, thanks for not jumping on me!

I can't believe the number of folks that get upset about "newbs bumping old threads". Sheesh

 

[binary visions]

Most of the time the n00bs get jumped on, it's because they didn't even realize the thread was old. At least you had a relevant piece of new news to add to it

BTW, welcome to the . Try not to step in the poo.

 

[firetoole]

I say we counter sue for physiological damage, due to our trails being taken away.

 

[HypNoTic]

As far as I know, the case was rejected on the base that mountain biking have inherent risks and roots/rocks are to be expected in a mountain-bike trail. The guy encountered rocks in the trails previously and knew they were present but ignored that fact and hurt himself.

Canada is not as affected as US in term of frivolous lawsuits.

-HypNo
Quebec IMBA rep
ADSVMQ.org prez

 

[TRA]

If I remember correctly the suit is 'severable' and the irrelevant/rejected portions were dismissed. Due to this 'severability' it is proceeding on one or more other counts though. It's not like he's suing just one person for just one thing. He threw sh1t at the wall to see what sticks, some of it didn't, and now he's gonna pursue what did.

 

[TRA]

Ok... I feel like I've typed this a million times, but grab a coffee or tea since the following is a very long read. It's a copy of the summary judgement in the case sent to me by a kind soul.

--------------------------------------------------------------------
Between James Leone, Plaintiff, and University of Toronto Outing Club, Kolapore Uplands Wilderness Ski Trails Association and Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Defendants

INDEXED AS: Leone v. University of Toronto

Barrie Court File No. 04-B8059

Ontario Superior Court of Justice

JUDGES: J.H. Jenkins J.

[2006] O.J. No. 4131; 2006 ON.C. LEXIS 4046

DATE INFORMATION: August 3 and September 6, 2006 Judgment: September 25, 2006.

JUDGMENT DATE: September 25, 2006

COUNSEL:
[*1]

Susan Healey, for the Plaintiff

Timothy Alexander, for the Queen in Right of Ontario

Shannon Parsons, for the University of Toronto Outing Club and Kolapore Uplands

JUDGMENT:
REASONS FOR JUDGMENT

[1] J.H. JENKINS J.:-- This is a motion by the defendant, Her Majesty the Queen in Right of Ontario for the following relief:



(a) an order dismissing the plaintiff's action as against the Crown;

(b) an order dismissing the cross-claim of the University of Toronto Outing Club (UTOC) and the Kolapore Uplands Wilderness Ski Trails Committee (Committee) as against the Crown;



[2] The defendant, University of UTOC and Committee, bring this motion for the following:



(a) summary judgment dismissing the plaintiff's claims relating to liability for the plaintiff's fall;

(b) an order dismissing the cross-claim of the defendant Her Majesty the Queen in Right of Ontario against it.



[3] The grounds for the motions are:



(a) Rules 20.01(3), 20.04(2)(a), 20.04(4), 20.05, 37, 39, and 51.06 of the Rules of Civil Procedure;

(b) There is no genuine issue for trial with respect to the plaintiff's claims against the Crown nor against the other defendants respecting the Occupiers' Liability [*2] claims;

(c) UTOC and Committee claim they were not owners or occupiers of the lands on which the plaintiff alleged he fell.



[4] UTOC and the Committee claim they were not owners or occupiers.

[5] The Crown was the owner of the lands upon which the plaintiff alleges he fell.

ADMITTED FACTS

[6] On August 1, 2004, James Leone (Leone), the plaintiff, sustained a compression fracture of his thoracic spine as a result of being thrown from his bicycle when he came to an abrupt stop while mountain biking on a trail in the Kolapore Uplands located in the Collingwood Township.

[7] Leone was an experienced cyclist and had utilized this area for cycling on approximately four other occasion.

[8] The cause of the accident apparently occurred on a grass covered hole describe by Leone at approximately 1 foot in depth at its deepest. The Crown's investigator, measured a depression at approximately 22 inches in width, 36 inches long and 9 inches in depth at it deepest point.

