Sport and recreational activities provide innumerable health and social benefits to their participants and spectators. However, these benefits come with elevated risks of personal injuries. Owners and operators of sport and recreational facilities may be liable, in both negligence and under occupiers liability, for injuries that arise from the design of their premises. Although findings of negligent design of recreational facilities are relatively rare in Canadian case law, it is an area of potential liability that owners, designers, operators, and their insurers need to understand.

The standard of care applicable to the design of recreational facilities is one of “reasonableness.” To avoid liability, an owner or operator must take reasonable steps to ensure that a person, taking reasonable care for themselves, will be reasonably safe in the facility in question.

In assessing the standard of care of recreational facility design, courts typically employ two analytical approaches:

1. A detailed analysis of the facility in question and the design elements that gave rise to the injury.
2. A comparison between the design of the facility and industry standards or designs of comparable facilities.

Courts often use both approaches to some extent, though some cases heavily rely on one over another.

Detailed analysis of the facility can reveal the likelihood of the plaintiff’s injury occurring. While most jurisprudence undertakes some fundamental analysis of the facility in question, some decisions have placed greater emphasis on in-depth analysis than others. Courts may evaluate factors such as:

• design specifications of the facility;
• mechanics and probability of injury occurring;
• previous occurrence of similar injuries; and
• signage or other instruction that warns of risks.

Courts have also reached common sense conclusions from these findings. Protection need only be reasonable, not exhaustive.

Scenarios that have led courts to ascribe liability include:

• An occupier’s pre-existing knowledge of a hazard posed by the absence of a sun screen for a baseball field.
• Safety measures that lull spectators into a false sense of security, but provide inadequate protection for the purported purpose.
• An occupier’s failure to mitigate a reasonably foreseeable hazard arising from a facility’s design.

There are two primary comparative methods that courts employ:

1. Comparing the facility to industry standards, such as official design standards or building codes.
2. Comparing the facility to other facilities of a similar kind. For some amateur facilities, this may be limited to local or regional facilities. For others, professional facilities, national, or international analogues may be examined.

Courts rarely impose liability on occupiers whose facilities meet or exceed customary standards, though this is not guaranteed. In University of Regina v Biletski, 2019 SKCA 44 (“Biletski”), the defendant’s pool owner’s liability for the plaintiff’s diving injury was affirmed, despite the pool having met the standard of design at the time of construction and its design and usage practices aligning with 90% of comparable pools.

Experts can be extremely helpful in both advancing and defending against facility design negligence claims by explaining complex design concepts, identifying industry standards, and attesting to the adequacy of a facility’s safety features.

Biletski and Rivers v North Vancouver (District), 2020 BCSC 1050 are recent cases in which courts blended the above approaches: combining detailed facility analysis, comparison with industry standards and local facilities, and reliance on expert evidence. These cases demonstrate a modern judicial preference for holistic analysis, while also emphasizing the extent to which negligence claims of this kind are fact-driven. Recognizing the factors that influence the assessment of the standard of design of recreational facilities can help facility owners and occupiers to identify risks, support users, and mitigate potential liability.