Canada: Considerations Of Negligence And Contributory Negligence: Did The Trial Judge Get It Wrong?

Last Updated: May 25 2016
Article by Torkin Manes LLP

Bike parks, skate board parks are all becoming more prevalent today. But what responsibility does a municipality have in bringing the attention of all risks to the users of these parks? Isn't there an inherent risk in using these specialized parks? Should a municipality be responsible for drawing the attention of all of the risks to the users of said parks? The Court of Appeal recently addressed these issues and resoundingly agreed with the trial judge in the 2016 Court of Appeal decision of Campbell v. The Municipal Corporation of the County of Bruce. The decision was appealed to determine whether proper consideration of the concept of negligence as defined in the Occupiers' Liability Act (hereinafter "OLA") and the issue of contributory negligence, were properly addressed by the trial judge.

The Municipal Corporation of the County of Bruce (hereinafter "the municipality") constructed a mountain bike park for people to ride on various trails and obstacles. Mr. Campbell fell while trying to cross a constructed obstacle near the entrance of the park and fractured his C6 vertebrae and was rendered a quadriplegic.

In designing the park, the municipality relied on the International Mountain Bike Association for best practices and risk management. The park was also promoted as a "family park". The municipality also had a "difficulty rating system" similar to that of a ski hill. In addition, the municipality had signs in place which cautioned riders:

(1) to ride within their ability and at their own risk;

(2) that helmets are mandatory; and

(3) to yield to other groups.

The trial in this action proceeded on liability only. The trial judge found that the municipality had breached its duty under section 3 of the OLA in 5 ways:

(1) its failure to post proper warning signs;

(2) its negligent promotion of the Park;

(3) its failure to adequately monitor risks and injuries at the Park;

(4) its failure to provide an "adequate progression of qualifiers"; and

(5) its failure to make the Trial Area a low-risk training area.

It was also found that Mr. Campbell was not contributorily negligent in deciding to ride on Free Fall.

On appeal, it was argued that an onerous duty of care was imposed on the municipality, that was not in keeping with the OLA and the case law in the 1991 Supreme Court of Canada's decision in Waldick v. Malcolm. The Court of Appeal disagreed. It was found that the decision was in keeping with the governing case law which was encapsulated by Long Denning's judgment in Pannett v. McGuinness & Co. Ltd.,:

The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. (1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it.

It was also questioned whether the trial judge properly applied the test for inherent risk. The municipality argued that the trial judge fell into error by using the respondent's "subjective inability to foresee the actual damages he sustained as somehow delineating the scope of inherent risk." The Court of Appeal agreed with the trial judge who found that the municipality failed to warn users of the dangers of the Free Fall, where the respondent's injury took place, and that an ordinary person would not be able to appreciate and perceive the risk, notwithstanding their skill set.

The municipality also questioned whether the standard of care was properly articulated by the trial judge. The Court of Appeal agreed with the trial judge and stated that the trial judge identified the problems a rider could encounter in dealing with the "Free Fall". It was also questioned why there were no instructional signs regarding "risk of serious injury and the level and type of expertise required to ride this feature without serious injury". Furthermore, the park brochure should have contained more details about the difficulty of the feature and the skill level required for the Free Fall. Apparently, several riders had been injured on the wooden obstacles before the respondent's fall.

On appeal, the municipality challenged the conclusions on causation. However, the Court of Appeal again concurred with the trial judge in that "the respondent's injury would not have occurred if more detailed signage had been posted". Furthermore.

The trial judge clearly found that the respondent's decision to attend the park was influenced by the promotion of the park as a family venue. Accordingly, it was open to the trial judge to conclude that the respondent's injuries would not have occurred if the park was promoted more accurately

Lastly, in terms of contributory negligence, the Court of Appeal gave deference to the trial judge, because a "decision on contributory negligence is one of mixed fact and law and is entitled to deference, absent a palpable and overriding error".

The Court of Appeal agreed with the reasons of the trial judge:

In finding that the County breached its duty under s. 3(1) of the OLA, I have already concluded that the risks of Free Fall were a hazard and not readily apparent. As such, [Stephen Campbell] would have lacked foresight of the severe consequences of his behaviour.

Campbell articulates that an occupier is responsible for reasonably informing participants of the risk that they are going to encounter. Given that this particular park feature had previously caused injuries, it was found that the municipality should have properly identified the dangers of the feature and provided more pronounced warnings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions