2008 BCCA 331 Skopnik v. BC Rail Ltd.

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Skopnik v. BC Rail Ltd.,*
	2008 BCCA 331

Date: 20080825

Docket: CA035449

Between:

Larry Skopnik

Respondent

(Plaintiff)

And

BC Rail Ltd. and British Columbia Railway Company

Appellants

(Defendants)

And

Her Majesty The Queen In Right Of The Province Of British Columbia, Represented By The Ministry Of Transportation And Highways

(Defendant)

Before:	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Tysoe
	The Honourable Mr. Justice Bauman

L.R. Jackie, Q.C. and A.M. Gunn, Jr.	Counsel for the Appellants
D.G. Cowper, Q.C. and G. Battista	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
23 May 2008
Place and Date of Judgment:	Vancouver, British Columbia
25 August 2008
Written Reasons by:
The Honourable Mr. Justice Bauman
Written Reasons Concurring in the result by:
The Honourable Mr. Justice Tysoe (page 25, para. 84)
Dissenting Reasons by:
The Honourable Madam Justice Saunders (page 29, para. 94)

Reasons for Judgment of the Honourable Mr. Justice Bauman:

[1] On 20 April 2000, Larry Skopnik was tragically injured while riding his mother's all terrain vehicle ("ATV") along the right of way ("ROW") of the appellants' railway (collectively, "BC Rail") approximately 26 kilometres from Chetwynd, British Columbia.

[2] Mr. Skopnik's ATV became airborne when it crested an old excavated area within the ROW. The ATV landed with sufficient force to cause a critical injury to Mr. Skopnik's spine.

[3] Mr. Justice Leask, in the Supreme Court of British Columbia, considered the issue of liability in a trial ordered on that issue alone. The learned trial judge imposed liability on BC Rail under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 (the "Act"). His reasons are indexed at 2007 BCSC 1340.

[4] BC Rail appeals from that decision. This appeal considers for the first time the scope of amendments made to the Act in 1998 that create a lower standard of care in respect of certain lands and certain users.

II.

[5] The Act came into force in 1974. It clarified the duty of care of landowners and removed the common law distinctions between the duties owed to trespassers, invitees and licencees. Section 3(1) created "a duty to take such care as in all the circumstances of the case is reasonable to see that a person … on the premises … will be reasonably safe in using the premises".

[6] Section 3(1) creates a code. In the words of Mr. Justice Aikins in Weiss v. Y.M.C.A. (1979), 11 B.C.L.R. 112 (C.A.) (at 118):

… s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard of care necessary to fulfil that duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by the subsection to refer to any of the specially formulated standards of care laid down in the common law …

[7] In 1989, amendments to s. 3(3) of the Act were introduced in the Attorney General Statutes Amendments Act, S.B.C. 1989, c. 64, s. 31.

[8] The new subsection (3) reads as follows:

(3) Notwithstanding subsection (1), an occupier has no duty of care to a person

(a) in respect of risks willingly accepted by that person as his own risks, or

(b) who enters premises that the occupier uses primarily for agricultural purposes and who would be a trespasser under the Trespass Act,

other than a duty not to

(d) act with reckless disregard to the safety of the person or the integrity of his property.

[9] According to the Honourable S.D. Smith, during debate on the bill, the amendment responded to the perceived hardship on rural landowners with the advent of increased recreational users on such lands:

What this does is the following. Today, if you were to enter upon my ranchland to do skidooing or whatever you wanted to do, and you were trespassing – I hadn't given you permission to come on that land – and the front ski of your skidoo entered a gopher hole, flipped over, and you broke your neck, there is precious little to prevent a suit by you against me as the owner of that land.

That imposes considerable hardship upon the ranch community particularly, because as we have more recreational vehicles and more people mobile and accessible to those lands, which are wide open and very often extremely inviting spaces, that problem arises.

If I fence and post the land, meaning I say "No trespassing allowed," and you thereafter come on my land as a trespasser and do the same thing, you will not succeed in some action you might want to bring against me for injuring yourself.

[British Columbia, Legislative Assembly, Official Report of Debates of the Legislative Assembly (Hansard) (18 July 1989) at 8698-8699]

[10] In 1994, the Law Reform Commission of British Columbia published its Report on Recreational Injuries: Liability and Waivers in Commercial Activities (Victoria: Queens Printer, 1994).

[11] It included a discussion of the liability concerns of landowners who might allow unrestricted entry to recreationalists (at pp. 37-38):

It is understandable why private landowners and Crown tenure holders may fear that they will be exposed to unknown liabilities if they allow unrestricted entry to recreationists. It is unrealistic to expect an occupier who is unaware of the location or even of the presence of recreationists to protect them from hazards related to activities such as logging and mining. While section 4(1) of the Occupiers Liability Act allows the occupier to post warnings that entry is at the recreationists’ own risk, signs cannot be posted on wilderness lands in enough places to ensure adequate warning to all entrants.

Encouraging outdoor recreation and development of the Province’s recreational potential are central elements of public policy in British Columbia, pursued by successive governments. Through their umbrella organization, outdoor recreationists have expressed a willingness to assume the risk of hazards on the lands and waters they cross in return for being allowed greater access. While legislators should be careful to avoid reviving the unwieldy distinctions between categories of entrants that were a feature of the former law of occupier’s liability, relaxing the occupier’s duty of care towards gratuitous recreational entrants will probably receive wide acceptance in British Columbia as a means of encouraging more private and public occupiers to grant access. It has been done in Ontario, in England, and in many American states.

[12] In 1998, the Legislature responded to this and other calls for reform by adopting amendments to the Act (Occupiers Liability Amendment Act, S.B.C. 1998, c. 12). Those which are relevant to this appeal are found in subsections (3), (3.2) and (3.3):

(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person’s property, or

(b) act with reckless disregard to the safety of the person or the integrity of the person’s property.

