Taking A Dip Into Public Pool Liability: Municipal and Resort Related Liability

This article is our latest update in our swimming pool liability series, following our 2013 paper entitled, Caution! This pool is unsupervised! Resort liability of unsupervised facilities,¹ and our 2017 paper Swimming in Liability: Hotel and Resort Sports Related Liability.²

This year's approach will focus on public pools encompassing not only municipally funded facilities, but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act,³ we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act ("HPPA"),⁴ then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.

II. The Duty of Care

The Occupiers Liability Act

The Occupiers' Liability Act ("OLA") establishes the standard of care applicable to occupiers in section 3(1) and (2) of the OLA:

Occupiers' Duty

3. (1) An occupier of premises owes a duty of care to take such care as in all circumstances of the case is reasonable to see that persons entering the premises, and the property brought on the premises by those persons are reasonably safe while on the premises [emphasis added].

3. (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on while on the premises.⁵

The Supreme Court of Canada (the "SCC") in Waldick v. Malcolm clarified that the OLA is to "promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe".⁶ Furthermore, the SCC stated that the OLA is framed broadly as the determination of liability is dependent on the facts of each case.⁷

Occupiers must take reasonable care in all circumstances to ensure that visitors are reasonably safe while on their property.⁸This duty extends not only to the condition of the premises but also to activities that guests will participate in while on the premises.⁹ The standard of care required is one of reasonableness – that is, an occupier is not required to ensure that the premises are perfectly safe but simply reasonably safe given all of the circumstances. So, what is reasonable for individual landowners may not be reasonable for the occupiers of recreational facilities. The organizations overseeing public beaches, public pools, community centres, and municipalities have more resources than private landowners and thus may be held to a higher standard.

III. HPPA Pool Regulations¹⁰

As per the HPPA, public pools fall under three classes...

Understanding how a swimming pool is classified under the HPPA is necessary to ensure that the safety precautions in place meet the legislative requirements so that an occupier can protect itself against a negligence claim if an injury or death occurs on its premises. As per the HPPA, public pools fall under three classes, two of which will be discussed here.¹¹ Class ‘A' pools are "public pool[s] to which the general public is admitted" or that is part of a program "supported in whole or in part by public funds or public subscription".¹² Pools on the premises of recreational camps are also included in Class ‘A'.¹³

Class ‘B' pools include public pools that are:¹⁴

operated on the premises of an apartment building that contains six or more dwelling units or suites or a mobile home park, for the use of the occupants and their visitors,
operated as a facility to serve a community of six or more single-family private residences, for the use of residents and their visitors,
operated on the premises of a hotel for the use of its guests and their visitors,
operated on the premises of a campground for the use of its tenants and their visitors,
operated in conjunction with,
1. a club for the use of its members and their visitors, or
2. a condominium, co-operative or community property that contains six or more dwelling units or suites for the use of the owners or members and their visitors,
operated in conjunction with a child care centre, a day camp or an establishment or facility for the care or treatment of persons who have special needs, for the use of those persons and their visitors, or
neither a Class 'A' pool nor exempt from the provisions of the HPPA.

Public pools under Class ‘A' of the HPPA are required to be monitored by lifeguards. These pools are required to have varying numbers of lifeguards depending on the number of bathers on the deck and pool.¹⁵Furthermore, there are requirements for the competency of each lifeguard, including that he or she be a minimum of 16-years of age and "be the holder of a current lifeguard certificate".¹⁶

Class ‘B' pools are also are subject to the same requirements, but with some exemptions.¹⁷ The HPPA permits public pools under Class ‘B' to forgo the use of lifeguards when they meet the following requirements: the water surface does not exceed ninety-three square meters (or approximately eleven square feet), or where the water surface exceeds ninety-three square meters, but the number of bathers is limited to 10 people or less. However, occupiers of these pools must display a sign cautioning guests that the pool is unsupervised. All signs must be at least twenty-five millimetres high and include the following:

C A U T I O N

THIS POOL IS UNSUPERVISED. BATHERS UNDER TWELVE YEARS OF AGE ARE NOT ALLOWED WITHIN THE POOL ENCLOSURE UNLESS ACCOMPANIED BY A PARENT OR HIS OR HER AGENT WHO IS NOT LESS THAN SIXTEEN YEARS OF AGE.¹⁸

If the pool exceeds ninety-three square meters, but the pool is restricted to 10 bathers or less at a time, the following sentence must be added to the sign in addition to the above:

