Case Summary – Property Was Not Utility Right-of-way Corridor

This post was written by Andrea Girones:

Plaintiff male was seriously injured while tobogganing on reservoir property owned by defendant city. Plaintiff female was former spouse of male and made claim under Family Law Act (Ont.) (“FLA”). Male was injured when toboggan hit edge of snow covered ditch. Parties agreed to arbitrate plaintiffs’ claims. Arbitrator found city fully liable, with no contributory negligence by plaintiffs. Arbitrator found city breached its duty of care under s. 3 of Occupier’s Liability Act (Ont.). Arbitrator awarded damages to male in amount of $482,657 and damages of $100,000 to female for housekeeping and childcare costs and FLA claim. City appealed. Appeal dismissed. In order for someone to voluntarily assume risk, that person must be aware of existence of risk. There was ample evidence that male was not aware of risk he was assuming. Arbitrator correctly found that property was not utility right-of-way or corridor. There was nothing to suggest arbitrator applied wrong test in finding plaintiffs were not contributorily negligent. Arbitrator did not err in awarding FLA damages to female. Evidence established that relationship between plaintiffs deteriorated as result of injuries to male.

Uggenti v. Hamilton (City) (Oct. 7, 2013, Ont. S.C.J., R.A. Lococo J., File No. Hamilton 04-12153) 233 A.C.W.S. (3d) 283.

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