[…]

(3.2) A person who enters any of the categories of premises described in subsection (3.3) is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection (3) if

(a) the person who enters is trespassing, or

(b) the entry is for the purpose of a recreational activity and

(i) the occupier receives no payment or other consideration for the entry or activity of the person, other than a payment or other consideration from a government or government agency or a non-profit recreational club or association, and

(ii) the occupier is not providing the person with living accommodation on those premises.

(3.3) The categories of premises referred to in subsection (3.2) are as follows:

(a) premises that the occupier uses primarily for agricultural purposes;

(b) rural premises that are

(i) used for forestry or range purposes,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises, or

(iv) private roads reasonably marked as private roads;

(d) utility rights of way and corridors excluding structures located on them.

[13] It will be seen that subsection (3) creates a standard of care lower than that set out in section 3(1) of the Act, that the Act deems (in subsection (3.2)) that certain persons who enter certain categories of premises (described in subsection (3.3)) willingly assume all risks and that it provides that the occupier thereof may be subject to the lower standard of care in respect of such entrants.

[14] The learned trial judge adopted Mr. Justice Groberman's view of the legislative intent behind these 1998 amendments as set out in Hindley v. Waterfront Properties Corp., 2002 BCSC 885 (at paras. 19 and 22):

The diminished duty of care for recreational use of rural premises is a result of a 1998 Amendment to the Occupiers Liability Act. The purpose of the Amendment is clear – it is to encourage landowners in rural areas to allow the public to use their land for recreational purposes. The legislation recognizes that the normal duty of care set out in the Occupiers Liability Act might be onerous in a rural setting, where owners may have limited practical ability to control access to their land, and where the cost of continuous monitoring of land to ensure that it is reasonably safe for all comers may be high.

[…]

The purpose of the Amendments to the Occupiers Liability Act in 1998 was to encourage the opening up of rural lands to recreational use. Areas outside cities, particularly those where parcels of land are large and roads are some distance apart, appear to have been the main target of the legislation. The area of the parcel of land in this case is of the very nature that the legislation appears to be aimed at.

[15] I agree with Mr. Justice Groberman's views in this regard but I add that the 1998 amendments had another important aspect, that is, in their treatment of trespassers.

[16] Before the amendments in 1998, the Act extended the lower standard of care to trespassers who entered land used by occupiers primarily for agricultural purposes (R.S.B.C. 1996, c. 337, s. 3(3)(b)). That Act defined a trespasser as "a trespasser under the Trespass Act".

[17] The 1998 amendments, in addition to dealing with trespassers engaged in a criminal act (subsection 3(3.1)), describe trespassers without reference to the Trespass Act, R.S.B.C. 1996, c. 462, and broaden the categories of premises beyond lands used primarily for agricultural purposes.

[18] These amendments have an important impact on this appeal as I will discuss below.

III.

[19] Mr. Justice Leask canvassed all of the arguments raised by BC Rail by which the corporation sought to take advantage of the lower standard of care. I note here that the plaintiff discontinued the action against the Province of British Columbia on 22 September 2006. In the result, Leask J. concluded that BC Rail was required to meet the standard of care set by s. 3(1) of the Act in respect of the ROW and that it had failed in the circumstances to do so. Mr. Justice Leask found that the ROW did not come within either s. 3(3.3)(b)(ii) or (d) and that the lower standard of care set by s. 3(3) of the Act did not apply to the case.

[20] On these facts, and pursuant to subsections 3(3.2) and (3.3) of the Act, the lower standard of care will apply if Mr. Skopnik was on the right of way of a utility as a trespasser. It is therefore only necessary to consider two aspects of the learned judge's disposition. The first deals with his consideration of whether the ROW comes within the category of premises described in subsection (3.3)(d) that is: "utility rights of way and corridors excluding structures located on them".

[21] The second aspect centres on the trial judge's conclusion, by way of obiter dictum, that Mr. Skopnik was not a trespasser under s. 3(3.2)(a) of the Act.

[22] I turn to the first aspect of Mr. Justice Leask's analysis. It is captured in these paragraphs of his reasons, which followed his adoption of Mr. Justice Groberman's views in Hindley (paras. 8-10):

[…] The categories listed in subsection (3.3) are all consistent with Groberman J.’s analysis. Indeed, even the language of subsection (3.3)(d) – “utility rights of way and corridors excluding structures located on them” (emphasis added), appears to support Groberman J.’s interpretation. I believe that Groberman J. has accurately stated the purpose of the amendments. The context in which the amendments were enacted was an expressed willingness by representatives of recreational users to accept greater risks on unmanaged “wilderness” type lands in exchange for greater access to those lands. Utility rights-of-way as described by BC Rail’s counsel – electricity transmission lines and pipeline rights-of-way - can be found traversing wilderness stretches of B.C. with little or no occasion for the right-of-way occupier to inspect or maintain the right-of-way once the transmission line or pipeline is built.

What is the situation with respect to railway rights-of-way? The evidence in this trial is that there is a regulatory requirement that the right-of-way be inspected twice a week. Furthermore, the evidence from Mr. McMillan of BC Rail is that the requirement is fully complied with by BC Rail. The inspections are an important safety measure which are carried out without fail. Examination for Discovery evidence read in by the plaintiff confirmed that BC Rail was on a regimented schedule to conduct two inspections per week, including both walking and high-trail truck inspections of the right-of-way along the BC Rail tracks. Thus, the railway right-of-way is unlike utility rights-of-way which can safely be neglected by the occupier once the transmission line or pipeline is completed. Arguably, railroad rights-of-way are subject to more organized inspection and monitoring than many urban sites where occupiers are subjected to normal (s. 3(1)) liability as a matter of course.

Considering the purpose of the 1998 amendments to the Occupiers' Liability Act and the context in which they were considered and enacted, I am satisfied that railway rights-of-way do not come within the term “utility rights of way and corridors” as that term is used in s. 3(3.3)(d) of the Act.

[Emphasis in original.]

