Municipality found liable in Recreational Accident

Under Ontario’s Occupiers’ Liability Act, subsection 3(1), the occupier of a premises (including the owner, tenants or parties responsible for the activities carried out on a premises) “owes a duty to take such care as is reasonable in all the circumstances to see that persons entering on the premises are reasonably safe while on the premises”.  Further, under subsection 4(1), an occupier has a duty to not act with reckless disregard and also, not create any dangers or hazards with the deliberate intent of harming people coming onto the premises.

In a recent case involving a tobogganing accident on City of Hamilton property, an arbitrator determined that the accident victim had not voluntarily assumed the risks of his injury and further, the City breached its duty of care under section 3(1) and was consequently 100 per cent liable for the plaintiff’s injuries.   The injured man, Bruno Uggenti, was awarded $482,657 in damages, and his wife was awarded $100,000 in damages under the Family Law Act, for housekeeping and child care expenses.

In Uggenti v. Hamilton (City), the City appealed the arbitrator’s decision on the grounds that the arbitrator erred in his application of several rules of law.  Specifically, the City claimed that the arbitrator should have applied subsection 4(1) of the Act to this case rather than the duty of care in section 3.  Also, the arbitrator erred in his finding that the premises where the accident occurred was not a right-of-way or corridor, which led him to the false conclusion that there was no assumption of risk.  Further, the City argued that there should have been a finding of contributory negligence on the part of the plaintiff. Also, it was argued that damages should not have been awarded to the plaintiff’s wife.   On their part, the plaintiff’s countered with the argument that none of the grounds put forward by the City of Hamilton constitute an error of law, which is the only permissible basis for an appeal.

Essentially, the four key issues to be decided on appeal, by the Ontario Superior Count are:

  1. Was the Arbitrator mistaken in finding that the plaintiff had not willingly assumed a risk of injury, under subsection 4(1) of the Act?
  2. Did the Arbitrator err in deciding that the location of the accident is not a utility right-of-way or corridor, and that there is therefore no assumption of risk, under subsection 4(3) of the Act?
  3. Was the Arbitrator incorrect in finding no contributory negligence on the part of the plaintiff?
  4. Did the Arbitrator err in awarding damages to the plaintiff’s wife under the Family Law Act?

The plaintiff’s injuries occurred on their first run down the hill when he and his wife were ejected from the toboggan after it struck the edge of a snow-covered ditch.  Before this run, the parents had watched their children descend the same hill twice without a mishap.  They had noticed a slight depression at the bottom of the slope, but were not aware of the risk of hitting the ditch. With respect to the question of the plaintiff’s willingness to assume risk of injury, the City argued that the plaintiff should have been award of the risks of tobogganing, particularly since he was previously injured in a tobogganing accident.  However, the arbitrator found that the snow-covered ditch was, in fact, a hidden danger and not a risk inherent to tobogganing.  Further, the City knew about the danger that the ditch presented to tobogganers, but did not take reasonable steps to warn tobogganers.  The Court of Appeal agreed with the arbitrator that there was substantial evidence that the plaintiff was not aware of the risk of tobogganing at this location, and as such, could not have voluntarily assumed risk.

Prior to adopting the current model of the Occupiers’ Liability Act, in 1979 the Ontario Ministry of the Attorney General issued the Discussion Paper on Occupier’s Liability and Trespass to Property which encouraged the promotion of making government-owned land available for recreational purposes with a less burdensome duty of care for certain classifications of property, including utility rights-of-way/corridors.  The arbitrator considered this discussion paper in making his decision, but noted that the Act does not define a utility corridor, and thus he looked to normal definition in a Ministry of Natural Resources document which defines a utility corridor as a narrow strip of land that provides access between two locations to allow the transporting of tele-communications or gas.  In noting that the Arbitrator considered the discussion paper and found on the evidence presented that the reservoir was, in fact, not a utility right-of-way or corridor and therefore did not fall under the duty of care proposed for this type of use.  Further, the City of Hamilton bylaws actually prohibit tobogganing.

With respect to the plaintiff’s responsibility for their own injuries, the City argued that the arbitrator did not apply the well-known rule in determining whether the plaintiff was contributorily liable.  In Bow Valley Husky (Bermuda) Ltd. V. Saint John Shipbuilding Ltd., the Supreme Court of Canada defined a test for contributory negligence.  A person is guilty of contributory negligence if he/she should have reasonably foreseen that if he/she did not act in reasonable and prudent manner, it may result in injuries, and further, a reasonable and prudent person must consider the possibility that other persons are careless.

In Uggenti, the City stated that after seeing the depression in the snow at the bottom of the hill, a reasonable and prudent person would have concluded that it presented a potential hazard and risk of injury.  The Superior Court judge concluded, however, that although the Arbitrator did not specifically refer to the Supreme Court definition of contributory negligence, there is no evidence that he applied the wrong test in his analysis.

The damages awarded to the plaintiff’s wife were in recognition of the fact that, prior to the accident, husband and wife shared in household responsibilities, but post-accident, the plaintiff’s preoccupation with his recovery and a change in his personality damaged the close bond between the couple. The plaintiff’s injuries resulted in chronic pain, depression and post-traumatic stress disorder, and the change in his behaviour ultimately led to a deterioration in their relationship and eventually, a breakdown in their marriage.  The insurer challenged not only the award to the plaintiff’s wife under the Family Law Act, but also the $125,000 in damages awarded to the plaintiff by the Arbitrator for pain and suffering.  Again, the Superior Court judge did not find fault with the Arbitrator’s reasoning, as the latter took into account all the changed circumstances caused by the plaintiff’s injury, including medical evidence for the pain and suffering associated with the crushed L1 vertebrae as well as his psychological injuries. Further, it was concluded that the award of damages to the plaintiff’s wife was based on a finding of fact, which is not eligible to be reviewed on appeal.

The Superior Court of Justice dismissed the City of Hamilton’s appeal of the arbitrator’s decision finding the City liable for damages.

If you or a family member were injured in a slip and fall or a recreational accident and wish to make a claim for compensation, contact the knowledgeable personal injury lawyers at Kotak Law.  Depending on the severity of your injuries and extent of your losses, you may be entitled to damages for pain and suffering, loss of income, medical and rehabilitation expenses, family expenses, and other financial losses resulting from your injuries.  Call and schedule a no-obligation meeting with one of our experienced lawyers today and find out how we can help get you the compensation you are owed.


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