Quote:
Originally Posted by PeterSL
“While it would make sense that a fence could work to prevent liability under s.263, we cannot be certain; it is difficult to say exactly what type of fence ‘would be adequate to prevent persons from falling in by accident’ and ‘adequate to warn them that the opening exists.’
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Based on the issues raised by Dentons Canada LLP, ACA sought a second opinion from McLennan Ross which was received on September 25, 2015. In reviewing case law associated with excavations on land (a subsection of 263) the McLennan Ross opinion notes: “…The Court’s reasoning suggests that the fact of the boys falling in the excavation was in and of itself proof that guarding was in adequate (although the Court says the warning was adequate).” The Court used the same reasoning in a second case referenced by McLennan Ross. In layman’s terms “guarding” has been considered inadequate because someone has fallen in, regardless of what type of guarding has been put in place.
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“Accordingly, from a legal perspective, we do not believe that it is possible to eliminate the risk of criminal charges. Obviously, effective fencing or other steps such as those recommend by the cottage owners associations or followed under the B.C. policy would significantly reduce the practical likelihood of anyone being injured or dying, and may give rise to an argument that the duty to warn and guard never arose in the first place because the opening was not open to the public.
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Mclennan Ross states "The Court’s reasoning suggests that the fact of the boys falling in the excavation was in and of itself proof that guarding was in adequate", that doesn't in any way shape or form imply that all forms of guarding are inadequate as the ACA implies with their "layman's terms". For all we know there might not of been any guard/barrier which of course the above statement would be true. Unfortunately the case details weren't provided though to fully interpret the meaning of that statement.
Imo what is more important then knowing of incidents where the excavation creator was found guilty is knowing if there are incidents where they were found not guilty due to having provided adequate guarding/warning. Imo there must be cases that fall under this category as well and if so this would prove my claim an incident occurring is simply not enough proof of inadequate guarding. It would also give the ACA an idea as to what guarding they may require(if there is a case law that states the same type of guarding was deemed adequate for a excavation it should be satisfactory for an aerator as well).
Similar to my thoughts above Mclennan Ross states "the Court says the warning was adequate". If a person were to just assume an incident happening means you are guilty then there is no way the warning should have been found adequate if it did not convey the danger to the boys clearly enough for them to avoid them. Imo you can't infer one way for guarding and the other way for warning, if an incident is proof of improper guarding it must also be proof of improper warning.
Based on the above it seems there is no case law regarding aerators yet. The ACA will have to make a decision as to what they believe should be adequate warning and guarding and hoping the judge/jury agrees with them if an incident arises. There is no way for the ACA to completely eliminate the risk unless they stop aeration all together(which is all both Dentons Canada LLP and Mclennan Ross were stating).