Not-so-easy riders

The Compass - - Editorial - Russell Wanger­sky Eastern Pas­sages Russell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at russell.wanger­ Twit­ter: @Wanger­sky.

Last week, the Supreme Court of Canada re­fused to hear an ap­peal. That’s noth­ing new — it hap­pens al­most every week.

Peo­ple who don’t like the re­sults in lower courts feel they have to go all the way to the top. Gov­ern­ments, unions and in­surance com­pa­nies — with in­house le­gal teams and plenty of cash — seem to launch ap­peals to the court al­most as a mat­ter of course.

Some­times the court will hear an ap­peal, more of­ten, it won’t.

But the re­sults of this court de­ci­sion might just be com­ing to your town — di­rectly to your town.

More and more, cities and towns are be­ing ex­pected to of­fer ser­vices be­yond sim­ple garbage col­lec­tion, street­lights and snow plow­ing. Res­i­dents want skate parks and ice-skat­ing loops, splash parks and moun­tain bike trails, wood­land hik­ing trails and board­walks.

Mu­nic­i­pal lead­ers, of­ten with fed­eral and pro­vin­cial fund­ing, have rushed to sat­isfy their con­stituents.

But now, an of­fi­cial with the As­so­ci­a­tion of Mu­nic­i­pal­i­ties of On­tario (AMO) is warn­ing that towns and cities might want to pull back from things as sim­ple as al­low­ing to­bog­gan­ing.

“It may be that mu­nic­i­pal gov­ern­ments just don’t do these kinds of ac­tiv­i­ties — they to­tally with­draw from them,” Pat Vanini, the ex­ec­u­tive di­rec­tor of the AMO, told the Cana­dian Press.

The case that’s caus­ing the con­cern is Stephen Camp­bell vs. the Mu­nic­i­pal Cor­po­ra­tion of the County of Bruce.

The case in a nut­shell? Bruce County built a moun­tain bike trail with a tri­als area that was sup­posed to train riders for any ob­sta­cles they might meet on the trail. In 2008, Stephen Camp­bell, a 43-year-old ex­pe­ri­enced moun­tain biker, fell off one of the train­ing ob­sta­cles and was left a quad­ri­plegic. He and his fam­ily sued, and the mu­nic­i­pal­ity was found 100 per cent re­spon­si­ble.

The mu­nic­i­pal­ity had taken steps. As the judge in­di­cated, “The mu­nic­i­pal­ity in­stalled signs that 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 mu­nic­i­pal­ity pro­moted the Park as a fam­ily venue. A pro­mo­tional brochure for the Park con­tained a warn­ing that moun­tain bik­ing can be risky and that vis­i­tors should ride within their own abil­i­ties and at their own risk.”

But that wasn’t enough; while sev­eral things were miss­ing, one of the key is­sues was that the un­su­per­vised park had not been keep­ing track of in­juries on the trail

The orig­i­nal trial judge found that “the mu­nic­i­pal­ity had breached its duty in five 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 Tri­als Area a low-risk train­ing area.”

If the mu­nic­i­pal­ity had been keep­ing track, the judge (and sub­se­quent pro­vin­cial Ap­peal Court judges) main­tained, the mu­nic­i­pal­ity would have been aware of seven other ac­ci­dents in the park, and would have taken pre­ven­ta­tive mea­sures.

What’s it mean for other mu­nic­i­pal­i­ties? Well, in On­tario, if they don’t want to face court judg­ments af­ter in­evitable ac­ci­dents, they are go­ing to have to start keep­ing track of ac­ci­dents and in­ci­dents, even at hith­erto un­su­per­vised sites.

Ei­ther way, it means in­creased costs. For mu­nic­i­pal­i­ties across the coun­try and those in our re­gion? Well, not all pro­vin­cial leg­is­la­tion is the same — but it cer­tainly is a judg­ment that should give those who gov­ern our towns and cities pause.

If you build it, they will come. And likely, even­tu­ally, they will fall down and hurt them­selves. Some­times se­ri­ously.

Then they can le­git­i­mately ask you why you built it that way, and ques­tion whether you’re to blame.

If you build it, they will come. And likely, even­tu­ally, they will fall down and hurt them­selves. Some­times se­ri­ously.

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