[23] This analysis distinguishes railway rights of way from other rights of way on the basis that railway rights of way are inspected and other rights of way are not. The first concern with this analysis is the apparent conclusion of the learned trial judge that BC Rail, on the evidence, fully inspected the breadth of the ROW twice a week.

[24] In my respectful view, Leask J. misapprehended the evidence of Mr. McMillan of BC Rail. Here I will review that evidence and describe in some detail the lay of the land in the area of the accident.

[25] BC Rail, in its factum, accurately summarizes the thrust of Mr. McMillan's evidence. I reproduce paragraphs 4 to 7 of that factum but I exclude the references to the transcript:

4. The Defendants’ railway spans 1,200 miles throughout British Columbia and extends deep into the north of the Province. Hundreds of miles of the railway run through unpopulated areas. The railway is located in the middle of the ROW, which has a standard width of 100 feet on each side for a total breadth of 200 feet. In some locations the right-of-way is wider.

5. Between Prince George and Chetwynd (a community of approximately 5,000 people), the ROW and railway run parallel and adjacent to the John Hart Peace River Highway 97 South (the “Highway”) in a roughly east-west direction.

6. Testimony regarding the Defendants’ ROW maintenance program came from Tim McMiIIan, the Defendants’ Director of Track Maintenance for British Columbia at the relevant time. In that position, Mr. McMiIIan oversaw the workforce responsible for maintaining the Defendants’ track, bridge structures, culverts, facilities, and work equipment. He also personally conducted some field inspections.

7. Mr. McMillan gave evidence that:

(a) The Defendants’ ROW inspection and maintenance program focussed on the track structure itself. The Defendants aimed to maintain watercourses, ditch lines, culverts, and the sightline aspects for approaches into crossings, tunnels, and bridges. Public safety is taken into account, but only from the perspective of ensuring that trains are operated safely.

(b) In the area of Chetwynd, the Defendants were required by regulation to conduct inspections of the ROW twice weekly. The purpose of those inspections was to ensure safe train operations. With respect to the terrain within the ROW other than the track structure, the Defendants maintained those premises but only as necessary to maintain sightlines for the trains.

(c) Outside of urban areas, there are many hundreds of points of access across the 1,200 miles of the ROW. The Defendants rarely posted signage or erected fences to mark their ROW except within urban areas, where there is a high volume of trespass back and forth across yards and the mainline track.

(d) Mr. McMillan testified that it would be impossible for the Defendants to keep out all trespassers and recreational users, or to protect such individuals adequately given the number of potential hazards located on the ROW — including culverts, fence posts, wire, heavy boulders, and stockpiled ties and rail. The Defendants did not maintain the ROW with a view to the safety of trespassers or recreationists on the ROW.

(e) If the Defendants received complaints from the public as to anything deemed dangerous on the ROW, the Defendants would respond, investigate, and take remedial action if the matter represented a hazard to the railway’s integrity. If an obvious safety concern were observed, the Defendants would likely address it regardless of whether doing so was to protect a trespasser or someone lawfully on the ROW.

[26] The fact is that the accident occurred on a portion of the ROW that was indistinguishable from neighbouring properties.

[27] Operators of motorbikes and ATVs between Chetwynd and Hasler Flats cross the properties of various landowners. As part of their route they travel along a portion of the ROW, just east of Hasler Flats, between Houde Road and River Bend Ranch Road. A well-defined trail on this portion of the ROW had been created by such use.

[28] The trail goes through the middle of an excavation, located on the ROW approximately 200 metres east of River Bend Ra nch Road.

[29] Witnesses testified that when approached from the east, the excavation would be visible anywhere from 20 to 200 metres away. The excavation measures 65 metres in length and gradually rises upon an incline of 45 degrees to a height of approximately four metres. Some witnesses described a small bump or lip at the west end of the excavation measuring approximately 10 to 18 inches. When approached from the west the excavation is not visible until one is 10 to 30 metres away. Mr. Skopnik approached the excavation from the west.

[30] The evidence at trial indicated that the excavation was man-made and that it had been created in the early 1980s, but that the defendants could find no record of its creation.

[31] Users of the trail gave evidence that they did not know on whose land the excavation was located. It was difficult even for representatives of BC Rail to determine whether it was on the ROW. There was no evidence that BC Rail was aware of the trail or knew that it proceeded through the excavation. Mr. McMillan was asked what would have happened if someone had reported the use of this area by recreational users. He responded that BC Rail would have ensured that the entrants were not riding up on the railway shoulder but would not otherwise have done anything to the site.

[32] It is clear that BC Rail's inspection program concentrates on the safety of rail operations and does not typically extend the full breadth of its extensive ROW, which apparently, at least in this location, is left much in its natural state.

[33] I contrast this evidence with the conclusion of the learned trial judge (at para. 9):

[…] Thus, the railway right-of-way is unlike utility rights-of-way which can safely be neglected by the occupier once the transmission line or pipeline is completed. Arguably, railroad rights-of-way are subject to more organized inspection and monitoring than many urban sites where occupiers are subjected to normal (s. 3(1)) liability as a matter of course.

[Emphasis in original.]

[34] I have already related the misapprehension as to the extent of BC Rail's inspection of the ROW.

[35] As to the supposed distinction between the inspection of railway rights of way and the rights of way of hydro-electric or pipeline companies, with respect, there was no evidence before the court that the latter can be, or are, "safely … neglected by the occupier once the transmission or pipeline is completed".

[36] Indeed, in respect of federally regulated pipelines, we find this direction to operators in the Onshore Pipeline Regulations, 1999, SOR/99-294 at s. 39:

A company shall develop a surveillance and monitoring program for the protection of the pipeline, the public and the environment.

[37] Section 38(2) of the Pipeline Act, R.S.B.C. 1996, c. 364, requires that provincial pipeline companies annually inspect their pipelines to root out and destroy "thistles and noxious weeds growing on its land adjacent to its pipelines". Clearly this calls for regular inspections of the pipeline right of way.