THE TOTAL NUMBER OF BATHERS ON THE DECK AND IN THE POOL SHALL NOT EXCEED TEN.¹⁹

IV. Unsupervised Pools Versus Supervised Pools

The potential of a pool-related lawsuit is exponentially increased when a pool is unsupervised: according to the Life Saving Society, pool related deaths account for 8% of all drowning deaths in Canada, but where a lifeguard was on duty that number drops to approximately 1%.²⁰In 2017, there were 283 unintentional water fatalities in Canada.²¹ The major risk factors contributing to drowning incidents are:

the inability to swim (40%),
swimming alone (29%),
the consumption of alcohol (34%), and
a heart disease/heart attack (20%).²²

In 2018, a 24-year-old mother and her 5-year-old daughter drowned while swimming in an unsupervised swimming pool at a resort.²³ This tragedy underscores how dangerous unsupervised swimming pools can be for bathers.

However, even where a pool is supervised, an occupier may still be found responsible if adequate resources were not provided to the lifeguard. The HPPA sets out regulations that occupiers must adhere to, such as:

what life-saving equipment must be available,
the filtration and clarity of the water, and
the minimum number of lifeguards and assistant lifeguards required to be on duty.²⁴

The HPPA also sets out strict guidelines for the number and type of human personnel required.²⁵

In the rare case that an injury or death does occur while under the supervision of a lifeguard, the occupier will be held liable if it did not ensure that the lifeguards were properly trained and adequately deployed as per the HPPA. Although a breach of these requirements does not automatically result in a finding that the occupier is liable, the plaintiff will presumably have an easier time proving its case.

There is no expectation on a lifeguard to constantly observe every single individual in a swimming pool.

Those supervising the swimmers, whether it be a lifeguard or a teacher supervising students, can also be held liable. In Crupi v. Royal Ottawa Hospital, the court sets out the duty of care required of lifeguards, which is the duty to be "...vigilant, attentive and alert at all times in the performance of their duties".²⁶ This is a less onerous duty of care than that imposed upon a teacher supervising his or her pupils at a public pool. Unlike lifeguards who are responsible for general supervision only, teachers are expected to directly supervise the children while in the water.²⁷ A recent high-profile case, in which a teacher who failed to adequately supervise students on a school trip ended in the drowning death of a 15-year-old boy, resulted in the teacher being charged with criminal negligence.²⁸There is no expectation on a lifeguard to constantly observe every single individual in a swimming pool. In Crupi v. Royal Ottawa Hospital, the court found that where a lifeguard has taken all reasonable steps to identify distress before an injury or death occurs, then said lifeguard will not be found liable. A lifeguard is not "expected to see every incident".²⁹However, where lifeguards are found liable, the finding of liability may, in turn, lead to an occupier being found liable for not ensuring that the lifeguards it hired were competent and properly trained.

V. Risk Management Strategies

It is clear that the operators of public pools are exposed to a multitude of liability risks. These risks can extend to various areas of law and present complications not easily foreseen. For example, in Blue Mountain Resorts Limited v. Ontario, after a drowning death occurred on the premises of a resort, the occupier found itself embroiled in a labour law dispute over which legislative bodies had jurisdiction when a drowning death occurs.³⁰ Protracted and unexpected litigation obviously can create both a financial and time-consuming strain on organizations.

Unfortunately, unlike many sports and recreational activities, the nature of public swimming pools does not usually make the use of waivers feasible. However, there are many strategies available to operators that can minimize liability risks, which are discussed below.

Lifeguards - When it comes to lifeguards, occupiers of pools should ensure they employ, at minimum, the required number of lifeguards mandated by the HPPA, and that the lifeguards hired are certified as properly trained. Furthermore, it is imperative that lifeguards are not distracted from their jobs. A recent tragedy in Quebec occurred at a municipally owned community centre when a 14-year-old student drowned in the presence of a lifeguard. It is believed the student drowned because the lifeguard was distracted when the lifeguard had to take over teaching the class. This situation occurred because the school sent a substitute teacher who did not have the requisite training to lead the swimming lessons.³¹ The family of the drowning victim subsequently announced their intention to sue both the school board and the city for negligence.³² This tragedy reinforces the importance of ensuring that lifeguards are not only present but that they are also alert and not distracted.
Signage or Pictograms - Notices are also required at all public pools to inform bathers that glass containers are not allowed near the pool, the maximum amount of bathers permitted at a time, and the location of a telephone for emergency use.³³ Occupiers of public pools would also be wise to consider the use of additional signs, beyond those mandated by the HPPA that may provide additional protection from a liability standpoint. Signs should provide the depth of water and instruct swimmers that there is ‘No Diving' permitted. Language barriers should also be considered. Signs employing pictograms along with words will be of value to swimmers who are unable to read signs in English.

