Written By: Brandon Pedersen and Jamie Davison, Summer Student
As the weather gets warmer and the days get longer, many of us are packing up and heading to the cottage. Over 15 million Canadians participate in boating every year. Whether your summer plans involve fishing in Thunder Bay or tubing in Muskoka, here at McLeish Orlando LLP, we cannot emphasize enough the importance of practicing safe boating. Sadly, fatal boating accidents happen every summer in Ontario. Just last July, two people were killed in a tragic boating crash on Lake Rousseau in Muskoka. The loss of the 13-year-old girl from Toronto and 51-year-old woman from Oakville in this two-boat collision serves as a reminder that boating accidents can be as tragic as those on the road.
What is a boating accident?
A boating accident refers to any vessel-related incident falling under one of the three following categories (Keep in mind: A vessel refers to both motorized watercrafts (powerboats) and non-motorized crafts (kayaks and canoes)):
- Collisions between multiple vessels: two or more boats collide during activities such as water sports, fishing, sailing, or even while docked.
- Collisions between a vessel and an object: a boat collides with an object such as a pier, log, dock, bridge, or rock.
- Accidents that occur on a vessel: an incident that happens while on a boat, these incidents can range from slip and falls to drownings due to equipment failures.
Did you know:
- The most common type of fatal boating accident is capsizing (where the boat overturns), followed by accidents where the occupant falls overboard.
- The most common vessel on which boating accidents occur is a small powerboat (boats propelled by motors and are under 5.5m in length, such as a small, open, fishing boat).
- The most common cause of boating accidents is a failure to plan or take caution with regard to potentially rough weather conditions. Other significant risk factors include boating while under the influence of drugs and alcohol, failing to wear a life jacket, and speeding or doing dangerous maneuvers.
- The most common cause of death in a boating accident is drowning or immersion hypothermia causing 95% of the recreational boating fatalities that occurred between 1991-2008 in Canada.
- The most common trauma injury causing death in boating is a head or brain injury, followed by spinal injuries, fractures, and major lacerations.
Boating Accidents Liability in Ontario
Boating accidents in Ontario are governed by the Marine Liability Act (MLA). The MLA sets out how and when you must bring a claim for damages following a boating accident, and the limits of compensation. Boating accidents intersect several areas of law, and the law assumes that boat operators and passengers are aware or ought to be aware of the safety regulations involved with boating. It is important that boat operators and passengers are aware of the following legislation:
- Highway Traffic Act: sets out the duty of care you owe to others onboard your motor-powered boat and the provincial prohibition of impaired operation of a vessel.
- Insurance Act: includes the rules of marine insurance.
- Occupier’s Liability Act: sets out your duty to keep passengers onboard your vessel safe.
- Canada Shipping Act: includes the federal regulations pertaining to the registration of vessels and their maintenance and safety.
- Criminal Code: includes the federal offences applicable to boating including dangerous or impaired operation of a vessel, operating an unseaworthy vessel, the failure to stop after an accident, and failure to stop for an enforcement office. If found guilty of a criminal offence such as impaired driving, the driver of the vessel might be found criminally liable on top of any personal liability claims.
The presumption under the MLA is that unless proven otherwise, the fault or neglect in relation to the accident in question lies with the owner of the vessel. The boat owner and operator are responsible for maintaining the safe condition and operation of the vessel at all times, and for ensuring the safety of those on board. A boat owner or operator can be found liable if they knew or should have known of danger or a risk of danger and left it unaddressed. For example, if while tubing in the Kawarthas, you were injured due to defective water sports equipment, the owner of the boat could be found liable if they knew or should have known the equipment was unsafe.
Who can sue who?
If injured in an accident on a pleasure craft, (a vessel used for pleasure and does not carry passengers) the MLA permits the accident victim, their dependents, or their surviving family members to file for damages against the owner or operator of the vessel. If the injuries sustained were caused at least partially by the boat owner or operator, you may be able to obtain financial compensation from their boating insurance. Other boaters, even local and provincial boating authorities, may also be sued for a failure to maintain the safe condition of their vessel or for a failure to warn boaters of hazards.
How long do you have to sue for a Boating Accident in Ontario?
The limitation period is set out by the MLA. While the best practice is to seek legal advice immediately after an accident occurs, the MLA states that a personal injury claim as a result of a boating accident must be filed within two years of the accident, or two years following the death of the victim. Exceptional circumstances may permit a claim to be brought outside this two-year window.
The MLA also sets out the limit for personal injury damages. In Ontario, if the boat has a gross tonnage of less than 300 tonnes (this is standard for a pleasure craft) compensation is set at a maximum of $1,000,000. In Ontario, an injured person may be entitled to claim damages to compensate for all their losses from a boating accident, including:
- Pain and suffering
- Past and future lost income
- Extraordinary future health care and home maintenance costs
- Out-of-pocket expenses
It can be more complicated to pursue compensation for boating accidents as opposed to car accidents. This is because boating accidents do not have the benefit of “no-fault” accident coverage. What this means is that unlike following a car accident, victims are not automatically entitled to receive statutory accident benefits to cover medical treatment, care, and lost income while recovering from an injury. If the boat owner or operator possesses boating insurance, it is possible that the coverage provides post-accident benefits. More often, the injured party has to wait for compensation following the resolution of a lawsuit.
How Our Toronto Personal Injury Lawyers Can Help?
With the potential for issues involving insurance law, accident law, and criminal law to intersect, boating accidents can become quite complicated cases. Let the McLeish Orlando team help to address this complexity. If you, or a loved one has experienced damage or serious injury as a result of a boating accident, our experienced team at McLeish Orlando LLP is ready and more than capable to help. Contact our personal injury lawyers for a free consultation today.