[38] And with respect to public utilities generally, we find in s. 38 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, (the "UCA"), a general duty on a public utility (like BC Hydro or FortisBC) to "maintain its property and equipment in a condition to enable it to provide a service to the public that the commission considers is in all respects adequate, safe, efficient, just and reasonable".

[39] Clearly, in fulfilling this duty, a public utility must regularly inspect its rights of way and the distribution and transmission lines and structures located thereon.

[40] The trial judge's distinction of the BC Rail ROW and other utility rights of way leads to the second concern with the trial judge's analysis and that is the conclusion at para. 10:

[41] I observe first that there is, with respect, nothing in the purposes of the 1998 amendments to the Act which would preclude a railway right of way coming within the rationale for the lower standard of care.

[42] Second, the case turns on the phrase "utility rights of way and corridors excluding structures on them".

[43] Mr. Justice Leask, at para. 7, refers to BC Rail's submission:

[…] In his submission, counsel points out that the phrase “utility right of way and corridor” is not defined in the Occupiers Liability Act, but would probably cover situations such as electricity transmission lines and pipeline corridors. He also says there are no cases on the issue of whether a railway is a “utility” within the meaning of the statutory provisions. Counsel very fairly concedes that for some purposes, railways have been found to be utilities (see Chen v. Hsu (1997), 8 R.P.R. (3d) 138 (B.C.S.C.) aff’d (1998), 17 R.P.R. (3d) 206 (B.C.C.A.)) and for other purposes they are not (the Utilities Commission Act, R.S.B.C. 1996, c. 473 defines “public utility” to exclude railways).

[44] Counsel's reference to the UCA is a bit of a red herring. It is not so much that the UCA defines "public utility" to exclude railways. It simply defines the phrase in a way that does not include a railway. A different inference may well have arisen had the Legislature expressly excluded railways from "utility" in the UCA. I do not read the UCA as purporting to create an exhaustive listing of utilities.

[45] But the reference to Chen v. Hsu (1997), 8 R.P.R. (3d) 138 (B.C.S.C.), aff'd (1998), 103 B.C.A.C. 77, is important. In that case, a purchaser of real property under an interim agreement of purchase and sale refused to close the transaction because of the presence of a restrictive covenant registered against title to the lands.

[46] The covenant required that the Canadian Pacific Railway approve of the design of any dwelling house to be built on the lands.

[47] Section 1 of the contact of purchase and sale provided as follows:

TITLE: Free and clear of all encumbrances except subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown registered or pending restrictive covenants and rights of way in favour of utilities and public authorities, existing tenancies set out below, if any, and except as otherwise set out herein.

[Emphasis added.]

[48] In determining whether the vendor had performed his obligations under the contract, Mr. Justice Drossos posed this question (para. 12): "Was the restrictive covenant an encumbrance in favour of a utility and therefore an exception under section 1 of the Contract?"

[49] Mr. Justice Drossos concluded (at para. 16):

No, while the CPR is a utility in some areas, it is not in others. The restrictive covenant in the circumstances of this case cannot reasonably be viewed as necessary or relevant to the operation of the CPR as a utility as the restrictive covenant was simply related to development of the land. It has nothing to do with the CPR's operation as a utility.

[50] In arriving at this conclusion the learned judge reasoned as follows (at paras. 26 and 27):

Railroads, including CPR, are public utilities as they provide a use or service to the public. Therefore, rights-of-way and restrictive covenants necessary or used for their operation as a utility would fall within the exemption provision to free and clear title contained in s. 1 of the Contract of Purchase and Sale.

Examples of these encumbrances may be a route for repair or emergency personnel to access the railway line or a portion of the property that actually contains part of the railway line. In this case, the restriction requires approval by the CPR of the architectural design of a dwelling house and the restrictive covenant is registered in the name of The Royal Trust Company. This cannot be taken to be a restriction necessary to the operation of CPR as a public utility. Therefore, the restrictive covenant is not an exception which would render the title free and clear per s. 1 of the Contract.

[51] This is express authority in British Columbia for the proposition that, for the purposes of a contract involving the sale of real property, a railway right of way can come within the phrase "restrictive covenants and rights of way in favour of utilities"; that in British Columbia, at least, a railway is a utility.

[52] An appeal was taken to this Court in Chen and Mr. Justice Hollinrake (Goldie and Rowles JJ.A. concurring) said this (at para. 5):

All of the issues before us were dealt with by the judge below in his reasons for judgment. I agree with the conclusions of the trial judge and the reasons he gave for those conclusions. I do not propose to set out the reasons given by the judge having concluded as I have that I agree with each and everyone of them. As can be seen from the above I would dismiss the appeal.

[53] Chen was decided by the Court of Appeal on 6 January 1998, coincidentally only months before the adoption of the 1998 amendments to the Act.

[54] In my view, it is authority for the submission that the same phrase (effectively) in the Act includes the BC Rail right of way.

[55] Further, as I have discussed, this interpretation does no violence to the purposes which the amendments to the Act were intended to serve. Indeed, in my view, it is consonant with those purposes.

[56] I conclude that the learned trial judge erred in deciding that the portion of the ROW where this accident occurred did not come within the words of s. 3(3.3)(d) of the Act.

[57] As noted above, for the lower standard of care to apply, the land must not only be a utility right of way, but Mr. Skopnik must be a person described in s. 3(3.2).

[58] Notwithstanding his conclusion that the accident scene was not one of the categories of premises described in s. 3(3.3), the learned trial judge considered whether Mr. Skopnik came within either class of persons described in s. 3(3.2)(a) or (b), viz.

(a) the person who enters is trespassing, or

(b) the entry is for the purpose of a recreational activity.

[59] I intend to deal only with the judge's conclusion on the issue of trespass as it settles the question.

[60] Mr. Justice Leask began his discussion of this issue by again reviewing some of the legislative history of the Act.

