Ontario to clarify legal liability of landowners allowing trail access

A bill intended to “clarify the standard of care” required of Ontario landowners allowing public access to trails was tabled Thursday for second reading at Queen’s Park in Toronto.

If passed into law, Bill 100 would make changes to the Occupiers’ Liability Act, the Motorized Snow Vehicles Act and the Off-Road Vehicles Act.

“Currently there exists some legal ambiguity around what standard of care is owed to the users of trails,” Liberal tourism and culture minister Michael Coteau said in the legislature. “For example, if an [all-terrain vehicle] club charges membership fees for coordinating rides on a portion of an Ontario trail network, it is legally questionable what level of care is required from the business and from the owner of the trail. If Bill 100 is passed, it will clarify legislation, encouraging further participation between businesses and the owners of trails.”

Coteau introduced Bill 100, the Supporting Ontario’s Trails Act, in May, 2015.

The Ontario Occupiers Liability Act “specifies circumstances in which a person who enters on certain premises is deemed to have willingly assumed all risks and in which a modified duty of care applies,” the government explains in a note on Bill 100. “One of those circumstances is where a person enters certain premises for the purpose of a recreational activity and the person is not being provided with living accommodation by the occupier and no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association.”

With Bill 100, the Liberals propose to stipulate that fees (such as parking) which are “incidental to the entry or activity” on a trail would not constitute a fee for entry or activity. Bill 100 would also clarify that “the receipt by a non-profit recreation club or association of a benefit” would also not constitute an entry or activity fee.

“Landowners shared that they are hesitant to allow access for trail development due to liability concerns and that lawsuits are settled out of court due to fear of liability,” said Sophie Kiwala, parliamentary assistant to Coteau and Liberal MPP for Kingston and the Islands. “Consequently, a clarification is needed for the Occupiers’ Liability Act.”

Kiwala told the legislature Thursday that Bill 100, if passed into law, “would clarify the standard of care required by not-for-profit and public owners and managers of trails.”

For example, landowners “who charge incidental fees for access to the land, such as parking fees, would not have to make reasonable efforts to ensure that the trails are reasonably safe,” Kiwala added. “Under those circumstances, the individual trail user who comes on the owner’s land does so at their own risk. However, the owner still has an obligation to such a person not to injure them intentionally and not to act with reckless disregard for their safety.”