[9] For a number of years the Crown had issued a permit to Kolapore Uplands Wilderness Ski Trails at a cost of $ 26.75 to permit Committee to operate ski trails during the winter months over property where Leone [*3] allegedly fell. This permit was subject to a variety of conditions including an indemnification agreement to the Crown. This permit was pursuant to a Free Use policy exercised by the Ministry of Natural Resources (see Motion Record of the Crown para. 2 a-c). The parties agree that the Proceedings Against the Crown Act R.S.O 1990 c. P.27 s. 5(1)(c) and 7(3). Section 7(3) provides "no proceedings shall be brought against the Crown under clause 5(1)(c) unless notice required by s.s. (1) is served on the Crown within 10 days after the claim arose". Section 5(1)(c) quotes as follows:



(1) Except as otherwise provided in this Act, and despite sections 11 of the Interpretation Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,

(c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property.



[10] Leone's law firm sent out a letter 11 days after the incident on August 12, 2004.

[11] Leone entered the lands at an access point from the 6th Side Road. There were no signs at this point where the trail crossed the road.

[12] The Crown admits that [*4] it does not post any signs in the Kolapore Uplands with respect to the trails. Nor does it require the Committee to post any signs on the trails or at the entrance points.

[13] The Crown's land policy for recreational trails requires that the land use permits issued to the Committee contains a notice under the Occupiers Liability Act that requires wording acceptable to the Ministry. "The signs must indicate that trail users use the trail at their own risk." These signs erected by the Committee (see Motion Record E p.40) indicates that they are maintained by volunteers. Absent from the sign is wording that indicates that the trails are to be used at the public's own risk or that they are maintained or inspected only during certain months of the year.

[14] The Kolapore Uplands contains a series of trails frequented by cross-country skiers, horseback riders, ATV users, cycles, hikers and rock climbers. The use of summer trails in the summer has met or exceeded the use of the trails in the winter since 2001.

[15] The Crown represented by the Ministry of Natural Resources (MNR) issued a land use permit to the Committee effective December 1 to April 15. This contains the following: [*5]



1) to ensure that the trail users travel only on the marked trails;

2) to indemnify the Ministry for any costs, damages or losses;

3) to undertake provisions of the Occupiers' Liability Act, as appropriate.



[16] There is no written policy that specifically addresses the MNR's maintenance or inspection of the Kolapore Trials.

[17] The Crown is unaware of what the Committee does to inspect or maintain the trails. The Crown has never posted signs warning cyclists that the trails were not inspected or maintained year round, and did not to require the Committee to post warning signs.

[18] The Committee does nothing formally to inspect or monitor the trails during the spring and summer.

[19] The Committee organizes work parties to inspect and maintain the trails over approximately three to four weekends, which has historically occurred in October or November.

[20] The volunteer workers include members of the UTOC and the committee, and on rare occasions, high school students. A trail captain goes out with each trail party, who is considered to have expertise by virtue of being along-term volunteer.

[21] In addition to blazing trails, the UTOC trail work consists [*6] of a pre-season inspection, inspecting and repairing bridges, inspecting and repairing signs, removing the fallen trees and branches, removal of seriously leaning trees, clearing with hand saws and pruners on the sides of the trails, weed-eating on the sides of the trails, removing rocks, and any further additional specific work tasks raised by visual inspection.

[22] The latest edition of the trail map created after the initiation of this lawsuit, contains a warning that the trails are very rocky and erosion caused by mountain bike use has made the rocks increasingly prominent. Wheel tracks created by all-terrain vehicles have been observed by the Committee's witness, on that portion of the trail where the incident occurred. Ruts created by ATVs could be close to one foot in depth on some of the trails.

[23] Leone was hospitalized for 4 days and upon his discharge was taking pain relief medication continuing into October. He suffered pain in September and October, using a cane for walking until the end of October. Dr. Freedman, Leone's doctor is of the opinion that for the first 10 days following the accident Leone would not be behaving in a normal manner. His pain was not well [*7] controlled and he was sleep deprived.

[24] On September 7, 2004, Leone wrote to a solicitor in Meaford requesting that a title search be performed. He consulted with counsel on September 10, 2004, for the first time. On September 17, 2004, he learned that the area of land on which the accident occurred was owned by the Crown and reported this fact to his counsel. On the next working day the plaintiff's counsel wrote to the Crown by way of notice his claim.

THE LAW

Test for Summary Judgment

[25] Summary judgment is granted where: (a) there is "no genuine issue for trial"; or (b) where the parties consent to having all or part of the claim determined by summary judgment and the court is satisfied that summary judgment is appropriate.

