SUPREME COURT OF NOVA SCOTIA
Citation: Crook v. LaFarge Canada Inc., 2009 NSSC 357
Date: 20091110 Docket: Hfx. No. 249935
Registry: Halifax
Between:
Matthew Crook
Plaintiff
-and-
LaFarge Canada Inc.
Defendant
-and-
Darrell Jollimore and Adam Turner
Third Parties
LIBRARY HEADING
Judge: The Honourable Justice Robert W. Wright
Heard: November 5, 2009 in Chambers at Halifax, Nova Scotia
Oral
Decision: November 10, 2009
Written
Decision: November 30, 2009
Subject: Civil Procedure Rule 13.04 - summary judgment motion by defendant on the evidence - occupiers’ liability.
Summary: LaFarge was the owner and occupier of a large rural property upon which it once operated an asphalt plant. In 1995 the plant was decommissioned and all structures and improvements removed, leaving the property unused.
In 2003, LaFarge gave permission to two individuals to use the property for a motocross bike track in exchange for their agreement to keep the property garbage free. These two persons then built a makeshift motocross track using piles of building materials left behind by LaFarge which, by word of mouth, soon came to be used by various members of the public without anyone’s permission.
In April of 2004, the plaintiff, while visiting the property for the first time, borrowed a motocross bike from another rider and without permission, drove it onto the track. He fell on the second jump thereby sustaining serious personal injuries. He then sued LaFarge under the Occupiers’ Liability Act. In his discovery examination, the plaintiff admitted, inter alia, that the sole cause of his fall was his accelerating too fast going over the jump and that all decisions surrounding the use and operation of the bike were his responsibility.
Issues:
(1) Has the defendant shown that there is no genuine issue of fact to be determined at trial?
(2) If so, has the plaintiff established, on the facts that are not in dispute, that his claim has a real chance of success or at least partial success?
Held: Although most of the material facts were not in dispute, there was one genuine issue of fact which ought to be determined at trial and that is whether or not the defendant’s lands are “undeveloped rural land” within the meaning of s. 6(1)(b) of the Occupiers’ Liability Act. That finding will determine whether the less onerous duty of care embodied in s.5(1) applies (as a willing assumption of risk situation) instead of the more general duty of care embodied in s.4(1).
Depending on the outcome of that finding, a further triable issue may arise, namely, whether LaFarge was under a duty to deter or discourage persons from incurring the risk of using the track on its property or to otherwise give warning of the danger concerned. The summary judgment motion was therefore dismissed.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THE COVER SHEET.