[61] At para. 26, the learned judge noted that the original 1974 exception in s. 3(3) of the Act regarding persons who "willingly assume" all risks was very narrow after the Supreme Court of Canada's decision in Waldick v. Malcolm, [1991] 2 S.C.R. 456, which concluded that such statutory language was a codification of the doctrine of volenti non fit injuria.

[62] Mr. Justice Leask noted the 1989 amendments to the Act recast s. 3(3) as follows:

(3) Notwithstanding subsection (1), an occupier has no duty of care to a person

(a) in respect of risks willingly accepted by that person as his own risks, or

(b) who enters premises that the occupier uses primarily for agricultural purposes and who would be a trespasser under the Trespass Act,

other than a duty not to

(d) act with reckless disregard to the safety of the person or the integrity of his property.

[63] It is the trespasser described in s. 3(3)(b) who is of interest.

[64] The provisions of the Trespass Act in force at the relevant times (that is, before amendments effective in 2005 and 2007) are these (R.S.B.C. 1996, c. 462):

1 In this Act:

"enclosed land" includes land that is

(a) surrounded by a lawful fence defined by or under this Act,

(b) surrounded by a lawful fence and a natural boundary or by a natural boundary alone, or

...

4 (1) A person found inside enclosed land without the consent of its owner, lessee or occupier is deemed to be a trespasser.

[65] Mr. Justice Leask at para. 31 of his analysis stated:

A key distinction between trespass at common law and trespass under the Trespass Act is the knowledge of the trespasser. At common law, people were trespassers if they were present on the premises of another without permission, even if they were completely unaware of the fact. Indeed, even an honest belief that one was not trespassing was irrelevant. Under the Trespass Act, people are not trespassers unless the premises are enclosed or notices are posted. On the facts of this case, Mr. Skopnik would be a trespasser at common law, but not under the Trespass Act. …

[66] The learned judge then noted that:

… The issue that counsel have debated in this case is: do the 1998 amendments to the Act change BC Rail’s duty to Mr. Skopnik?

[67] At paras. 32 and 33, the judge discussed BC Rail's submission and that of Mr. Skopnik and stated his conclusion:

BC Rail’s argument is straightforward. After 1989, the statute spoke of “trespassers under the Trespass Act”. The 1998 amendments eliminated the reference to the Trespass Act and simply referred to trespassers. When interpreting legislative intent, it is normally appropriate to give effect to every word included or excluded in a statute or statutory amendment. Applying this approach, the absence of the previous reference to the Trespass Act would mean that the legislature intended to revert to the common law meaning of trespass.

Mr. Skopnik’s argument involves careful scrutiny of the actual legislative history of the 1998 amendments. First, there is the language used in the 1994 Report of the Law Reform Commission. Then there is the language used by the Minister of Environment, Lands and Parks in the debate on the second reading of the proposed amendments. Although the subsequent discussion in the legislature displayed some confusion among the MLAs as to the effect of the proposed amendments, it is very difficult to find an intention to return to a common law definition of trespass. In my view, both the Law Reform Commission and the Legislative Assembly intended to apply the then existing standard for trespass to agricultural lands to the expanded categories of premises being covered by the 1998 amendments. In other words, they intended to define trespasser as it is defined in the Trespass Act rather than giving the word its common law meaning.

[68] The reference to "the language used by the Minister of Environment, Lands and Parks in the debate on the second reading of the proposed amendments" refers to this remark by the Minister earlier highlighted by the trial judge:

… With respect to trespassers, the lower duty of care currently applies to trespassers on agricultural land. These amendments will extend the lower duty of care to trespassers on the enumerated classes of undeveloped land.

[69] While a ministerial statement may be looked at to discover the object or purpose of a statute (per Southin J.A. in Lewis (Guardian ad litem of) v. British Columbia) (1995), 12 B.C.L.R. (3d) 1 at para. 136), "the frailties of Hansard evidence are many" (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 35); and "Parliamentary debates surrounding the enactment of legislation must be read with caution, because they are not always a reliable source for the Legislature's intention" (Construction Gilles Paquette Ltée. v. Enterprises Végo Ltée., [1997] 2 S.C.R. 299 at para. 20).

[70] Here, I respectfully conclude that the learned trial judge has placed too much emphasis on the Minister's comment in debate and has improperly extrapolated his interpretation of the remark to the mind and will of the entire Legislature.

[71] The modern approach to statutory construction is well-known and it has recently been restated in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 (at para. 26):

[…] Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[72] The Legislature has chosen to simply refer to "trespassers" and not a species of them under the Trespass Act. That Act did not subsume the common law of trespass. In my view, there can only be one thing taken from the 1998 amendments. They were intended to extend the lower standard of care in the circumstances described, to persons who, on the application of the common law, are trespassers. That, in my view, is consistent with the purposes of the 1998 amendments and gives effect to the conscious choice of the Legislature to abandon reference to "a trespasser under the Trespass Act".

[73] I accept Leask J.'s interpretation of the common law (at para. 31) and I conclude that Mr. Skopnik was a "trespasser" at the time of the accident for the purposes of s. 3 of the Act.

[74] As Mr. Skopnik entered a utility right of way as a trespasser, s. 3(3) defines the duty of care, which at the relevant time, BC Rail owed to Mr. Skopnik:

Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person’s property, or

(b) act with reckless disregard to the safety of the person or the integrity of the person’s property.

[75] There was no evidence at trial which could in any way support a conclusion that BC Rail, in respect of this portion of the ROW, created "a danger with intent to do harm to the person or damage to the person's property".

[76] That leaves the question asked in subsection (3)(b):

Did BC Rail act with reckless disregard to the safety of the person or the integrity of the person's property?

[77] I agree with the appellant that the reference to "reckless disregard" invokes the common law test regarding duties owed by an occupier to a trespasser: see in this regard Cormack v. Mara (Township) (1989), 68 O.R. (2d) 716 (C.A.) (leave to appeal refused [1989] 2 S.C.R. vi).