[26] Summary judgment will only be granted where it is clear that a trial is unnecessary. To obtain summary judgment, the moving party must satisfy the court that all the requirements of Rule 20 have been met.

[27] When hearing a motion for summary judgment, the court's function is not to resolve issues of fact but to determine whether genuine issues of fact exist.

[28] On a motion for summary judgment, "the court will never assess credibility, [*8] weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial".

[29] On a motion for summary judgment a court must take a "good hard look" at the merits of the action to determine whether on the materials before it there is a genuine issue with respect to a material fact regarding resolution by a trial judge.

[30] On a summary judgment motion, a responding party is not entitled to sit back and rely on the possibility that more favourable facts may evolve at trial. To avoid summary judgment, a party is required to put its best foot forward. In particular, it is not sufficient for the responding party to say that more and better evidence will or may be available at trial. The court is entitled to assume that the record contains all of the evidence that will be presented at trial.

 

[TRA]

(Cont'd due to limits on lengths of post)

----------------------------------------------------------------------
[31] The moving party must do more than show that there is no genuine issue for trial. In the absence of a genuine issue for trial, the matter still cannot be decided by way of summary judgment if the respondent proves that his or he claim has a "real chance of success".

OCCUPIERS [*9] LIABILITY ACT

Occupiers Duty



3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that person entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

4(1) the duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person 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.

4(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1);

(d) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person.

4(4) The premises referred to in subsection (3) are,

(a) a rural premises that is,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises

(f) recreational [*10] trails reasonably marked by notice as such.



[32] The UTOC and Committee do not own the land upon which Leone allegedly fell. The Committee operates cross-country ski trails in the Kolapore Uplands during winter months pursuant to a land use permit issued by the MNR. The permit extends from December in each year until the following April 15.

[33] The Kolapore trails are accessible to the public during the summer months pursuant to the Free Use policy of the MNR.

[34] UTOC and Committee had scheduled a work day to prepare the trails for winter use. The first schedule work day was August 21, 2004.

[35] Leone would have passed a sign upon entering the Kolapore Trails which was erected by UTOC and Committee. The wording of the sign is duplicated as follows:



Kolapore Uplands Wilderness Ski Trails for safety reasons, please:

No dogs, no walking on trails, no snowmobiles

Yield to skiers going downhill

These are challenging ski trails. They are not groomed or patrolled. No facilities are available.

Less difficult ski trails are located in the county forest section (entrance on west side at road intersection 3.7 km south)

These trails are maintained by volunteers. Donations for [*11] materials are appreciated. For map purchase or further information write:

Outing Club, Box 6647, Station A, Toronto, Ontario, M5W 1X4



ISSUES

[36] The following issues are raised on this motion:



(i) do the premises in question constitute rural premises as described in s. 4(4)(a) of the Occupiers' Liability Act (the "Act"), thereby deeming the plaintiff to have willingly assumed all risks associated with entry thereon pursuant to s. 4(1) of the Act;

(ii) are the premises in question recreational trails reasonably marked by notice as such as set out in s. 4(4)(f), thereby deeming the plaintiff to have willingly assumed all risks associated with entry thereon;



(iii) if the answer to either of the above questions is yes, have the defendants as occupiers discharged their duty of care under s. 4(1) of the Act to not act with reckless disregard of the presence of the plaintiff or his property?



(iv) if the answer to both questions (i) and (ii) above is no, have the defendants discharged their duty of care under s. 3(1) of the Act to see that persons entering on the premises are reasonably safe while on the premises;

(v) has the plaintiff complied with s. 7(3) of [*12] the Proceedings Against the Crown Act by providing notice of his claim within ten days after his claim arose.



POSITION OF THE PARTIES

[37] It is the position of the Crown that it acknowledges that the MNR for which the Crown is responsible, is the owner of approximately 4,900 acres of land in the Kolapore Uplands. It owns approximately eighty-eight to ninety percent of all land in Ontario and cannot supervise the condition of all of these lands. The Crown's Kolapore lands are governed by MNRs Free Use Policy, which identifies activities or uses of public land under control of the Crown which do not require land use occupation authority, permission or payment of fees under the Public Lands Act.

[38] Among the authorized uses permitted by the Free Use Policy are "transient visitation and travel" on Ontario's public lands including activities such as hiking, boating, canoeing, cross-country skiing, water skiing, swimming, the operations of off-road vehicles (e.g. snowmobiles, all-terrain vehicles, bird watching, horseback riding, etc).

