Rastin Review: Court of Appeal decision maintains that municipality had "reckless disregard" when failing to properly maintain recreational trail

In a new blog series we are naming 'Rastin Review' our Student-at-Law-- Sandy Chen assessed a recent decision made by the Ontario Court of Appeal. Continue reading to find out why and how a person injured as a result of municipal negligence received significant compensation. The recent case of" Labanowicz v. Fort Erie (Town)[1]" heard by the Ontario Court of Appeal was a welcomed decision for all Ontarians injured as a result of municipal negligence. On a summer day in 2006, Ms. Labanowicz was riding her bicycle on the Friendship Trail in Fort Erie. Throughout the trail, the municipality had erected wooden bollards at various points. These wooden bollards consisted of a metal bracket installed into the ground and a wooden post which was secured into the bracket. About four feet of the wooden post extended above ground and served to prevent unauthorized vehicles from accessing the trail. While cycling on the trail, the front wheel of Ms. Labanowicz's bicycle hit a metal bracket that was missing its wooden post attachment. Ms. Labanowicz had not noticed the metal bracket as it only protruded a few inches above ground. As a result of the collision, Ms. Labanowicz was knocked off her bicycle and sustained a serious brain injury. Ms. Labanowicz sued the municipality for compensation under Ontario's" Occupiers' Liability Act[2]. The Trial Decision Under section 3 of the" Occupiers' Liability Act, an occupier "owes a duty to take such care in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises". However, in this case, the duty of care was lessened for the defendant municipality pursuant to section 4 of the" Act" (as the accident had occurred on a recreational trail). The duty of care owed by the municipality became a less stringent duty "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"[3]. Despite the lesser duty of care that the municipality had to meet in order to avoid liability, Ms. Labanowicz was successful in her lawsuit and was awarded $995,000 in future and past income loss, as well as $921,508 in costs to help cover her legal bill. In finding the defendant municipality to have acted with "reckless disregard" contrary to section 4 of the" Act, the trial judge considered evidence that:
  • The municipality knew the wooden posts could easily go missing and were subject to vandalism;
  • Diamond shapes were painted around some bollards at other points on the trail, but this was not done to the bollards at the location of Ms. Labanowicz's accident;
  • No explanation was provided by the municipality as to why some bollards were locked and some were not.
The defendant municipality appealed the trial decision to the Ontario Court of Appeal. The Court of Appeal Decision At the Court of Appeal, the municipality argued that the trial judge erred, amongst other things, in the interpretation of section 4 of the" Occupiers' Liability Act. The municipality argued that under section 4, the municipality could not be held liable for Ms. Labanowicz's injuries unless it was acting intentionally with reckless disregard for the safety of people entering the Friendship Trail. A unanimous bench at the Ontario Court of Appeal disagreed with the municipality's interpretation of section 4 and dismissed the appeal. The Court of Appeal found that the trial judge applied the correct interpretation of section 4 and affirmed that the section creates two different duties of care:
  1. To not create a danger with intent of doing harm or damage; and
  2. To not act with reckless disregard
In other words, a municipality can be in breach of its duty of care if it acts with reckless disregard, even if it did not act" intentionally" with reckless disregard. As the trial judge did not err in the interpretation of section 4, the Court of Appeal concluded that the trial judge's findings of fact were owed deference and upheld the trial judge's finding that "the existence of an unpainted, unlocked and relatively easily removable bollard which exposes a housing or saddle above grade that has limited, if any, conspicuity amounts to reckless disregard to the safety of the persons using the Trail."[4] The Court of Appeal ultimately dismissed all of the municipality's arguments, upholding both the finding of liability against it and Ms. Labanowicz's trial award for income loss and legal costs.   If you have been injured in an accident and are interested in seeing if you have a case for compensation: call 1-844-RASTIN1 for a free consultation.

[1]" Labanowicz v. Fort Erie (Town), 2018 ONCA 343.
[2]" Occupiers' Liability Act, R.S.O. 1990, c. O.2.
[3]" Section 4 of" Occupiers' Liability Act, R.S.O. 1990, c. O.2.
[4]" Labanowicz v. Fort Erie (Town), 2018 ONCA 343 at para 14.


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