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FYI.
Buddy has been seen walking around downtown Toronto, and he's working, so it's not like he was paralyzed or anything from the accident.
 

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Update - from court documents

First, I would like to make my personal legal disclaimer, as the legal vultures are always lurking and more than willing to find weaknesses to attack.

The following is solely my opinion as a citizen of Canada, and my right to have an opinion. I am not a lawyer, judge, politician, officer of the law, or a civil servant. I am assuming that MTBR.COM is a forum where one can post an opinion as long as there is no violation of the criminal code. I am the product of the Canadian, Ontario, and Peel education systems, so if my articulation or interpretation of the English language is not accurate or misleading, don't blame me.

First of all I have the notes filled as Leone v. University of Toronto, Barrie Court File No. 04-B8059, heard before the Ontario Superior Court of Justice on August 3 and September 6, 2006, with judgment on September 25, 2006.

There are some important items that are mentioned in the "Findings" section of the document, that are useful for the public and land owners alike to know about to provide ever increasing wisdom in the world we live in.

- Always put up signage indicating users of trail must do so at own risk, and that trails are not regularly maintained, inspected, and may contain hazards. Otherwise you could be held responsible for accidents if you own the land or had a hand in building the trails.

- Signage must be at all points of trail entry, not just the head of trails. Mr. Leone apparently entered the trails system on a side road and therefore saw no signs.

- Even though you may only allow trails to be used for cross country skiing during the winter months, the fact you may be doing trail maintenance during other months of the year means that the trails are your responsibility all year round (unless you put up signage mentioned in first point, or clearly put up signage prohibiting other specific activities).

- If you know that other types of users are using your trails for other activities than intended, like mountain biking, ATV's, camping, or horseback riding, then you have a duty of care (ie. responsibility) for these people. Unless, of course, you put up signage as mentioned in first point.

- If someone has an accident on your property, always make sure you act by doing something to prevent it from happening next time. Otherwise you will be accused of negligence if you do nothing.

- Even though a hole may be created by an ATV on your trails, causing someone to trip over it and break their spine, you are responsible for this hazard and fixing it (unless you have clear signs indicating that ATV's are not allowed, or again, if you have signage as mentioned in first point).

From the statements of the court mentioned in this document, it appears that Mr. Leone has a good case to win so far.
 

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The docs are very interesting. This is my reading of them, but IANAL.

The Crown & U of T Committee asked for summary judgement, basically saying that Leone didn't have a case. The court turned them down and said that there were severable triable issues to be decided.

The case hinges in part on whether the Kolapore uplands are "rural" "vacant" "undeveloped" "forested" or "wilderness", or whether they are "recreational trails".

If the former, Leone is presumed to have willingly assumed all risks associated with entry.

If the latter, and the trails were correctly posted, then Leone would have to show that the Crown created a danger with deliberate intent of doing harm, or acted with reckless disregard for his safety.

So Leone is arguing that Kolapore is neither wilderness nor correcly posted recreational trails, as defined by the Occupier's Liability Act 1999. He claims that MNR has not met the duty of care that would be required, and that since there were no "use at own risk" disclaimers at the trailheads, they are liable.


The summary judgement says nothing at all about whether either the Crown or U of T Committee ARE liable, only that given the facts and the law, Leone has an arguable case and it should proceed to trial.

We should all hope it DOES go to trial because whatever the outcome, it will clarify the legal situation.

What seems to be reasonably clear from the transcript is that if the trails had been correctly posted at the trailheads with a "use at your own risk" disclaimer, there would have been no case in the first place.

Also: a subtext is that ATV use on MNR lands governed by the so-called Free Use policy causes hazards for other trail users (I couldn't work out if the hole Leone fell into was an ATV track but it seems very possible from the documents).
 

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What I meant to add above was that the questions about whether Mr Leone took reasonable precautions to avoid injury etc have yet to be addressed in court.

It seems inconceivable to me that someone who considered themselves an experienced MTBer, especially if they had ridden Kolapore several times before, could not have been aware of the potential dangers, or the reputation of Kolapore as a challenging trail system, and no doubt the defence will make this point as powerfully as they are able.
 

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Kudos Ricksom! Nice work tracking down some docs. How much did it cost you - I'd be willing to help defray your costs if you like.

I'm curious how much pressure and hassle this jackass has been receiving vis a vis those 'wanted dead or alive' posters folks are putting up. Does anyone have any other ideas about how the heat could be turned up on this **********?
 

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Well, don't really thank me. Nogg's got the paperwork. I just felt I should post a public service of advice, and it appears that Mr. Pink did the legal interpretation of the case.

Lots of people looking at this you know!
 

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RA, you know I respect you, but I do not think that the posters and harrassment are the way to go with this.

The outcome of this case will be reported widely and if Leone were to claim that he had been harrassed or received threats from the MTB community, it would be a horrible black eye. It will put anyone advocating for the MTB community on the back foot. It makes us look like a bunch of goons.

The posters and other stuff may seem funny and/or make folk feel better but they do not help the cause one bit. Not one bit.

