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Occupiers Liability Act Amended

by Mary MacGregor

written 1998, published in Beef in B.C. October 98

On May 13, 1998, changes to the Occupiers Liability Act came into effect.

In an article published in the November-December 1997 issue of Beef in BC, I wrote about the Occupiers Liability Act. That article discussed the lower duty of care that land owners and occupiers owe to people who willingly accept risks, or to people who are trespassing on land used primarily for agricultural purposes [Occupiers Liability Act section 3(3)].

The normal duty owed to someone entering land, is that the owner or occupier of lands and premises takes reasonable care to ensure that people and their property are reasonably safe in using the land and premises. That duty of care has at least three aspects: it applies in relation to the condition of the premises, activities on the premises, and conduct of third parties on the premises.

The Occupiers Liability Act before it was changed, provided for a lesser duty of care towards people who willingly accepted any risk, or relating to use of land used primarily for agricultural production.

In an attempt to reassure landowners still further, the government has repealed the section which described the reduced duty of care, and has replaced it with the following:

3(3)

Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

create a danger with intent to do harm to the person or damage to the person’s property, or
act with reckless disregard to the safety of the person or the integrity of the person’s property.

(3.1)

A person who is trespassing on premises while committing, or with the intention of committing, a criminal act is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection (3).

(3.2)

A person who enters any of the categories of premises described in subsection (3.3) is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection (3) if:

the person who enters is trespassing, or
the entry is for the purpose of a recreational activity and
1. the occupier receives no payment or other consideration for the entry or activity of the person, other than a payment or other consideration from a government or government agency or a non-profit recreational club or association, and
2. the occupier is not providing the person with living accommodation on those premises.

(3.3)

The categories of premises referred to in subsection (3.2) are as follows:

premises that the occupier uses primarily for agricultural purposes;
rural premises that are:
1. used for forestry or range purposes,
2. vacant or undeveloped premises,
3. forested or wilderness premises, or
4. private roads reasonably marked as private roads;
recreational trails reasonably marked as recreational trails;
utility rights of way and corridors excluding structures located on them.

So What Does That Mean?

Section 3(3)(a) is pretty self-evident. You can’t go out and create a dangerous situation intending that people or their property will be harmed.

Section 3(3)(b) deals with the concept of “reckless disregard”.

In order to be acting with reckless disregard, you must first be aware of the presence of people on your property, or you must be aware that their presence in the future is very probable. As well, you must do something, or fail to do something, that is likely to cause damage or injury, without caring whether that damage or injury results.

As an illustration, let’s suppose that you have a private road, which is marked as such. You know that, despite your “no trespassing signs” people sneak down the road at night from time to time even though they are not supposed to. Then you decide to dig a deep trench across the road and you remove the material from the trench so that the trench is hard to see. You do not lock or block off the roadway nor do you take steps to warn of the danger. If someone then drives into the trench at night, injuring themselves and their vehicle, a judge is likely to think that you acted in “reckless disregard” for the safety of people that you knew might possibly make use of the area.

Categories of Land

The pre-amendment Act did not apply at all to Canada, British Columbia, or a municipality which is the occupier of a public highway, public road, road under the Forest Act, a private road as defined in section 2(1) of the Motor Vehicle Act or an industrial road as defined in the Highway (Industrial) Act.

The reduced duty of care is to exist on specific types of lands, which are listed in section 3(3.3) above. The Act does not include definitions for these categories of land—so how they will be interpreted by judges is unclear at this time. What is clear is that government wishes to broaden the types of land on which there is a reduced duty of care.

Categories of People

The reduced duty of care applies to certain people:

people who willingly assume risks. Normally people who sign waivers or consent and release documents assume the risks inherent in the activities they are undertaking.
people who are trespassing while committing or intending to commit a criminal act
people who are trespassing
people who enter for the purpose of a recreational activity and the landowner or occupier receives no payment or other consideration (value) other than payment or consideration from a government, government agency or non-profit recreational club or association and the occupier does not provide the person with living accommodation on those premises.

Note, however, that you do not have no duty of care. You still have a duty of care, it is just less than the duty of care that you would otherwise have.

And note also that if the person entering your property is paying for the privilege or you are giving them living accommodation, then the higher duty of care applies.

Why Change the Act?

The government wants to improve access to undeveloped private lands throughout BC. Their theory seems to be that the recreating public will have more opportunities to use deeded land for recreational purposes, if landowners are reassured that they have reduced liability for injury or property damage to members of the recreating public.

In discussion when the amendments were introduced, the government said that it wanted to make these changes to assist with development of the Trans Canada Trail, as well as to encourage landowners and occupiers to make more land available for recreation.