| Thursday, 17 April 2008 03:45 |
| Kolapore Uplands Lawsuit and the Chill Effect. By Jeff Jackson , Algonquin College On August 1, 2004, a mountain biker was injured while riding trails on crown land. The resulting lawsuit has slowly been working through the justice system. The effect of this lawsuit has sent a chill over the volunteer world. The filing of the suit made headlines across Canada, but the final verdict – available in perhaps two years – most certainly won’t. In the public’s view, the story is this: volunteer to make trails for recreation; get sued. The details of the event can be Googled, but most notable is the proceedings from the Kolapore Summary Judgment available through our Professional Community -> Download Resources -> Web Links (you need to register to gain access - it's free!). Summary judgment was requested, which was essentially asking the court to recognize there is no grounds for a lawsuit and to dismiss the action, specifically that there was no Duty of Care (line [25] and [5] in the proceedings). As you may know, any finding of negligence must first prove that a duty existed, and it is here the suit will likely dwell, for if there is no duty, then negligence can not exist. Both the Crown and the ski club that maintains the trails in winter were named as at fault, and of course both argue they owe no duty [45]. The Crown typically gets off from such claims, so for the discussion below, I’ll omit their position. The ski club, being volunteer run and only managing the trails in the winter seems incredulous that they are roped into this. Their argument is that they have nothing to do with mountain biking, in practice or by permit [45]. The judge didn’t agree, and explains that there is enough evidence to entertain the question of duty of care, and therefore a trial should proceed [67]. What are the chances the plaintiff will be successful? First off, I should state I am rooting for the ski club. Secondly, I am not a lawyer or a judge, so my opinion can’t be taken for anything but an informed layman’s opinion. The proceedings above and indeed the whole suit will likely battle over definitions. The Occupier’s Liability Act protects the crown and land owners, but has specific definitions to apply (rural vs. developed land [68][72]). Disproving duty will be the focus of the defense. Unfortunately, there is enough grey area that I wouldn’t bet on that being successful – the proceedings point to the many questions that complicate the simple law. Negligence, though, has four criteria. Beyond a duty of care, a breach of that duty must be proven, injuries must have been sustained, and the breach must directly have created those injuries or losses (proximate cause). What’s more, the plaintiff can not have contributed to their own loss. Arguing no breach of duty and contributory negligence has a greater chance of success, in my opinion. The injuries were real, but contributory negligence is at play, and a good defense lawyer should be able to significantly reduce fault on the ski club. The injured rider was ‘experienced’ and had ridden the trails before [7]. While ‘assumed risk’ on its own does not have a strong legal track record, arguing the rider’s expertise should have avoided the situation should have merit, as was his choice to travel to a trail area and choose to participate in an activity with inherent risks. What’s more, I have seen photos of the hole he crashed into: it is about two feet off the trail, in a grassy meadow area. It looks like a grown in post hole, or perhaps an abandoned gopher hole. It was likely obscured by long grass, as was the whole meadow area except an ATV type path through the middle of it. One would have to ride off the trail to drop a wheel into it, much like probably 1000 other trees, rocks, streams and holes along that particular trail. On this point, then, there was likely no breach of duty. Negligence is found as failing to do what a reasonable person would have done in the same situation. No reasonable person would fill in every hole two feet to the side of every trail. In fact, there is legal precedent stating so (Longo v. Thorold (City). Theoretically I would like to think this would work, but there are other aspects to this case that will complicate things, as a reasonable person would have posted ‘Use trails at your own risk’ signs. Regardless of the outcome, the effect of this lawsuit has sent a chill over the volunteer world. The filing of the suit made headlines across Canada, but the final verdict – available in perhaps two years – most certainly won’t. In the public’s view, the story is this: volunteer to make trails for recreation; get sued. As more social services are downloaded from government to volunteer social clubs, threats such as these essentially limit availability of services or involvement of individuals. Well meaning volunteers are being held to the standard of professionals, for better or worse. There is some discussion about legislating limits on volunteer’s exposure to negligence, but that is a can of worms that no law maker wants to spill. The judge did find grounds to proceed, and okayed the lawsuit to proceed to court (incidentally this decision was appealed in April, 2007 and upheld – so to court it is…) |