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#18760
CAMPBELL v Bruce County: punishes OCCUPIER DUTY breach. Was the risk actually assumed if latent ? 2017/09/08 11:57  
It took separate “broken neck” accidents in 2008 before an Ontario cottage country municipality noticed ( & acted on ) what the judicial process has just exhaustively completed ruling became a life-altering catastrophe.

A tragic & usually NON-INSURED catastrophe for which the taxpayers will be paying for some time.

Those occupier flaws were held to be danger-disclosuring / consent-validity, injury-avoidance & management review of prior onsite accidents at one of its unsupervised Bruce County parks for mountain biking.

( Risk-taking fun or not, Ontario’s OLA Occupiers Liability Act R.S.O. 1990 ch O.2 lays on “occupiers" generally a Section 3 duty to keep users “reasonably safe” . . . except insofar as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. ..”. The latter scenario - or for certain scenarios deemed by the Law - can present an occupier-friendlier, lower standard of duty shown in the Law's subsequent Section 4.

Ontario condo corporations are legislated "occupiers" of common elements, and fees rise due to failures to meet occupier duties.

That level of occupier duty is applied fact-driven to what sometimes is an idiosyncratic outcome. Where some ‘occupiers’ have the skillsets & competence it might be worth trying to lower - with competent legal review - to a part 4 standard under certain circumstances admittedly often unalterable. Occupiers respectfully should rely on competent insured legal advice & ongoing management review. How often does that get done, particularly amidst stubborn intransigence & the Big Cheap ? )

The second ‘mirror image’ accident in 2008 - this time to a helmetted 43 year old engineer, the plaintiff - turmed out to be catastrophic, irrevocably altering the lives of all the family. The partially experienced, helmetted young father was rendered quadriplegic on a teeter-totter type of self-assessment installation. Of hundreds of injury-free gratuitous public visits, this incident was held to have culminated a half dozen mountain bike accidents left ‘under the radar’ & lacking subsequent review by the time the catastrophe occurred.

Despite the site's posted 1-800 number & e-mail, the litigation processes must have forced management to choose between 2 difficult confessions : either failing to check records of ambulance responses to critical injuries on site. Or to receiving but disregarding such as the earlier broken neck injury !

Could this be happening at your condo or Building Scheme ?

Critically the litigation process exposed ( at the site’s then-unsupervised self-testing / gate-keeping test installations ) an occupier SIGNAGE shortfall that was central to THIS particular victim's accident. The shortfall included under-disclosuring risks & prudent injury-avoidance despite design involvement by some of the sport’s governing bodies.

Yes : its sports & rec risk-taking ! No guns were held to the victim's head to take the skills-test !

BUT can a latent, somewhat hidden risk be understood & assumed if even recognizing it exceeds the otherwise expertise of an adult risk-taker user ?

In Feb 2017 Canada’s Supreme Court refused to hear an appeal of the Ontario trial & appeal decisions that wiped the floor with the Bruce County taxpayers.

Both the 2015 trial & 2016 appeal decisions restate the dominant Ontario precedent, & the latter adds a deceptively simple looking Occupier Duty dictum from a late British judicial superstar for’ just regular folks’.

* * *
-2017 SCC refuses to hear appeal : Municipal Corporation of the County of Bruce v. Stephen Campbell, et al., 2017 CanLII 6748 (SCC) issued Feb 16/17 http://canlii.ca/t/gxj8x

-2016 ONCA totally upholds lower court Municipality 100 % liable for breach of Section 3 occupier duty keep safe Campbell v. Bruce (County), 2016 ONCA 371 isued May 17/16 http://canlii.ca/t/grpz1

- 2015 Trial judgment 100 % for victim & dependents NOT AT CANLII.ORG Campbell v. Bruce (County) 2015 ONSC 230 issued Jan 16/15 http://www.hughesamys.com/docs/default-source/blawg-documents/campbell-v-bruce-(county)-2015-o-j-no- 3538.pdf?sfvrsn=0

( xcrpted from Mr Justice Marc Garson :
" . . . . 246 I conclude that unlike the obvious and clear risk of diving head first into shallow water, the risks posed by “Free Fall” and a lack of adequate signage was a hidden danger and a hazard to (plaintiff Campbell) SC. Such danger was neither obvious nor apparent to SC. . . .
250 . . . (iii) I have little doubt had more detailed signage been in place, and had the County been aware of the ( prior) injuries to XXXX , the decisions made by SC would have been different and the injuries would not have occurred. In fact, upon learning of the injuries to Ian Ross, the County closed Too Rad and after the injury to SC, closed the wooden features area completely. . . .
256 It was entirely foreseeable that people would fall off these features. In fact, they are built with this knowledge..." unquote )
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#18761
a biggy from CAMPBELL v Bruce County 2016 ONCA. 2017/09/09 12:41  
Both the 2015 trial & 2016 appeal decisions confirm a dominant Ontario precedent Waldick v Malcolm upheld in Canada's Supreme Court in 1991.( "How can we possibly be liable for Waldick's midwinter fall on our unsalted / untreated laneway ? This is the country ! Everyone out here is too lazy to salt the ice ! It's a local custom that everyone foolishly expects the walking to be dangerous. Anyway, the victim chose to try to walk without injury so he must have 'assumed all risks' by default !" )

And the appeal court adds a deceptively simple looking Occupier Duty dictum from a late British judicial superstar for’ just regular folks’ like most of us. )

ONCA (30): " . . . In Veinot v. Kerr-Addison Mines Ltd., 1974 CanLII 20 (SCC), [1975] 2 S.C.R. 311 at p. 317, 51 D.L.R. (3d) 533, Dickson J, speaking for the majority, quoted with approval several factors listed by Lord Denning on the issue of whether an occupier has taken reasonable care:

The following excerpt from Lord Denning's judgment [Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387] aptly expresses in my opinion the more salient points a judge should have in mind when considering intrusions upon land :

( quote )The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it. ( unquote )

[31] In my view, the trial judge’s reasons are consistent with this passage. . . . "
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