Rough Terrain: Liability Issues for Snowmobilers in Saskatchewan
This appears with the kind permission of the Saskatchewan Trial Lawyers Association
Snowmobiling is enormously popular in Saskatchewan, where snow and wide open spaces abound. According to Tourism Saskatchewan, our province boasts 10,000 kilometers of groomed trails. But many snowmobilers aren’t content to play ‘follow the leader’ on a groomed tail. No doubt the chills and spills to be had off trail are a powerful lure for trailblazers and adventure seekers alike and today’s sleds are a lot faster than the old Bombardier Ski-Doo’s the writer grew up with. Today’s machines feature more than 100 horsepower and 100 miles-per-hour performance.
Unsurprisingly, accidents are not uncommon and given the bone-shattering speeds these machines are capable of, the results can be catastrophic. Saskatchewan Government Insurance reports that in the five-year period between 2002 and 2006, there were 326 snowmobile collisions in Saskatchewan that resulted in 231 injuries and 21 deaths.
What happens in terms of liability and recovery for injured snowmobilers? It seems that the legal landscape in Saskatchewan is rough terrain.
An injured snowmobiler might sue in negligence against a landowner of the property where the accident occurred. Less immediately obvious is the possibility of a claim against a third party, non-owning, but with rights to the land, such as utility or construction companies, which have made changes to the land or have erected structures upon it. Presumably an owner or a third party could be an occupier in this context.
In Saskatchewan, hunters on private unposted land are trespassers, and landowners owe them no legal duty except to not set traps for them or create hidden dangers: R. v. Desjarlais,  3 C.N.L.R 89 (Sask. Prov. Ct.); reversed on other grounds  3 C.N.L.R. 105 (Sask. C.A.). Snowmobilers who disregard no trespassing signs, or fail to gain permission to enter private land not specifically posted, may find themselves in a similar situation.
Furthermore, the law in Saskatchewan states that “…as a general rule a person is not bound to anticipate the presence of intruders on private property or to guard them from injury…” see Parision v. Canadian Pacific Ltd.  25 C.C.L.T. 105. Presumably this would apply to snowmobilers as well.
However, occupiers are required to exercise “common humanity” toward incomers, a duty which may arise where an occupier either knows of or forces the presence of a trespasser. The “common humanity” doctrine is discussed in Veinot v. Kerr-Addison Mines Ltd.  S.C.R. 311, 51 D.L.R. (3rd) 533, a decision of our Supreme Court which has had less than enthusiastic acceptance in Saskatchewan. See Ewen v. Archerwill (Village), (1988) 68 Sask. R. 224, where Noble J. observes Saskatchewan Courts’ preference for “the old principles” in determining snowmobilers of the presence of especially dangerous and/or difficult to detect obstacles – a dugout, for example.
The Snowmobile Act
The legal principles governing a negligence claim are not discussed in detail here. Suffice it to say that the plaintiff must marshal evidence and arguments to meet each of the requisite tests, no small feat in the typical negligence action. But by far the most serious obstacle to (legal) recovery for the snowmobiling plaintiff is none other than The Snowmobile Act for Saskatchewan. Section 32(1) of The Snowmobile Act provides:
Limitation of Liability
34(1) Subject to subsection (2), no action or proceeding lies or shall be commenced against an owner or occupier of land, the Crown in right of Saskatchewan, any minister of the Crown in right of Saskatchewan or any employee, officer or agent of any of them for any injury, loss or damage suffered as a result of, arising out of or stemming from any person using, driving, riding on or being towed by a snowmobile except against an owner or occupier of land, the Crown in right of Saskatchewan, a minister of the Crown in right of Saskatchewan or an employee, officer or agent of any of them in circumstances where that owner or that occupier, the Crown in right of Saskatchewan, the minister of the Crown in right of Saskatchewan or that employee, officer or agent, as the case may be:
(a) creates or has created a danger with the deliberate intent of doing harm or damage to the person or person’s property;
(b) does or has done a wilful act with reckless disregard of the presence of the person or person’s property; or
(c) is negligent while using, driving, riding on or being towed by a snowmobile or in failing to properly oversee an employee, officer or agent who is using, driving, riding on or being towed by a snowmobile.
34(2) With respect to an area of land that is not designated as a designated trail, where a person uses, drives, rides on or is towed by a snowmobile on the land of another person with the express or implied permission of the occupier of the land for a purpose in which the person and the occupier have a common material or business interest, the occupier of the land owes a duty to use reasonable care to prevent harm or damage from unusual danger that the occupier knows or ought to know exists on land.
The policy behind the legislature’s restrictive approach to duties of care owed to snowmobilers in Saskatchewan arises in part because snowmobiling is known to be an inherently dangerous activity, and accidents and injury are common to the sport. The legislature’s implicit message to snowmobilers in Saskatchewan is that they must take care while enjoying their sport because legal recourse is limited in the event of injury. The effect of the legislation is added legal protection for landowners (and occupiers) who are sued by snowmobilers.
In addition, Section 32(1) of The Snowmobile Act places the onus of proof on the Plaintiff to show that the accident was not caused by her negligence:
Where loss, damage or injury is sustained by a person by reason of a snowmobile, the onus of proof that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or operator of the snowmobile is on the owner or operator.
Thus the default position is that Saskatchewan snowmobilers are legally responsible for their own injuries unless they can prove otherwise. The snowmobiling plaintiff may also face an uphill battle where his own conduct allows the defendant to argue for apportionment or reduction of damages based on contributory negligence pursuant to The Contributory Negligence Act for Saskatchewan:
Apportionment of damage of loss
2(1) Whereby the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
Degree of fault
3(1) Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each person is at fault.
(2) Subject to section 3.1, if two or more persons are found at fault, they shall be jointly and severally liable to the person suffering damage or loss, but as between themselves, in the absence of a contract express or implied, they are liable to make contributions to and indemnify each other in the degree in which they are respectively found to have been at fault.
A recent Saskatchewan decision which denied liability to a snowmobiler can be found in Park v. Zealandia B.P.O. Elks Inc., 2001 SKQB 299 (upheld on appeal), where Baynton, J. observed:
 But off-highway rural terrain in Saskatchewan is underdeveloped and much of it is a virtual minefield for fast moving vehicles. A cursory observation of even the terrain lying along major highways demonstrates that this is so. Anyone operating a snowmobile in the fields or ditches along such roadways must use extreme care to avoid accident and injury. The risks in remote rural areas are even greater.
The Snowmobile Act and the jurisprudence around it create significant obstacles for injured plaintiffs seeking to recover personal injury damages. The message is clear for Saskatchewan snowmobilers – ride at your own risk. I wonder if they put that in the glossy sales pamphlets down at the local dealership.