Recreational Risks and Legal Boundaries: The Scope of Occupiers’ Liability
In Hudson v. Drain, 2025 ONSC 5396, the Ontario Superior Court of Justice addressed the complex interplay between common law negligence and the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“the Act”), in the context of a recreational injury on rural property.
This case arose from a serious fall suffered by the plaintiff, John Hudson, while hunting on a property owned by the defendants, Wayne and Heather Drain. The plaintiff had been invited by his son-in-law, Todd Drain, to hunt on the property, and fell from a deer blind located in a spruce tree on the Drains’ farm. The central legal issue became whether Todd, who neither owned the property nor constructed the deer blind, owed a duty of care to the plaintiff under the common law principles, or whether the statutory framework of the Act precluded such a claim.
This decision was not a final judgment on the entire case. It specifically addressed the legal framework for the jury questions, particularly whether Todd owed a duty of care and what standard applied to Wayne and Heather Drain under the Act.
Background
On November 4, 2016, Mr. Hudson, an experienced hunter, accepted an invitation from his son-in-law Todd to hunt on the property of Todd’s parents, Wayne and Heather Drain. The deer blind in question was a wooden structure affixed to a tree in a woodlot on the Drains’ 100-acre farm. While alone in the blind, Mr. Hudson stood up to stretch his legs and fell approximately 15 feet to the ground, sustaining serious injuries. The plaintiff alleged that the floor of the blind was wet and slippery, contributing to his fall.
The plaintiff initially pleaded that Wayne and Heather Drain were liable under the Act as occupiers, and that Todd was negligent in directing him to the deer blind and in failing to warn of its slippery condition. Later, the plaintiff amended his claim to allege that Todd was also an “occupier” under section 1(b) of the Act, based on his control over the hunting activity and the deer blind. However, on the eve of trial, the plaintiff withdrew this amendment, choosing instead to proceed solely on a theory of common law negligence against Todd.
Analysis
Section 1 of the Act establishes the term occupier, in order to determine who owes a duty of care under the Act.
1(a): A person in physical possession of the premises.
1(b): A person who has responsibility for and control over the condition of the premises, the activities carried on there, or the persons allowed to enter.
Section 2 of the Act states that the Act replaces the common law rules for determining the duty of care owed by occupiers.
Section 3 of the Act governs the general duty of care that is owed:
3(1): Occupiers must take reasonable care in all the circumstances to ensure that persons entering the premises are reasonably safe.
3(2): This duty applies whether the danger arises from the condition of the premises or activities carried on there.
3(3): The duty can be modified or excluded in certain circumstances.
Section 4 of the Act discusses the reduced duty of care for Recreational use of Rural Premises:
4(1): Where a person is deemed to have willingly assumed all risks, the occupier’s duty is limited to avoiding deliberate harm or reckless disregard.
4(3) & 4(4): This reduced duty applies when:
- The premises are rural, forested, or used for agriculture (e.g., woodlots).
- The entry is for recreational purposes (e.g., hunting).
- No fee is paid for entry or activity.
Justice Charney’s reasons for decision focused on whether Todd owed a duty of care to the plaintiff in the absence of occupier status under the Act. The plaintiff advanced two arguments: First, that Todd, as the “organizer” of the hunt, exercised sufficient control over the activity to give rise to a duty of care; and second, that Todd had created a hazard by removing a carpet from the deer blind weeks earlier, which allegedly rendered the floor slippery and unsafe.
The plaintiff relied on the Supreme Court’s decision in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, where a ski resort was found liable for failing to prevent an intoxicated participant from engaging in a dangerous tubing competition. The plaintiff argued that, like the ski resort in Crocker, Todd had organized a hazardous recreational activity and should be held liable for failing to ensure the plaintiff’s safety.
Justice Charney rejected this analogy. He emphasized that the Act provides a comprehensive and exclusive statutory framework governing the liability of occupiers, displacing the common law in this area. Section 2 of the Act explicitly states that it applies “in place of the rules of the common law” for determining the duty of care owed by occupiers. The Court of Appeal in Schnarr v. Blue Mountain Resorts Ltd., 2018 ONCA 313, confirmed that the Act is intended to be exhaustive in relation to occupiers’ liability.
The plaintiff’s attempt to withdraw the allegation that Todd was an occupier, while still asserting that Todd owed a duty of care based on his control over the premises and the activity, was found to be internally inconsistent. Justice Charney held that the very facts the plaintiff relied upon to establish a common law duty of care were the same facts that would, if accepted, render Todd an occupier under section 1(b) of the Act. As such, the plaintiff could not circumvent the statutory regime by recharacterizing the claim as one in negligence.
Further, the Court found that the property was qualified as a rural premises used for recreational purposes under section 4 of the Act. As no fee was paid for entry, the plaintiff was deemed to have willingly assumed all risks, and the defendants’ duty was limited to refraining from creating danger with deliberate intent or acting with reckless disregard. There was no evidence that Wayne and Heather Drain even knew of the deer blind’s existence, let alone acted recklessly. As for Todd, the Court concluded that he could not be held liable under common law principles once the statutory framework was engaged, and the plaintiff had disclaimed Todd’s status as an occupier.
Conclusion
Justice Charney ruled that Todd Drain owed no duty of care to the plaintiff under common law, given the comprehensive scope of the Occupiers’ Liability Act and the plaintiff’s withdrawal of any claim under the Act. The Court found that the statutory scheme precluded the plaintiff from asserting a parallel common law duty based on the same factual foundation.
Take Away
This case underscores the exclusivity of the Act in defining the scope of liability for those with control over premises or activities conducted thereon. Plaintiffs cannot evade the Act’s limitations such as the reduced duty of care for rural recreational properties by reframing their claims in common law terms.
The decision also highlights the strategic risks of making amendments in the pleadings, where the plaintiff withdrew an allegation of occupier status, which may prevent the very duty of care a plaintiff seeks to establish. For property owners and those facilitating recreational activities, this case affirms the protective scope of section 4 of the Act, while reinforcing the importance of clarity in pleadings and the limits of common law negligence in occupier contexts.