CITATION: Cotnam v. The National Capital Commission, 2014 ONSC 3614

DIVISIONAL COURT FILE NO.: DC – 13 - 1958

DATE: 2014-07-23

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HEENEY R.S.J., LOFCHIK AND KITELEY JJ.

BETWEEN:	) )
JOHN MARK COTNAM Plaintiff/Responding Party – and – THE NATIONAL CAPITAL COMMISSION Defendant/Appellant	) ) ) ) ) ) ) ) )))	John Mark Cotnam, Self-Represented
		Sarah Sherhols, for the Defendant/Appellant
	)
	)
	)	HEARD: June 13, 2014 in Ottawa

LOFCHIK J.:

 

[1]                The National Capital Commission (“NCC”) appeals the Order of McLean J. rendered May 9, 2013, which dismissed its motion for summary judgment. In his decision,  the motions judge determined that section 4 of the Occupiers Liability Act did not apply to the current action and that if it did, this section contained a rebuttable presumption that required proceeding to trial for a full determination of the facts. The motions judge also found that a summary judgment motion was not appropriate in the circumstances, guided largely by the fact that the action is proceeding under simplified procedure pursuant to Rule 76 of the Rules of Civil Procedure.

 

Background

[2]               On July 14, 2011, the  Respondent commenced proceedings against the NCC with respect to injuries he claims to have suffered on July 17, 2009 while bicycling on the Experimental Farm pathway, a recreational bicycle pathway in the City of Ottawa. The Respondent claims he fell while negotiating a curve on the pathway resulting in injury to himself and damage to his bicycle. The Respondent alleges that the signage on the pathway was improper thereby constituting a danger.

[3]               The Occupiers’ Liability Act R.S.O. 1990, Chapter O.2 provides as follows:

            3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of   the case is reasonable to see that person entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises…

            4.(1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person 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…

            4.(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1)…

               (c) where the entry is for the purpose of a recreational activity and,

                  (i) no fee is paid for the entry or activity of the person… and

                  (ii) the person is not being provided with living accommodation…

            4.(4) The premises referred to in subsection (3) are…

               (f) recreational trails reasonably marked by notice as such.

[4]                The motions judge dismissed the motion for summary judgment, finding that section 4 of the Occupiers’ Liability Act did not apply to the events giving rise to this action and if it did, there was a rebuttable presumption the  Respondent could advance to dislodge the lower standard of liability that section of the Act imposes on the Appellant. The  motions judge was also not persuaded that a motion for summary judgment should be brought nor granted in the context of a simplified action where there were no evidential facts in dispute between the parties.

[5]               On August 28, 2013, the Appellant obtained leave to appeal. In that decision, Beaudoin J. found that the reasons of  the motions judge with reference to section 4 of the Occupiers’ Liability Act were in conflict with established jurisprudence, stating that if the decision were allowed to stand, section 4 of the Act would be undermined. (See Decision of Beaudoin J. at para. 8, Appellant’s Appeal Book and Compendium, Tab 9).  Beaudoin J. also noted that the motions judge had referred to no contested evidence and that this was an instance where summary judgment should not be refused outright. (See Decision of Beaudoin J. at paras, 10 and 11, Appellant’s Appeal Book and Compendium, Tab 9).

 

Analysis

 

[6]               The issue in this appeal is whether the motions judge erred in dismissing the motion for summary judgment on May 9, 2013.

 

[7]               There was no dispute before the motions judge or before us, that the pathway in issue was a “recreational trail” as set out in section 4(4)(f) of the Occupiers Liability Act. As noted, the motions judge expressed doubt as to whether that section applied and that even if it did, the assumption of the risk by the  Respondent set out in section 4(3) was a rebuttable presumption that required evidence to be introduced at trial. This decision appears to be in conflict with the analysis set out by the Ontario Court of Appeal in Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 (CanLII), 97 O.R. (3d) 81 (C.A.) [Schneider] and Dally v. London (City), [2004] O.J. No. 3231 (S.C.J.) and Kennedy v. London (City), 58 M.P.L.R. (4th) 244 (S.C.J.).

 

[8]               Sections 4(1) and 4(3) of the Occupiers Liability Act were reviewed by the Court of Appeal in Schneider where Rouleau J.A. held that these sections “work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity, and without payment of any fee is deemed to have willingly assumed the risks associated with the activity.” An occupier of these lands cannot be held responsible but for the proof of engaging in “reckless disregard” of the person on the premises.

 

[9]               None of the jurisprudence has come to the conclusion that there is a rebuttal presumption in the legislation as stated above. The motions judge’s decision is at odds with the analysis of section 4(4) by the Court of Appeal in Schneider. There, the Court held that the very purpose of section 4 was to reduce the duty of care owed by occupiers of recreational lands. We agree with the  Appellant that if the motions judge’s decision is allowed to stand, the purpose of section 4 could be undermined.

 

[10]           The motions judge indicated he was aware that summary judgment could be granted in the context of simplified actions, noting that it is rare. It would appear that the motions judge read, “rare” to mean “almost never”. He appears to have taken the position that summary judgment cannot be granted when there is a question of fact in issue. According to the motions judge, where such an issue arises, the matter had to proceed to trial. This is not consistent with the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII). While the Court held that summary judgment motions should be rare in simplified actions, it still held that the purpose of summary judgment motions is to winnow out claims that do not require proceeding to trial when there is limited contested evidence.