[39] In response to public demand to use Crown land for recreational trails the Crown developed Policy No. LM 7.01.06 titled Authority for [*13] Recreational Trails on Crown Land ("Recreational Trails Policy").

[40] The Recreational Trail Policy sets out guidelines for the review and approval of trails to be developed by members of the public on Crown land. The policy does not make the Crown responsible for the maintenance of the trails and in fact specifically provides that it is not responsible.

[41] Comprehensive Management Plans can be developed for public lands such as the Kolapore Uplands for a number of reasons, including situations where there are concerns regarding potential conflicts between users of the lands, which in this case include cross-country skiers, mountain bikers, trail bikers, ATV users and horseback riders.

[42] While the MNR is of the opinion that a Comprehensive Management Plan was required for the Kolapore Uplands the funding for its development is not available. Even in the event that a Comprehensive Management Plan had been developed, the Crown's Kolapore Lands would not have maintained the trails, inspected them or erected any signage with respect to their use.

[43] The Crown's position is that the premises where Leone fell are rural premises and vacant or developed premises and are forested [*14] or wilderness premises. Alternatively, Leone fell in recreational trails reasonably marked as such. If any one of these factors are present then the Crown has not breached its duty and Leone must establish that the Crown created a danger with a deliberate intent of doing harm or damage or not to act in recklessness disregard to Leone. Pursuant to s. 4(1) of the Occupiers Liability Act R.S.O. 1999, c. 0.2.

[44] The Crown argues that Leone failed to give notice pursuant to s. 7(3) of the Proceedings Against The Crown Act. This notice must be served upon the Crown within 10 days after the claim arose. An action brought against the Crown that does not confirm to the notice requirement is a nullity. It is further submitted that the discoverability principle does not apply to the Proceedings Against The Crown Act. Alternatively, a plaintiff seeking to rely on the discoverability principle based on a physical problem, mental or psychological condition must produce evidence that they were unable to communicate with a lawyer or other intermediary or to convey instructions to give the required notice.

THE POSITION OF THE UTOC AND COMMITTEE

[45] UTOC and Committee do not own [*15] any portion of the Kolapore Uplands. Their use is restricted to the conditions of their permit which provides as follows:



"This permit will automatically terminate, and all rights of the permittee will expire, on the stated termination date ... This condition cannot be waived by the Crown and, if further use of the land is desired, an application for a new Land Use Permit must be submitted."



[46] The Kolapore Trails are accessible to the public during the summer months pursuant to the "Free Use" policy of the MNR. The UTOC and Committee cannot restrict access to the Kolapore Trails during the summer months, nor can they restrict the type of activities carried on by persons entering the trails in summer.

[47] There is no evidence that any member of the UTOC or Committee intentionally created a hazard or danger for trail users.

[48] The UTOC and Committee rely on s. 1 of the Occupiers Liability Act, an occupier has:



a) physical possession of the premises; or

b) responsibility for and control over the condition of the premises or the activities carried on, or control over persons allowed to enter the premises.

Occupiers' Liability Act, R.S.O. c. O.2, s. 1.

[*16]

[49] Alternatively, the UTOC or Committee argue that Leone fell on a "recreational trail". Leone therefore is deemed to have willingly assumed all risks of bicycling in this area. This would impose the burden of Leone establishing that these defendants acted with reckless disregard for the interest of Leone in these circumstances.

 

[TRA]

(cont'd due to limits on lengths of post)

--------------------------------------------------------------
POSITION OF THE PLAINTIFF

[50] Leone's position is that s. 3(1) of the Occupiers' Liability Act R.S.O. 1960 c. 0.2 is applicable and not s. 4(1). He takes the position that the premises are not "vacant" and they are not "forested" or wilderness premises" on recreational trails pursuant to s. 4.

[51] Alternatively, he argues that the defendants have acted in a "reckless disregard" of his presence on this property.

[52] Respecting the issue as to whether or not the premises in question were "rural" or whether the premises were "vacant or undeveloped premises" or whether the premises were "forested or wilderness" premises, Leone refers to a letter of July 7, 1993, to the MNR from Kolapore Ski Trails Committee (at Tab 1 E of the Responding Record of the Plaintiff).



