I'm Developing A Distaste For Lawyers
- Thread starter breakwall
- Start date
Karen Kraft
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Ummmm......
I think I missed something here. Is this the same guy who fell back in 2005; if so, does he fall often or is this just really old news? To wit:
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Sun, April 17, 2005
Lawsuit a threat to trails
CYCLISTS FEAR FOR SPORT
By TRACY MCLAUGHLIN, SPECIAL TO THE SUN
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.
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I think I missed something here. Is this the same guy who fell back in 2005; if so, does he fall often or is this just really old news? To wit:
===================================
Sun, April 17, 2005
Lawsuit a threat to trails
CYCLISTS FEAR FOR SPORT
By TRACY MCLAUGHLIN, SPECIAL TO THE SUN
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.
============================================
Karen Kraft
29
- Joined
- May 18, 2002
- Posts
- 36,253
Basia said:I got so excited..
Why the fuck do newbs bump old threads????
Oh, Jeeezzzzz!!!
Thanks, Basia. That explains it.
::sighs:: ::shrugs::
someplace
Literotica Guru
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- Apr 6, 2002
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- 21,219
breakwall said:
You think? *laughs hysterically*
edited because I hadn't read the damn dates. I HATE when I do that.
It was still funny though.
Maybe someone can look up on Lexis and see if the case was thrown out. Can't you just see the judge trying not to laugh?
P. B. Walker
Literotica Guru
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- Nov 21, 2001
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- 25,127
I missed this one the first time around. Stories like this make me wanna puke. I truely hate fuckstains like this guy.
"Oh look, those people are having fun, I MUST insert my retarded self into the equation and totally fcuknut it for everyone."
There's really no way to deal with lawyers either. Either you get fucked hard, or you go broke.
I hope all these volunteer organizations find a way to save the trails from this fuck hole.
"Oh look, those people are having fun, I MUST insert my retarded self into the equation and totally fcuknut it for everyone."
There's really no way to deal with lawyers either. Either you get fucked hard, or you go broke.
I hope all these volunteer organizations find a way to save the trails from this fuck hole.
Here's some more information, just to annoy whiny faggots like basia and ma_guy...
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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.
[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.
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.
[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.
------------------------------------------------------------
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.
[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.
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.
[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.
