• Municipality Liable for Damages Following Tobogganing Accident: Uggenti v. Hamilton (City), 2013 ONSC 6162
  • November 8, 2013
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • In Uggenti v. Hamilton (City), the Superior Court of Justice dismissed a municipality’s appeal of an Arbitrator’s decision finding it completely liable for damages sustained following a tobogganing accident on municipal reservoir property.

    Bruno Uggenti was seriously injured while he and his then-wife Patricia Uggenti (the “Plaintiffs”) were tobogganing on reservoir property owned by the  City of Hamilton (the “City”). The accident occurred when the Plaintiffs were thrown from their toboggan after hitting the edge of a snow-covered ditch on their first run down a slope. Previously, the Plaintiffs’ children had gone down the same slope twice without incident. The City had a by-law prohibiting tobogganing on the reservoir property, but the plaintiff was not aware of it. Injuries to Mr. Uggenti included a crushed vertebrae and psychological problems which led to ongoing chronic pain, depression, post-traumatic stress and ultimately the breakdown of the Plaintiffs’ almost 20 year marriage. The Arbitrator found the City 100% liable for the Plaintiffs’ losses. In finding the City liable, the Arbitrator relied upon section 3 of the Occupiers’Liability Act (the “Act”) which requires occupiers to take reasonable care in all the circumstances to see that persons entering a premises are reasonably safe. The Arbitrator found that the City did not meet this obligation. He found that the snow-covered ditch which led to the tobogganing accident was a hidden danger. The City knew about it, but did not take reasonable steps to warn tobogganers of this danger.

    The City appealed the Arbitrator’s decision in accordance with the terms of the arbitration agreement which provided a right of appeal on questions of law alone. The Court dismissed the City’s appeal. Although much of the Court decision focusses on the Court’s ability to review the Arbitrator’s decision, it also provides relevant commentary for municipalities as occupiers of properties which may be used for tobogganing and other recreational activities.

    The Plaintiff Did Not Willingly Assume the Risk of Injury

    The City argued that the Plaintiffs had willingly assumed the risk of injury, and therefore the less onerous duty in section 4(1) of the Act should apply. Section 4(1) of the Act states that
    when a person willingly assumes the risk of injury, the duty in section 3 does not apply. Rather, the occupier only owes a duty not to create a danger with the deliberate intent of doing harm and a duty not to act with reckless disregard for the presence of the person.

    Prior to the accident, the Plaintiffs noticed a slight depression or divot across the bottom of the tobogganing slope, but his children had gone down the same slope twice without incident.
    Mr. Uggenti was aware of the risk of falling off a tobogganing since he had been involved in a previous tobogganing accident. The City also argued that an inherent risk of tobogganing exists because the topography of an area is hidden by snow. The Arbitrator found that the Plaintiffs were not aware of the risk of hitting the edge of a snow covered ditch, and this risk was a hidden danger not inherent to the sport of tobogganing. On appeal, the Court held that there was ample evidence to support the Arbitrator’s decision on this point. The Court also cited the Supreme Court of Canada decision in Waldick v.Malcolm, [1991] 2 SCR 456, which held that the voluntary assumption of risk requires knowledge of the risk, as well as a waiver of legal rights that may arise as a result of the risk. This case reiterates that it is very difficult to establish that a plaintiff has willingly the assumed the risk of injury.

    The Property Was Not A Utility Right-Of-Way Or Corridor

    The Court also considered the Arbitrator’s decision about whether the reservoir property was a utility right-of-way or corridor. Subsections 4(3) and 4(4) of the Act provide that Plaintiffs are deemed to have willingly assumed all risks of entering a premises where certain requirements are met, including:

    • entry on the premises is for a recreational activity;
    • no fee is paid for entry; and,
    • the premises falls into one of the categories identified in section 4(4) of the Act:
      • a rural premises that is,
        • used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,
        • vacant or undeveloped premises,
        • forested or wilderness premises;
      • golf courses when not open for playing;
      • utility rights-of-way and corridors, excluding structures located thereon;
      • unopened road allowances;
      • private roads reasonably marked by notice as such; and
      • recreational trails reasonably marked by notice as such.

    Where these three criteria are met, plaintiffs are deemed to willingly assume all risks of entering the premises, and the municipality would have the lower duty of care not to create a danger with the deliberate intent of doing harm and not to act with reckless disregard for the person’s presence.

    In this case, there was no issue that the Plaintiffs were on the reservoir property for a recreational activity, and there was no entry fee. The only issue was whether the location of the Plaintiffs’ accident was a utility right-of-way or corridor, one of the premises identified in section 4(3) of the Act.

    The Arbitrator considered the definition of “utility right-of-way” in a Ministry of Natural Resources discussion paper, as well as case law and information about the legislative intent behind section 4 of the Act, and he concluded that the premises where the accident occurred was not a utility right-of-way. On appeal, the Court agreed with Arbitrator’s decision. Accordingly, the Plaintiffs were not deemed to have willingly assumed the risk of injury, and the duty of care under section 3 of the Act applied.

    Duty of a Municipality When Property is Used for Tobogganing or Other Recreational Activity

    This case serves as a reminder that in most cases where municipal properties like parks are used  for tobogganing, municipalities owe a duty to take reasonable steps to ensure that people entering the premises are reasonably safe. However, in some limited circumstances, municipalities may be able to rely upon the less onerous duty set out in section 4(1) of the Act. Where a plaintiff has entered a premises for a recreational purpose and there is no fee for entrance, a municipality should consider whether the premises falls into one of the categories listed above. This issue will turn on the facts of each case. In determining this issue, Courts may consider definitions of the various categories based on principles of statutory interpretation, legislation, policy documents and case law, as well as evidence about the particular premises, such as its location, its character including the existence of vegetation  or trees, its usage and any signage. If all three requirements are met, then the plaintiff would be deemed to have assumed all risks of entering the premises, and the municipality would only have a duty not to create a danger with the deliberate intent of doing harm and not to act with reckless disregard for the plaintiff’s presence.