In letter we sent in 1990, we raised initial concerns about the potential impact [*17] of mountain biking on the ski trails. Since that time, mountain biking use on the trails has dramatically increased, and has reached the point where the parking lot on Grey Road 2 is occasionally as full in the summer as it is on a winter weekend. While working on the trails, we have encountered groups of as many as 40 mountain bikers.

The high level of bicycling use on trails which were never intended for summer use is starting to have significant detrimental effects. The use is causing erosion on slopes and is creating ruts which fill with water in moister soils. We are very concerned that if the current trend of dramatically increasing bicycling continues, portions of the trail may become unusable for skiing.



[53] In the letter dated August 11, 2001, from Kolapore to the MNR:



Trails Status

"Trail use has continued to increase at the Kolapore Uplands in both summer and winter with the past winter receiving particular heavy use as a result of the excellent skiing conditions. Mountain biking, and the associated impacts, are continuing to increase. We believe that summer use of the trails is now substantially higher than winter use."



[54] By letter dated September [*18] 21, 2001, from the MNR to Kolapore Uplands:



"We agree with the Committee that a comprehensive management plan is required for the area that considers the needs of all users. Work is underway to establish the appropriate planning process to be followed so that all issues and concerns are fully considered. Your letter is a good start at identifying those issues."



[55] On March 20, 2003, Kolapore wrote to MNR and stated:



"As you are probably aware, in 2002, after years of escalating problems associated with uncontrolled camping, overnight use was finally brought under reasonable control by the prohibition of camping and overnight parking, combined with vigorous enforcement by the OPP. Unless the proposed parking lot is subject to comparable restrictions and enforcement, the original problems are likely to return and escalate. This issue should have been explicitly addressed in the project proposal, since it is a key concern to the area residents and others who are concerned about the environmental impacts in the Metcalfe Rock area."

"In closing, we would once again encourage the Ministry of Natural Resources to initiate a comprehensive planning process for the Kolapore Uplands. [*19] With the rapid development that is occurring in the southern Georgian Bay area, use is likely to increase substantially in coming years. It would be desirable to develop a management strategy before the current issues become even more severe and irreversible damage to the environment occurs."



[56] It is the position of Leone that although these premises may at one time have been considered "rural, vacant or undeveloped or forested or wilderness premises" pursuant to the Occupiers' Liability Act at the time of this incident August 1, 2004, the premises could no longer be described in these generic terms.

[57] Alternatively, Leone argues that the defendants have acted with reckless disregard to the presence of him by failing to act. In other words, the decision to do nothing in the face of a statutory duty is prima facia proof of negligence. Leone argues that operational decisions to not inspect or maintain the trails can give rise to negligence.

[58] It is Leone's position that the Supreme Court of Canada has ruled that statutory standards can be highly relevant to the assessment of reasonable conduct in a particular case. Further, where a statute is general or permits [*20] discretion as to the manner of performance, as is the case under s. 28, of the Public Lands Act, or where unusual circumstances exist which are not clearly within the scope of the statue, mere compliance is unlikely to exhaust the standard of care.

[59] Leone argues that although there is nothing in the statutes or the regulations under the Provincial Parks Act, which would require the MNR to maintain or inspect trails, nor that governs the manner of their maintenance or inspection. However they have made a common-sense and practical decision to guard against hazards on public trails in provincial parks in order to met the duty of care.

[60] Leone argues that summary judgment ought not to be granted in cases where the determination of questions of law are intertwined with questions of fact, which, in turn, will be determined by the judge's evidentiary and credibility findings.

[61] Leone argues that the following questions of mixed fact and law are raised by the evidentiary record:



1) Does knowing that the trails were being used during the spring and summer by various users place an obligation on the Crown or the Committee to post warning signs, or inspect or maintain [*21] the trails, and does their failure to do so constitute reckless disregard?

2) Does such knowledge place an obligation on the Crown or the Committee to ensure that Kolapore marked the trails as required under the Occupiers' Liability Act, and does their failure to do so constitute reckless disregard?

3) Does such knowledge place an obligation on the Crown and the Committee to ensure that the trails are inspected and maintained during the spring and summer, and does their failure to do so constitute reckless disregard?

4) Does such knowledge place an obligation on the Crown or the Committee to extend the land use permit for a twelve month period?