Like it or not, Leone clearly has a case which is arguable in law and it is in everyone's interest to get it cleared up. The courts have jurisdiction here, and if his case is ridiculous, he will lose. Courts are not stupid.

What would really help would be for MTBers to publicise this case and make rational arguments about why MTB access to trails is good for everyone. When it comes to trial later this year or sometime next year, people should go to court wearing MTB gear and be prepared to tell everyone why this case is so important. Civil, public support for the plaintiffs and the principle involved is much, much more helpful than trying to pressure someone from withdrawing a legitimate action by these kinds of tactics.

By the way, I am sure that the reason Leone is not saying anything publicly is that courts hate parties to an action trying it in the court of public opinion before the trial itself.

Just to be really clear in case by saying all of this I pull down 'teh hate' on myself, I obviously would like to see this action fail since it has cast a pall over trail access for all of us. However I would like to see it fail in court so that justice can be seen to be done, rather than being settled out of court, which clarifies nothing.
 

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So when the law is in conflict with doing the right thing, then what are we supposed to do? Sit back and let old white guys decided what is best for the land and trails? **** that.

I'm not gonna be the one doing it, but Mr. Leone deserves to have his life made miserable. Even if he wins, if someone were to make a public example of him in a very ugly way...I think that will impress upon people in the future not to initiate such legal actions. People are social creatures, and quite prone to peer pressure and community expectations.

He started it. If he wants to stop it, he can drop the suit and take out a full page ad in the the newspaper stating he's dropped it and apologizing.

Courts hate people "trying cases in the court of public opinion" because they know that their own verdict is impotent and that people can't be easily controlled. If the law doesn't work, then step righteously outside of it, IMO. He's abusing the system for his own benefit, ergo the system is part of the problem.

This suit can set a dangerous precedent. Dangerous enough that I believe it could be successfully argued that the exertion of maximum prejudice against Mr. Leone is justified.
 

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The problem with that argument, RA, is that what's good for the goose is good for the gander. Your approach legitimises direct action against MTBers by people who don't approve of their (legal) access to trails. We have both seen that in the Don (trail sabotage).

If it is okay for you to bypass the courts, because you think you are right, then presumably it is okay for them, if they think they are right?

You may not like that 'a bunch of old white guys*' decide what is best for the land and trails but let me put it this way: it is the worst possible option, except for all of the others.

When you fight the law, the law usually wins. That's why it's called the law.
 

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If they think what they're doing is right, who am I and how am I to stop them? The law is a straw dog anyways, useful only for punishment and not prevention. It's only by upbringing and habit that people obey it. Anarchy, lawlessness and societal collapse is only 3 meals away, my friend :)

We are all the arbiters of what we think is best for the world. So, when this puts two people in conflict, somehow someway things will get worked out. I don't know how, and I don't care how. I trust that to the universe and the karma of the participants. I only know that I am sick of the time, energy and other overhead that goes into a slow legal system that's practically designed to screw us in these kinds of matters.

I'm not advocating fighting the law. I'm advocating IGNORING it when it doesn't conform to righteous behaviour and land use.

If we all waited for the law to get things done and taken care of, I think we'd be in exceptionally poor state as a society. Society is made of people, not laws. If someone were to attack you (and you couldn't run away) are you gonna wait for the cops to show up and stop it? No, you'll defend yourself. I don't see this case much differently.

Besides, the USA has demonstrated that unilateral action ignoring laws and customs is completely acceptable and necessary in todays world to protect your best interests. Who am I argue to with that? ;)
 

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You do realise this is a LAWYER we're talking about? Who knows the LAW? Who has demonstrated that he is happy to USE it?

Threaten death or bodily harm

Under the Criminal Code, it is an offence to knowingly utter or convey a threat to cause death or bodily harm to any person. It is also an offence to threaten to burn, destroy or damage property or threaten to kill, poison or injure an animal or bird that belongs to a person.

Penalties

The offence of utter death threat may be prosecuted by summary conviction or by indictment. If prosecuted by indictment, the accused person is entitled to elect trial by jury and upon conviction is liable to up to five years jail. In most cases, however, the offence is prosecuted by summary conviction, requiring a trial before a lower court justice. In this case, the maximum penalty is 18 months imprisonment.

What the Crown must prove

To secure a conviction at trial, the Crown must prove that the person making the threat did so knowingly. That is, the prosecution must show that he was aware of the words used and the meaning they would convey. It also must show that he intended the threat to be taken seriously, that is, to intimidate or strike fear into the recipient. It is not necessary that the person making the threat intend to carry it out or be capable of doing so. The motive for making the threat is equally irrelevant.
also

Criminal Harassment

Criminal harassment is the legal term for stalking, which is a form of behaviour. It was introduced into Canada's Criminal Code in April 1993. The purpose of the legislation is to better protect victims of criminal harassment by responding to harassing behaviour with stiffer penalties before more serious harm results. It is defined in section 264 of the Criminal Code as follows:

(1) Criminal Harassment: No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited Conduct: The conduct mentioned in subsection (1) consists of:

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.
 
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