Written By: Kate Hunter, Associate, and Alicia Abbott, Student-At-Law
7 Minute Read
For many Ontarians, time on or near the water is a treasured part of summer, whether at a cottage, backyard pool, beach, or waterpark. However, water-related activities can carry serious risks. According to the Canadian Drowning Report, Ontario records an average of 190 water-related deaths each year. [1] While not every drowning incident is caused by negligence, some may have been preventable if reasonable safety measures had been in place. Understanding the legal implications of a drowning incident in Ontario can help families access the support they need in the aftermath of a tragedy. This blog explains when a drowning incident may give rise to a legal claim, who may be responsible, the duties occupiers owe to keep their premises reasonably safe, and the types of evidence that can help establish liability.
When Does a Drowning Accident Become a Legal Issue?
A drowning or near-drowning accident may become a legal issue when someone’s negligence contributes to the incident. This can include situations where a property owner, municipality, business, camp, resort, or other occupier failed to take reasonable steps to keep the area safe, such as addressing known hazards, providing appropriate warnings, maintaining docks or pool areas, or supervising activities where reasonably required. Liability will depend on the specific facts, including the nature of the water, how the area was being used, what risks were foreseeable, and what precautions were taken.
Common Locations Where Drowning and Near-Drowning Incidents Occur
Drowning incidents can occur in a variety of settings, from private backyards, natural bodies of water, and even bathtubs. The following statistics from the 2025 Canadian Drowning Report illustrates this: [2]
Lakes and ponds
- Accounting for 36% of drowning deaths, lakes and ponds are the most common locations for fatal drownings in Ontario. Between 2017 and 2021, an average of 176 people drowned each year in these settings.
Rivers
- Rivers account for 27% of drowning deaths. Strong currents, changing water levels, cold water temperatures, and submerged hazards can make rivers particularly dangerous.
Private swimming pools
- Approximately 9% of drowning deaths occur in pools, with 92% of these fatalities taking place in private residential pools.
- Where information about pool fencing was available, 65% of private pools involved in a drowning death either had no fence or a non-compliant fence, underscoring the importance of complying with local pool enclosure by-laws.
Bathtubs
- Bathtubs account for 14% of drowning deaths. Older adults are particularly at risk, with 37% of bathtub drowning deaths occurring among individuals aged 65 and older.
Who May Be Responsible for a Drowning Accident?
Responsibility for a drowning or near-drowning incident will depend on the specific facts of the case. However, liability may extend to one or more parties, including:
- Property owners
- Occupiers of the premises
- Camp operators
- Municipalities
- Resorts
- Marinas
- Businesses that own or operate pools, including waterparks, beaches, docks, or other recreational facilities.
Understanding Occupiers’ Liability in Ontario
In Ontario, the Occupiers’ Liability Act (“Act”) governs situations where individuals are injured because of unsafe conditions on premises. [3] According to the Act, premises can be lands or structures, including water. The Act imposes a duty of care on the occupier of a premise to, in all circumstances, take reasonable care to see that individuals entering the premises are reasonably safe while on the premises. This duty applies whether the danger is caused by the condition of the premises or by an activity carried out on the premises.
Safety and Maintenance Obligations
Under the Act, the steps required to meet the occupier’s duty of care may vary depending on the nature of the body of water, the use of the property, the foreseeability of harm, and whether the hazard is obvious, known, or unusual.
Pools
For controlled environments like swimming pools, the occupier’s obligations tend to be more prescriptive due to the higher degree of control and the foreseeable uses of the premises. Occupiers typically have a responsibility to:
- Construct the pool to be reasonably safe for its intended use.
- Address known hazards and provide appropriate warnings where reasonably required. [4]
- Take steps to provide appropriate supervision where reasonably required, especially in commercial, institutional, or high-risk settings, such as waterparks. [5]
- Complying with applicable municipal pool by-laws, including requirements for minimum fence heights and self-closing and self-latching gates. [6]
Lakes, Ponds, and Rivers
For natural bodies of water like lakes and rivers, the occupier’s obligations are often have a different focus, concerning features such as artificial structures and known, non-obvious hazards, while recognizing the inherent risks associated with natural environments. Occupier’s typically have a responsibility to:
- Ensure structures they maintain surrounding lakes and rivers such as piers, boardwalks, boat launches, stairs, railings, and access routes, are reasonably safe. [7]
- Warn of known, non-obvious, or hidden dangers that are not inherent to the natural environment and are sufficiently probable and foreseeable. [8]
Near-Drowning Incidents and Serious Brain Injuries
Drowning is often thought of as fatal. However, drowning that does not result in death happens much more frequently. The 2023 Ontario Non-Fatal Drowning Report notes that every fatal drowning in Ontario, there are nearly four non-fatal drownings that are serious enough to require
an emergency department visit.[9] A non-fatal drowning can result in serious injuries, including hypoxic or anoxic brain injuries caused by a lack of oxygen to the brain. In some cases, a person may also suffer a traumatic brain injury if the incident involves a fall or impact. As a result, survivors may require long-term rehabilitation, attendant care, assistive devices, home modifications, and ongoing support with daily activities to support their recovery.
What Evidence Is Important in a Drowning Injury Claim?
It is important to understand what evidence may be relevant in a drowning or near-drowning claim so that it can be identified and preserved promptly if an incident occurs. This evidence can be critical to establishing the occupier’s duty of care, whether that duty was breached, the cause of the incident, and the extent of the damages.
Witnesses Statements:
- These statements provide direct accounts of the incident, the conditions of the premises, and the actions of individuals involved.
Photographs and Videos Documenting the Incident and the Premise
- This provides objective visual evidence of the scene and may help reconstruct events.
Recording Safety Features: Warning Signs or Barriers
- The presence or absence or safety features is critical in determining whether the occupier fulfilled their duty of care.
Maintenance and Inspection Records
- This may demonstrate whether the occupier had a reasonable system in place for maintaining the premises and identifying potential dangers, or neglected their system.
Medical Documentation
- This documentation establishes the nature, extent, and severity of the injuries sustained, which is essential for proving damages in a claim.
How a Lawyer Can Help
Following a drowning or near-drowning incident, determining who may be legally responsible can be complex and will depend on the specific facts of the case. An experienced personal injury lawyer can investigate how the incident occurred, preserve critical evidence, identify potentially responsible parties, and assess whether reasonable safety measures were taken. This assistance is critical to allow you to focus your efforts on recovering from an injury, or the loss of a loved one.
Conclusion
During Ontario summers, it is important to understand the potential legal implications of a drowning or near-drowning incident and the support that may be available. Determining whether negligence played a role often requires a complex, and careful investigation into the circumstances. At McLeish Orlando, our personal injury lawyers will guide you through the this process, protect your legal rights, and pursue the support you need, allowing you to focus on what matters most: your recovery and your family.
SOURCES:
[2] Ibid.
[4] Hutchison v. Daredevil Park Inc., 2003 CanLII 25623 (ON SC) at para 18.
[5] Ibid at paras 10 – 11.
[6] Bylaw enforcement – fences – height – swimming pool enclosures – pool fence hot – tubs – spas – whirlpools – on private property
[7] Woods v. Ontario, 2003 CanLII 15637 (ON CA) at para 25.
[8] T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd., 2026 ONCA 371 at paras 47 – 49.