...slip and fall accidents around the pool can also result in injury.

Slip & Falls - To minimize the risk of slip and fall accidents around the pool, staff should be instructed and trained to clean up spills and ensure that equipment around the pool is stored properly. Pool owners can also consider using cleaning products to add a non-slip barrier, as well as placing non-slip mats in areas that are high risk.
Demarcation - Finally, the colour of the pool edge should be different than the rest of the surrounding floor so that those in attendance at the pool can see where the pool edge begins.

VI. Conclusion

Operators of public swimming pools should be aware of swimming pool legislation, such as the HPPA and, more generally, the application of the OLA to swimming pools. It is important to keep abreast of changes in the legislation.

Owners of public pools would also be wise to implement risk management solutions that go above and beyond those mandated by the HPPA. Measures such as ensuring that lifeguards are trained and alert, using extra signage around the pool with pictograms, and taking precautions to prevent slip and fall accidents all go a long way in preventing a loss.

In order to assist their insureds, insurers should also take note of these mitigation strategies and be aware of the latest regulatory changes, developments, and trends in recent case law. By implementing these strategies, it is much more likely that there will be beneficial results for both insureds and insurers.

James Tomlinson et al, "Caution! This pool is unsupervised! Resort liability of unsupervised facilities" (McCague Borlack, 2013).
Emily Kostandoff and James Tomlinson, "Swimming in Liability: Hotel and Sports Related Liability" (McCague Borlack, 2017.
Occupiers' Liability Act, RSO 1990, c. O.2 [OLA].
RRO 1990, Reg 565 Public Pools [HPPA].
OLA, supra note 3 at ss 3(1), (2).
[1991] 2 SCR 456 at para 477.
Ibid, at 472.
OLA, supra note 3 at s3.
GHL Fridman, The Law of Torts in Canada (Thomson Reuters Canada Limited, 2010).
As per HPPA, supra note 4, s. 4.1(1), the following public pools are exempt from Regulation 565: 1) Pools used by the occupants and their visitors of an apartment building, condominium or co-operative or commune property with fewer than six dwelling units or suites; 2) Pools used by members of a community of less than six single-family private residences; and, 3) Pools operated on the premises of a hotel that has fewer than six units or suites for the use of its guests, if the following notice is displayed in a conspicuous place within the pool enclosure printed in letters at least 25 millimetres high with a minimum five millimetre stroke: CAUTION SWIM AT YOUR OWN RISK THIS POOL IS NOT SUBJECT TO THE REQUIREMENTS OF ONTARIO REGULATION 565 (PUBLIC POOLS).
Class ‘C' facilities include: public wading pools, public spray pads or public splash pads, and a water slide receiving basin that serves solely as a receiving basin for persons at the bottom of a water slide.
HPPA, supra note 4, s.2.1.
Ibid, s.2.1.
Ibid, s.2.2.
Ibid, s.17(2).
Ibid, s.17(6).
It should be noted that where the pool is located in a child care centre or a day camp, these exemptions do not apply.
HPPA, supra note 4 at 19(a).
Ibid, at 19(b).
"Canadian Drowning Report 2018 Edition", Drowning Prevention Research Centre Canada at 6.
Ibid, at 2.
Ibid, at 10.
Nick Westoll and Kamil Karamal, "Mother and daughter dead after being found in Blue Mountains resort pool", Global News (26 June 2018).
HPPA, supra note 4, s.20, s.7, and s.17.
Section 17 of the HPPA sets out two charts indicating the number of lifeguards and assistant lifeguards required to be present. These numbers are based on the size of the pool and the number of bathers.
1988] O.J. No. 2858, at para 46 ["Crupi"].
Moddejonge v. Huron County Board of Education [1972] 2 O.R. 437 (Ont. H.C.).
Claire Floody and May Warren, "Teacher charged with criminal negligence causing death a year after drowning of student in Algonquin Park" The Star (26 June 2018).
Crupi, supra note 26 at para 47.
2013 ONCA 75.
Sidhartha Banerjee, "Quebec teen drowned during school swim and nobody noticed for 38 minutes" Global News (27 Nov 2018).
Kamila Hinkson, "Family of Montreal teen who drowned during swim class to sue city, school board" CBC News (28 Nov 2018).
HPPA, supra note 4, s.19.1.