[78] In Cormack, the Ontario Court of Appeal held, under similar legislation, that the phrase "act with reckless disregard of the presence" of a trespasser (at p. 724):

[…] means doing or omitting to do something which he or she should recognize as likely to cause damage or injury to [the trespasser] present on his or her premises, not caring whether such damage or injury results.

[79] In my view, that describes the extent of the duty under s. 3(3)(b) of the Act although I recognize the slightly different wording there from that found in the Ontario legislation.

[80] There is simply no evidence in the record which could support such a finding in the case at bar.

IV.

[81] It follows that I have concluded that the learned trial judge erred in not applying the lower standard of care set out in s. 3(3) of the Act in the circumstances of this case.

[82] Having applied the appropriate standard, no breach of that standard can be sustained on the record and the action against BC Rail must be dismissed.

[83] I would allow the appeal and dismiss the action.

“The Honourable Mr. Justice Bauman”

Reasons for Judgment of the Honourable Mr. Justice Tysoe:

[84] I have read the draft reasons for judgment of Madam Justice Saunders and Mr. Justice Bauman. I agree with the reasons of Mr. Justice Bauman, and I wish to make some additional comments as to why I concur in his conclusion that BC Rail is a utility for the purpose of section 3(3.3)(d) of the Occupiers Liability Act.

[85] Madam Justice Saunders points out that the definition of “public utility” in the Canadian Oxford Dictionary does not refer to railways and she concludes that the usual meaning of “utility” does not include railways. The use of the abbreviation “etc.” in the definition in the Canadian Oxford Dictionary indicates that the list of examples was not intended to be exhaustive.

[86] The Oxford English Dictionary, vol. XII, 2d ed., at 779, has a somewhat broader definition of “public utility”:

i. public utility: a service or supply, such as electricity, water, or transport, considered necessary to the community, usu. controlled by a (nationalized or private) monopoly and subject to public regulation.

The definition of “utility” includes “public utility” (vol. XIX, 2d ed., at 369).

[87] The New Encyclopaedia Britannica, 15th ed., vol. 9 (Chicago: Encyclopaedia Britannica, 1998) at 780 similarly defines the term “public utility” as follows:

public utility, enterprise that provides certain classes of services to the public, including common carrier transportation (buses, airlines, railroads, motor freight carriers, pipelines, etc.); telephone and telegraph; power, heat, and light; and community facilities for water, sanitation, and similar services. ...

[88] These broader definitions are close to the meaning given to the word “utility” in Chen v. Hsu, the authority primarily relied upon by Mr. Justice Bauman, where it was held at paragraph 26 that railroads are public utilities because “they provide a use or service to the public”.

[89] In my opinion, these definitions support the conclusion that the ordinary sense of the word “utility” includes railways such as BC Rail. Furthermore, if the word “utility” can be given either a narrow interpretation that excludes railways or a broad interpretation that includes railways, it is my view that it should be given a broad interpretation to achieve the purpose of section 3(3.3)(d) of the Occupiers Liability Act.

[90] As detailed in the reasons of Mr. Justice Bauman, section 3(3.3) was added to the Act in 1998 in response to calls for reform by outdoor recreationalists who were willing to assume the risk of hazards in return for being allowed greater access. This was commented upon by the Honourable C. McGregor when introducing the amendment for second reading:

In planning the route for the Trans Canada Trail, government and community groups encountered a longstanding issue in British Columbia. Fear of liability is causing landowners to restrict recreational access to their properties. In the context of the Trans Canada Trail, this means that private land owners are reluctant to allow recreational trail use of their land and that local communities are hesitant to assume full responsibility for managing local portions of the trail.

Amendments to the Occupiers Liability Act will help to resolve these problems by lowering the duty of care owed to non-paying recreationalists on recreational trails and certain classes of undeveloped lands. These amendments more equitably balance the duty of care between occupiers and the non-paying recreationalists …

(British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), Vol. 9, No. 16 (11 May 1998) at 7681)

Comments were also made to the effect that the lowered duty of care was being made applicable to trespassers as well as recreationalists.

[91] Words of a statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute and the intention of the Legislature or Parliament, as the case may be. In this case, the clear intention of the Legislature was to make the lower duty of care applicable to certain categories of lands so that use of the lands by recreationalists would not be restricted by the owners of the lands because of fear of liability.

[92] In my opinion, the broader interpretation of the word “utility” (i.e., to include railways) is more consistent with the Legislature’s intention to encourage use of suitable lands by recreationalists. A railway right of way is similar in nature to a right of way of other utilities. A right of way typically consists of cleared lands that are suitable for use by recreationalists (in this regard, it should be noted that the lower duty of care under section 3(3) does not apply in respect of structures located on utility rights of way). There is nothing in the Act or in the debate in the Legislature to suggest that the frequency of inspection of the right of way by its owner or the degree of danger represented by the structure on the right of way is to be a factor in determining whether a right of way qualifies to be regarded as a utility right of way for the purpose of section 3(3.3)(d).

[93] It is for these reasons, together with the reasons of Mr. Justice Bauman, that I have reached the conclusion that a railway is a utility for the purpose of section 3(3.3)(d) of the Act. Accordingly, I agree with his proposed disposition of the appeal and the action.

“The Honourable Mr. Justice Tysoe”

Reasons for Judgment of the Honourable Madam Justice Saunders:

[94] I have had the benefit of reading, in draft form, the reasons for judgment of my colleagues Mr. Justice Bauman and Mr. Justice Tysoe. While I agree with much of Mr. Justice Bauman’s analysis, I respectfully differ with him and with Mr. Justice Tysoe as to the interpretation of the phrase found in s. 3(3.3)(d), “utility rights of way and corridors”. Further, on an issue not addressed by Mr. Justice Bauman under s. 3(3.3)(b)(ii), I conclude that the lands on which the accident occurred are not vacant or undeveloped.

