No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such".  A person who enters such premises is deemed to have willingly assumed all risks.  The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway.  The Commission brought a motion for summary judgment.  The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4. 

The Divisional Court disagreed.  The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands.  If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4.  Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result".  There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.