Conservation Area held to less onerous duty of care when skier wandered from trail

When a cross-country skier wanders from a marked trail onto “expansive and otherwise untamed property,” a conservation authority has a less onerous duty of care, the Ontario Court of Appeal has ruled.
In Schneider v. St. Clair Region Conservation Authority, Joanne Schneider had taken her family cross-country skiing in a public park in January 2005.
During the trip, Schneider inadvertently traversed over the top of a concrete wall, which was part of an abandoned water mill. The wall jutted through ice that covered the lake over which she was cross-country skiing, wrote Paul Martin in Dutton Brock’s newsletter ecounsel.
The wall had been concealed by considerable snow, and so barring the concrete wall was otherwise suitable for this recreational activity.
Under Section 4 of the Occupiers’ Liability Act, there is a lesser standard of care that requires occupiers to “not create a danger with deliberate intent of doing harm … and to not act with reckless disregard,” Martin wrote, adding the standard is invoked when a person “willingly assumes” risks.
“The central issue in Schneider involved a determination as to whether any of the specific scenarios outlined in Section 4(3) applied, which would deem that the conservation authority only owed the lesser duty,” Martin wrote.
“That subsection, in conjunction with Subsection 4, prescribes that a person is deemed to have willingly assumed ‘all risks’ when travelling on rural premises and recreational trails.”
The trial judge found the lake did not constitute a “recreational trail,” because it was off the marked trail, and therefore the exemption from the usual duty of care did not apply.
But the Court of Appeal overturned this. Because the lake was off of the marked trail, the Court of Appeal stated, it would be unjust to hold the Conservation Authority to the higher standard of care where the plaintiff had wandered from the marked trail.