[95] As I see it, the interpretation issue that has divided us centres on the effect to be given to a limiting provision in the Occupiers Liability Act, R.S.B.C. 1996, c. 337: in circumstances in which more than one interpretation of a phrase is viable, what breadth of interpretation is appropriate for a provision that limits the duty of care owed in certain circumstances, excepting a narrow class of occupiers from the broader, higher standard of care that applies in all other circumstances? In my view, the limiting provision should not be read more broadly than is required by the words employed by the legislature; where an interpretation can be placed upon the disputed language that engages the overall object of the legislation, that approach is to be preferred to one that broadly construes the limiting provision and thereby narrows the generally applicable standard. This is particularly so where, as here, the issue is whether a type of enterprise is included within another noun and the Legislature has demonstrated in the past that when it desires to refer to that enterprise, it does so expressly.

[96] In the result, I would find that the appellants may not take the benefit of the diminished standard of care set out in s. 3(3) of the Act. On this conclusion the standard of care in s. 3(1) of the Act applies. However, I am of the view that the trial judge asked himself the wrong question when considering whether the appellants meet the standard under that section, with the result that the appeal should be allowed and a new trial ordered to determine the issue under s. 3(1).

Discussion

[97] The facts leading to Mr. Skopnik’s serious injury are set out in Mr. Justice Bauman’s reasons for judgment and I will not repeat them here. My point of disagreement is as to the application of s. 3 of the Act: which of the two standards of care applies?

[98] Section 3 of the Act provides:

3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

…

(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person's property, or

(b) act with reckless disregard to the safety of the person or the integrity of the person's property.

…

(a) the person who enters is trespassing, or

(b) the entry is for the purpose of a recreational activity and

(ii) the occupier is not providing the person with living accommodation on those premises.

(3.3) The categories of premises referred to in subsection (3.2) are as follows:

…

(b) rural premises that are

…

(ii) vacant or undeveloped premises,

…

(d) utility rights of way and corridors excluding structures located on them.

[99] The effect of these provisions is that unless the diminished standard of care in s. 3(3) applies as determined with reference to ss. 3(3.2) and 3(3.3), the relevant standard of care is the generally applicable one set out in s. 3(1).

[100] The appellants contend that s. 3(3) applies because s. 3(3.2) applies. They say Mr. Skopnik was a trespasser and he entered premises described in subsection (3.3). As to the premises, they say there are two reasons their lands come within that provision, first that the premises are rural premises, being vacant or undeveloped within the meaning of s. 3(3.3)(b)(ii), and second, the property is a utility right of way within the meaning of s. 3(3.3)(d).

[101] Mr. Justice Leask found both that the lands are not vacant or undeveloped and that they are not part of a utility right of way. Mr. Justice Bauman addressed the latter issue, which on his view was sufficient to dispose of the application of s. 3(3). I address this issue first.

[102] I accept that certain case authority has recognized that the term “utility” may, but does not necessarily, encompass a railway. Such a case is Chen v. Hsu (1997), 8 R.P.R. (3d) 138 (B.C.S.C.), aff’d (1998), 103 B.C.A.C. 77. That case, however, concerned the interpretation of a private agreement and not a public statute.

[103] In approaching the meaning of a word in a statute, a court is guided by the classic statement of Elmer Driedger in his Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, referred to in numerous cases including Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 at para. 26:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[104] What then, does the word “utility” as used in the Act mean? The Act does not define the word. Nor does the Interpretation Act, R.S.B.C. 1996, c. 238. Thus, one must look further to find its meaning.

[105] A starting place is a dictionary that may reflect the usage in this country. The Canadian Oxford Dictionary relates the word “utility” to “a thing able to satisfy human needs”, and a public utility is defined, without reference to railways, as “electricity, natural gas, etc., as provided by a public utility”.

[106] One may then ask how the Legislature has treated railways in its enactments. There is, of course, the Railway Act, R.S.B.C. 1996, c. 395, applying to railways within provincial jurisdiction, which makes special provision for railways in a number of areas, including as to an action for damages.

[107] Further, there are examples of specific reference to railways in legislation, demonstrating the Legislature’s willingness to single out railways other than in the Railway Act. When first enacted in 1938, the Public Utilities Act, S.B.C. 1938, c. 47, specifically included railways in the definition of public utility, but excepted the Pacific Great Eastern Railway (BC Rail’s historical name). The 1938 definition referring to railways continued in force until the repeal of the Public Utilities Act in 1973 and its replacement by the Energy Act, S.B.C. 1973, c. 29. The Energy Act defined only an energy utility and a power utility. Today, such utilities are covered by the Utilities Commission Act, R.S.B.C. 1996, c. 473, which defines a public utility in s. 1 by reference to electricity, natural gas, steam or other agent for the production of light, heat, cold or power, or for the conveyance of information or communications. Railways are not mentioned in the definition and, I think, are viewed as not covered by that Act today.

[108] Another example of the Legislature making express reference to “railway” when such is intended is found in the Land Title Act, R.S.B.C. 1996, c. 250. In s. 218, a provision concerning the creation of a statutory right of way, reference is made to “a public utility, a pulp or timber, mining, railway or smelting corporation”. Likewise, the Mines Act, R.S.B.C. 1996, c. 293, s. 16, empowers an inspector to order the manner of operation of a mine, so as not to interfere with entities including a “public utility, highway or railway …”.

[109] Whether this particular attention to railways by the British Columbia Legislature is a reflection on the historical importance of railways to British Columbia and the historical role played by the coming of rail in British Columbia’s entry into Confederation, is an interesting question. In the least, on review, the legislative experience in British Columbia supports the view that where the Legislature intends a provision to apply to railways, it says so plainly.

[110] I turn next to the structure of the Act. The Act establishes a generic standard of care and then detracts from that standard in limited circumstances for the reasons expressed by Mr. Justice Bauman. The Act, as noted by Mr. Justice Bauman, is a codification of the common law: Weiss v. Young Men’s Christian Assn. of Greater Vancouver (1979), 11 B.C.L.R. 112 (C.A.). Its purpose is to establish a uniform scheme in which an occupier owes a duty and an individual who has been injured on an occupier’s premises, where the occupier is in breach of the statutory standard of care, may recover for the injury. The statutory provision in question derogates from that general standard to enhance recreational opportunities in the province by opening certain lands that would otherwise be closed to recreational users for fear of liability. I do not see the need to expand the definition of “utility” to include “railway” as necessary to effect this objective, nor does the structure of the Act compel the interpretation contended for by the appellants; in my view, the conclusion that the word “utility” does not include “railway” is consistent with the general purpose of the Act and does not undermine the legislative intent reflected in s. 3(3.3).

