“…I got my gear in my pack. I got my pack on my back. Today’s the day I’m going camping. Just got the go ahead sign .The weather’s gonna be fine. Today’s the day I’m going camping…” Denver, J. (1982) “Going Camping” on Rocky Mountain Holiday [Record], Los Angeles, CA: RCA.
Summer and camping go together like peanut butter and jelly. Ontario has over 8.2 million hectares of provincial parks, spread across 334 unique parks and has over 19,000 developed public campsites. In 2013, the Ministry of Natural Resources and Forestry calculated that those parks attracted 1.5 million campers, for a total of 9 million visits. Like recreational boating, camping is quite the cash cow for Ontario. In 2013, camping activities brought in $69 million in revenue to the province’s coffers.
Needless to say, a significant percentage of Ontarians are great nature lovers and every summer countless families pack it up and head to the lake for some good, clean outdoor fun. With thousands of public campsites dotting the landscape from Deep River to French River there’s no shortage of vacation possibilities. Camping is a multi-faceted activity and there are many different kinds. This discussion will focus on public camping as opposed to the commercial camping that takes place on privately owned campsites. Out of those 334 provincial parks, 21 cover 6,500 backcountry campsites only accessible by canoe or foot. There are also 18,500 public campsites that provide amenities like electrical hook-ups for cars or RVs [Recreational Vehicles], toilets and showers. Finally, the province also accommodates camping with “roofed accommodations” such as rustic cabins, yurts and lodges.
As previously explained in our review on social host’s liability [see “The Great Canadian Summer: Duty of Care and Occupier’s Liability in Ontario”, July 7, 2014], tort law identifies four types of visitors: trespassers, licensees, invitees and contractual entrants. The common law establishes separate levels of proof for different classes of entrants. Ontario’s Occupier’s Liability Act, 1990 establishes a general duty of care which occupiers must meet for entrants on their property. As per the Act, a person injured while on the property of another maybe able to sue the occupier of that property for damages. Liability is established by proving there’s been a breach in the duty of care set out in the statute. Basically, a personal injury lawyer can file a claim on behalf of the injured party by arguing on the basis of the ‘objective test of reasonableness’ initiated by the Supreme Court of Canada in Waldick v. Malcom (1991), 83 D.L.R. (4th) 114 (S.C.C.). If counsel can show that the injury sustained was caused by the failure of the occupier to take ‘reasonable care’ to ensure that the victim was reasonably safe while on the property, including the personal property they brought, then [depending on the nature and gravity of the injury], the occupier may be liable for general or special damages.
Within the context of this discussion the “occupier” is the Government of Ontario and the “entrants” are the million or so campers that use its provincial parks for camping each year, specifically those who use provincially owned campsites. By definition, this makes campers both “contractual entrants” and “invitees”, since not all public campsites are fee-based. Of course, any activity taking place in the wilderness involves a certain level of risk, but when it comes to the injuring of campers engaging recreationally on provincially-owned land: who is liable for their safety? In Ontario, the Provincial Parks and Conservation Reserves Act, 2006 governs the development, operation and management of provincially-owned campsites. The purpose of the legislation is to protect the system of provincial parks and conservation reserves that contain significant elements of Ontario’s natural and cultural heritage and provide opportunities for ecologically sustainable recreation to Ontarians. The Ministry of Natural Resources and Forestry is responsible for establishing, operating and managing provincial parks and their campsites in accordance with the Act.
Under the Act, the Ministry must observe minimum operating standards which cover [among other things], security and enforcement, waste management, sanitation and the cleaning and maintenance of buildings, facilities and grounds. To prove the province/occupier was negligent in one of these areas, the plaintiff/camper must demonstrate four things: prima facie duty of care, that the applicable standard of care that is to be observed by the Ministry of Natural Resources and Forestry was breached, the damage resulting from the breach and if the damage or loss incurred was foreseeable as per the test set out in Waldick and Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.).
Although, the Government of Ontario is responsible for the operation of its own public parks and campsites, there are special rules governing the tort liability of public authorities. A negligence claim can fail if the public authority in question meets some type of criteria with respect to legislative and judicial function, crown immunity and limitation periods surrounding the tort action. Conversely, a injured camper aggrieved by the act or omission of a public authority like the Ministry of Natural Resources and Forestry, may file a negligence suit and claim damages for the ‘foreseeable harm’ that has befallen them. In Finigan v. Calgary (1967), 65 D.L.R (2d) 626 (Alta. C.A.), the Alberta Court of Appeal looked at whether public authorities owe a duty of care to contractual entrants. At the time, the province of Alberta had yet to enact the current statute governing occupier’s liability. Basing its ruling on the existing common law, the Court found in favour of Mrs. Finigan and ruled the City of Calgary liable for the injuries she sustained as a result of a trip and fall caused by an exposed root on the path of a city park she was visiting. In their judgement, the Court found that when Mrs. Finigan paid her entrance fee to the park, she entered into a contract with the municipality that allows her to enjoy everything the park has to offer, thereby enjoining the public authority in question to maintain a reasonable ‘standard of care’ that would enable her to do so safely, including clearing away debris like exposed roots.
Although, the park was not a campsite and Mrs. Finigan was not using it for camping purposes, there’s a parallel to be made. Municipal governments are largely the creatures of their home provinces, but more importantly the relationship or duty of care they owe to the members of their constituencies mimics the one between provinces and their residents. In Finigan, the Alberta Court of Appeal focused on the duty of care owed by the municipality to its community, but did not explore what that means for other classes of public authority, like say a provincial occupant. In 1989, the Supreme Court of Canada put the liability of provinces to the test in Just v. British Columbia (1989), 64 D.L.R (4th) 689 (S.C.C.) . In Just, the appellant John Just sued the Government of British Columbia for negligence following a fatal accident in 1982 that caused the death of his daughter and left him seriously injured. To be brief, Mr. Just lost his daughter when a boulder that worked its way loose from the wooded slopes above Highway 99 came crashing down on his car. Mr. Just sued the Ministry of Transportation and Highways for negligently failing to maintain the highway properly and took the case all the way to the Supreme Court of Canada when they denied it. Please note that British Columbia had not yet enacted its own occupier’s liability legislation, so that particular statute was not a factor at trial. In 1989, the Court heard the case and found the province of British Columbia guilty and liable both under statute and at common law. It determined that the Ministry of Transportation and Highways was in dereliction of its statutory duty to the tax-paying invitees using its highways who pay for their construction and maintenance.
In terms of defense, the doctrine of volenti would seem a good choice within the camping context. At its 2007 summit, the Ontario Trails Council looked at a number of policy recommendations regarding risk management of trails and provincial parks, including one which would codify the personal responsibility and safety of trail users and campers dealing with dangers inherent in nature. Under volenti, the Ministry of Natural Resources and Forestry would be absolved of liability if the loss suffered by these invitees or contractual entrants came as a result of “risks willingly assumed” by them in these natural environments.
To date, there is no such legislation in Ontario rendering provincial authorities fully immune from tort liability when it comes to the health and safety of campers using provincially developed and managed campsites. As such, public authorities like the Ministry of Natural Resources and Forestry can be held responsible when campers suffer grievous or fatal injury.
Camping trips can be great adventures, but not all adventures end well. Undoubtedly, it can be quite trying for injured laymen to work their way through many rules and statutes surrounding the rights and responsibilities of public authorities. The best way to ensure that nothing gets lost in translation is to entrust your claim to a qualified personal injury lawyer familiar with the statutory duties of provincial governments and the complexity of crown liability who can get you the compensation you or your loved ones are rightfully entitled to.