5) In the circumstances, does the Crown's failure to ensure that the trails were being maintained or inspected to any standard constitute reckless disregard?

6) Does the explicit invitation by the Committee to have the Crown address the liability associated with trail use in the spring and summer place any obligation on the Crown to act, and does its failure to do so constitute reckless disregard?

7) Does the Crown's failure to undertake a comprehensive management plan for the area constitute reckless disregard?

8) [*22] Does the Crown's admission that it took no steps whatsoever to protect against harm constitute reckless disregard?

9) Does the free use policy have any effect on the Crown's duty of care?

10) Does Policy NO. LM7.01.06 - authority for recreational trails on Crown land - have any effect on the Crown's duty of care?

11) Was the decision to not inspect or maintain the trails, or erect signs, an operational decision that would attract liability?

12) Does the Public Lands Act, in granting discretion to the Crown to erect signs prohibiting, controlling or governing mountain bike use, constitute evidence of reasonable conduct that will assist the trial judge in determining whether the Crown's conduct amounted to reckless disregard?



[62] It is Leone's position that trails at issue were not reasonably marked as recreational trails, hence, the plaintiff will not be deemed to have willingly assumed any risk by entering the trails, and therefore s. 3(1) of the Occupiers' Liability Act does not apply.

PROCEEDINGS AGAINST THE CROWN AT: SECTION 7(3) ISSUE

[63] It is Leone's position that although the Act requires 10 days notice "after the claim arose", Leone's injuries were [*23] sufficiently severe that he was unable to comply with this section. He argues that the discoverability rule applies to the limitations period contained within s. 7(3) of the Proceedings Against the Crown Act.

[64] Leone argues that the inability to satisfy the statutory notice did not prejudice the Crown. To provide notice did not interfere with the Act's other notice requirements. Leone relies on the Limitations Act 2002 S.O. 2002, c. 24, Sched. B, s. 7, which provides, if a person entitled to bring an action is incapable of commencing a proceeding because of his or her physical, mental or psychological condition, then the limitations period does not begin to run until that person is capable of bringing the action.

 

[TRA]

(cont'd due to limits on lengths of posts)

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[65] Leone argues there is a genuine issue as to whether Leone was capable of bringing a claim within 10 days after being injured. Those facts constitute general issues for trial and should not be resolved on a summary judgment motion.

[66] A photograph of Leone illustrating his injuries can be seen at Exhibit I to his affidavit sworn July 6, 2006. (See Responding Record of the Plaintiff, Tab 1(i)). Leone also relies on the report [*24] of his general practitioner to support this position.

FINDINGS

[67] I am satisfied that both the Crown and the Committee are occupiers of the lands and premises where the plaintiff allegedly fell pursuant to s. 1 of the Occupiers Liability Act. Although the Committee's permit from the MNR is specified for a period of time outside the time of the alleged fall, it has demonstrated that it has taken possession of the lands in question in summer months by preparing the trails for winter use. The signs erected by the UTOC and the Committee are not time limited and indicate a level of possession of the property at the relevant time. The definition of occupier includes "a person who has control over persons allowed to enter the premises". In the case of Moody v. The Corporation of the City of Toronto et al 31 O.R. (3d) 53, Dambrot J. held that there was a genuine issue concerning the existence of special circumstances relating to a sidewalk which was on the premises not owned by the Corporation of the City of Toronto but utilized by persons attending a sporting event almost exclusively by stadium patrons.

[68] I am not prepared to find the fact that [*25] the Kolapore Uplands can be characterized as "vacant, undeveloped, forested or wilderness" at the time of the plaintiff's alleged fall. It is clear from correspondence between the defendants prior to this incident that the area in question had been developed into a series of trails frequented by cross-country skiers, horseback riders, ATV users, cyclists, hikers and rock climbers. This increased use by these people concerned the UTOC and the Committee sufficiently to trigger correspondence between them and the MNR. I find there is a triable issue on this important finding of fact since it attracts the potential liability of the defendants. It is clear from the evidence before me that neither the UTOC nor MNR inspected or maintained trails year round. There is no warning on this signage posted by the UTOC that users of the property are at their own risk. The wording on the sign is misleading in the sense that it could lead to a user of the premises to believe that there was some inspection performed by the volunteers of the UTOC.