 

[11]           In his oral decision, the motions judge did not refer to any contested facts in the evidence before him. He appears to have concluded that as long as there was a finding of fact to be made, that this could only be made at trial. The motions judge was under the misapprehension that summary judgment cannot be granted when there is any question of fact at issue. (See Combined Air Mechanical Services at para. 256, Appellant’s Factum and Book of Authorities, Tab 4.).  In the motions judge’s reasoning, when such an issue arises, the matter must proceed to trial. This was in error, not only because this is an incorrect interpretation of the Combined Air Mechanical Services decision, but also in light of the fact that there was limited contested evidence between the parties. In light of the facts and the law, the decision of the motions judge is not correct.

 

[12]           On January 23^rd, 2014, the Supreme Court of Canada released a decision which dictates a new test for summary judgment under Rule 20 of the Ontario Rules of Civil Procedure. In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), the Supreme Court considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial,” as per Rule 20.04(2)(a). The Court held that summary judgment must be granted whenever there is no genuine issue requiring a trial and that there will be no genuine issue requiring a trial when the judge is able to arrive at a fair and just determination on the merits. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. The Court further held that the new fact finding powers granted to a motions judge in Rule 20.04 may be applied on a motion for summary judgment unless it is in the interest of justice for them to be exercised only at trial and that when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interests of justice to do so.

[13]           The motions judge’s conclusions about the applicability of the Occupier’s Liability Act and his conclusion that there was a rebuttable presumption that the  Respondent willingly assumed the risks when he entered the trail are in conflict with other decisions and constitute an error in law. Moreover, it does not appear that the motions judge undertook any analysis of the purpose of section 4 within the context of the entirety of the Occupiers Liability Act before dismissing the motion for summary judgment. In doing so, the motions judge did not determine the true issue at hand: whether the Appellant had displayed a reckless disregard that caused the  Respondent’s injury. This is the standard test when section 4 of the Occupiers Liability Act is properly applied.

 

[14]            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 results”: (Schneider v. St. Clair Region Conservation Authority (2009), 2009 ONCA 640 (CanLII), 97 O.R. (3d) 81 (C.A.) at para. 42). The  Respondent has brought no evidence to date to suggest that the  Appellant acted in this manner. In fact, the steps taken by the National Capital Commission in rehabilitating their recreational pathway as set out in the affidavit of Claude Potvin at paragraphs 5 through 8 and the fact that there was signage on the trail with respect to the curve in question show that the NCC took some steps for the safety of the users of the trail. If it were to be found that they used the wrong signage, that may well provide sufficient basis for concluding a breach of its s.3(1) duty; however it does not provide sufficient basis for concluding that the appellant acted with “reckless disregard to the presence of the users of the path.”

 

[15]           In the case of Herbert v. The City of Brantford, 2010 ONSC 2681 (CanLII) Whitten, J. found that lack of proper maintenance in an area of a trail known to be dangerous constituted “reckless disregard”. He also found with respect to signage and other traffic control devices, that, while the City could improve signage given the potential hazard that existed, the need for such improvement did not translate into “reckless disregard” as the City had obviously addressed the possible danger and taken steps to communicate it to users/cyclists. That is the same as the situation here.

[16]           The motions judge found that the matter may proceed to trial because there may be some evidentiary matters that may benefit the  Respondent should this happen. This is contrary to the jurisprudence which provides that on a summary judgment application a party must put his best foot forward and cannot count on going to trial in the hope that more favourable evidence might surface closer to trial (Kassian Estate v. Canada (Attorney General), 2013 ONSC 892 (CanLII) at page 28.)

 

[17]           For all of these reasons, the appeal is allowed and judgment will issue dismissing the within action.

 

[18]           At the conclusion of submissions, counsel for the Appellant provided a Bill of Costs and a costs outline.  The Respondent was not prepared to make submissions on costs.  As successful party on the appeal, the appellant is entitled to costs. Within 15 days of receipt of these reasons for decision, the Respondent shall respond in writing to the Bill of Costs and costs outline by

 

 

 

 

 

serving a copy of his submissions on Ms. Sherhols and by filing 3 copies with the office of the Divisional Court in Ottawa.  Ms. Sherhols may reply in writing within 10 days of service on her.

 

 

 

Lofchik J.

 

 

Heeney R.S.J.

 

 

Kiteley J.

Released:  July 23, 2014

CITATION: Cotnam v. The National Capital Commission, 2014 ONSC 3614

DIVISIONAL COURT FILE NO.: DC – 13 - 1958

DATE: 2014/07/23

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HEENEY R.S.J., LOFCHIK AND KITELEY JJ.   BETWEEN: JOHN MARK COTNAM Plaintiff/Responding Party – and – THE NATIONAL CAPITAL COMMISSION   Defendant/Appellant     DECISION ON APPEAL

 

 

HEENEY R.S.J.

LOFCHIK J.

KITELEY J.

 

Released:  July 23, 2014