[111] Further, there is precedent for a strict construction where language is capable of two meanings, and where there is competition between the application of general remedial provisions of legislation and a provision limiting or excepting the general provision from application. For example, in Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275, the Supreme Court of Canada had before it the proper interpretation and interrelationship of provisions of two statutes, one of which would operate to extend a limitation period to the case and deny the plaintiff the right to sue for damages arising from a slip and fall, the other of which would not. Mr. Justice Estey stated at p. 284:

When one interpretation can be placed upon a statutory provision which would bring about a more workable and practical result, such an interpretation should be preferred if the words invoked by the Legislature can reasonably bear it; and this is particularly so where the alternative interpretation will reduce the right of recovery of members of the public who suffer loss or injury.

[112] In a similar vein, the Supreme Court of Canada has strictly construed statutory exceptions to a general rule in Barrette v. Crabtree Estate, [1993] 1 S.C.R. 1027, and National Trust Co. v. Mead, [1990] 2 S.C.R. 410.

[113] As I have concluded that the usual meaning of “utility”, as it would be understood by a reasonable person in the community, does not stretch to include railways, the structure of the Act does not compel that result, and the Legislature has given ample precedent of specific reference to railways when such is intended, I consider that the term “utility” does not include “railway” for the purpose of the Act and s. 3(3.3)(d) does not operate to limit the standard of care.

[114] I turn then to the judge’s conclusion that the lands were vacant or undeveloped. He said:

[6] I disagree with BC Rail’s submissions for one reason. The BC Rail right-of-way is located on both sides of the BC Rail tracks. In my view, the BC Rail right-of-way at the accident scene is neither “vacant” nor “undeveloped”. It has been developed by the construction of the railway track and it is not “vacant” because it contains the railway track. I reject BC Rail’s submission and find that the accident scene does not come within the definition of rural premises set forth in s. 3(3.3)(b)(ii) of the Occupiers’ Liability Act.

[115] On appeal, the appellants say that the lands are rural, vacant, undeveloped, and have the very nature of premises at which the Legislature aimed the reduced standard of care. Although it is more than passing strange that an excavation (removal of material) would be made so near the train track without the active participation of the railway, we must take it that the fact there was a man-made excavation does not, by itself, rebut the claim that the lands were not undeveloped.

[116] The appellants say that the lands' vacant and undeveloped character is evidenced by the fact people did not know whether the accident happened on the railway right of way or not. I do not agree with this characterization. To the extent that the emptiness or raw nature of the land is a question of fact, the trial judge’s conclusion that it is not vacant or undeveloped is supported by the evidence and is beyond this Court’s ability to second guess. To the extent there is an issue of interpretation as to the degree land must be empty or raw to fit within s. 3(3.3)(b)(ii), I would not interfere.

[117] In my view, the Legislature could not have intended that an entire tract of land must be engaged in human activity, else it be considered vacant or undeveloped for the purposes of s. 3(3.3). I see this issue as a question of the degree of human interference with land and the degree of occupation of that land required for characterization of it as neither vacant nor undeveloped. As to vacancy, this may be answered by considering whether there is human presence with sufficient proximity to the area in question as to allow the degree of vigilance consistent with the standard of care set out in s. 3(1). If that presence is not sufficiently proximate to allow the appropriate level of vigilance, one may say the land is vacant. Whether the land is undeveloped may be answered by considering whether the tract of land, in general terms, has been disturbed for a particular use or whether there has been construction upon the land. If not, one may say the land is undeveloped.

[118] Here, the right of way is a relatively narrow band with a standard width of 100 feet on each side of the track, wider in some areas. Supplies and equipment are stationed sporadically on the right of way to facilitate maintenance. The track is laid on the roadbed constructed on the right of way. While human activity has not disturbed the entire surface of the right of way, there has been sufficient disturbance of the raw land, sufficient construction upon the land, and sufficient regular attendance of people upon the land, that one cannot say the right of way is either vacant or undeveloped, in my view. It follows I would not agree with the appellants that s. 3(3.3)(b)(ii) is met in these circumstances.

[119] As a result of these conclusions, I do not consider that the lower standard of care in s. 3(3.3) is engaged or that s. 3(3.2) therefore applies. On this conclusion, the relevant standard of care is that set out in s. 3(1). However, did the trial judge correctly consider the standard of care? I have concluded he did not.

[120] Section 3(1), again, provides:

[121] The trial judge held in obiter dicta:

[15] On the evidence presented in this trial, I am satisfied on a balance of probabilities that the BC Rail premises where the accident took place were not “reasonably safe”.

[122] In this passage, the trial judge, in my view, addressed only part of the question. Section 3(1) requires a judge to answer not only whether the premises were reasonably safe, but also whether the appellants took reasonable care. Not having asked or answered that question in its entirety, the judge, in my view, fell into error, in a way that cannot be fixed by this Court.

[123] Whether the appellants took reasonable care is a question of fact. In earlier passages the trial judge addressed the fact the hazard was the product of human activity by unknown persons. In the passage replicated above he addressed the ease with which the accident site could be made safe. However, nowhere did he address the probability of railway employees, acting in accordance with the applicable duty of care, discovering the hazardous area. That is a matter that would bear upon the case and is required to be taken into account in these circumstances. In my view, a new trial is required in which a trier of fact will decide the issue of liability by considering all questions under s. 3(1).

[124] It follows I would allow the appeal and remit the matter to the trial court for a new trial.

“The Honourable Madam Justice Saunders”