[69] In view of my conclusions, s. 3(1) of the Occupier's Liability Act would apply as opposed to s. 4.1. In analyzing the duty of care owed by the defendant [*26] to the plaintiff, it is necessary to determine whether or not the premises in question were "rural", "vacant", "undeveloped", "forested" or "wilderness" as provided for in para. 4(4) of the Occupier's Liability Act. If the premises are properly described under ss. 4 and s. 4(1) applies which provides that the occupier owes a duty to the person 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 recklessness disregard of the presence of the person or his or her property.

[70] In analysing whether the premises were "rural", "vacant", "undeveloped", "forested" or "wilderness" premises, I have carefully reviewed the photographs of the premises, and the affidavits of Kevin Hawthorne describing the premises. In Hawthorne's affidavit sworn June 20, 2006, he deposes at paras. 28 and 29 that the premises in question were fairly flat with a gentle downhill grade. The photographs at Tab G indicate premises that appear to be rural in nature and undeveloped. In Hawthorne's affidavit sworn July 17, 2006, he deposes that approximately forty-nine hundred acres of land in the Kolapore Uplands is Crown land where the [*27] plaintiff allegedly fell. He further deposes at para. 5 that with the exception of small wooden bridges constructed by the Committee, and one house located approximately five miles from the location of the accident scene there are no man made structures.

[71] In the letter dated July 7, 1993, written by the Committee to the MNR, the Committee expresses their concerns about the impact of mountain biking on the ski trails. They refer to the use of the trails being dramatically increased reaching the point where parking lots are filled and they have encountered groups of as many as forty mountain bikers. A further letter of August 11, 2001, repeats their concern and requests action by the MNR to develop a management strategy for this property.

[72] Having carefully reviewed all of the evidence on this issue, I note that there is no judicial definition of the operative words "rural, "vacant" or "undeveloped" premises, "forested" or "wilderness" premises.

[73] I find that there is a triable issue on whether or not the premises in question are "rural", "vacant", "undeveloped", "forested" or "wilderness". It is clear from the correspondence that the nature of the premises has changed [*28] over the years, prior to the plaintiff's alleged fall, which concerned the UTOC and Committee. It is a triable issue in my view to determine whether or not these premises qualify for this generic description. It therefore follows, that until that decision is determined by a Trier of Fact, the duty of care set out in s. 3(1) and s. 4(1) of the Occupier's Liability Act must be determined. I also find that the premises in question are not recreational trails reasonably marked by notice as such referred to in para. 4(f). Since I have concluded that there is a triable issue, I do not consider it necessary for me to determine whether or not the defendants have treated the plaintiff with a reckless disregard to his presence or treated him with a deliberate intent of doing harm or damage pursuant to s. 4(1).

[74] Having read the description of the depression, where the plaintiff allegedly fell, its location, and the circumstances surrounding his alleged fall, I conclude that he has a "real chance of success" with his action.

NOTICE OF CLAIM

[75] The plaintiff by correspondence notified the MNR of potential clam on September 13, 2004. A formal notice was forwarded by letter date September [*29] 20, 2004. Following the plaintiff's alleged fall, he was hospitalized for a period of time. He deposes in his affidavit that because of the severity of his injuries, which appear to be supported by a photograph attached to his affidavit, he was unable to make a decision and notify the MNR within 10 days provided in s. 7(3) of the proceedings against the Crown Act. I am of the view that the discoverability rule applies to this action and therefore the limitations period may not begin to run at the time the injury occurs. Appleyard v. Ontario, [1999] O.J. No. 3940 (Gen. Div.) at paras. 12 and 15, Piexeiro v. Haberman, [1997] 3 S.C.R. 549 at paras. 37 and 38.

[76] I am satisfied the plaintiff was unable to satisfy the statutory notice requirements and the delay did not prejudice the Crown, nor did the failure to provide notice interfere with the proceedings against the Crown Act other notice requirements.

[77] For these reasons given I dismiss the motions of the defendants with costs to the plaintiff. I invite counsel to arrange a date with the trial co-ordinator at Newmarket to obtain a date to fix these costs. [*30]

[78] I am indebted to counsel for their able arguments.

J.H. JENKINS J.

 

[binary visions]

tl;dr

 

[TRA]

?

English, please.

 

[stoney]

Holy necro thread. This is over 6 years old.

 

[JohnE]

Spambots sweeping for lawyer related threads...

 

[jimmydean]

I miss DMG.