Gordon R. McKenzie


HOPPING THE FENCE - By Gordon R. MacKenzie

Are you responsible if a trespasser gets hurt on your property? Property owners must take reasonable care to see that all persons coming on their property are reasonably safe- even trespassers. But what if the trespasser hurt themselves climbing the fence trying to get in?

Mr. and Mrs. Yelic tried to visit the grave of Mrs. Yelic's mother at the Gimli Municipal Cemetery after regular visiting hours. Mr. Yelic was seriously injured while trying to hop the decorative fence bordering the cemetery. Mrs. Yelic had crawled between the two horizontal metal pipes that made up the fence, but the joint between the top pipe and the pillar supporting it gave way as Mr. Yelic tried to go over it. (Yelic v. Town of Gimli).

The Manitoba Court of Appeal decided the irregular use of property did not entitle Mr. Yelic to total safety, as it would be "unusual" for a decorative fence to support the weight of a climber. The court also noted that their decision would have been the same under that province's Occupiers' Liability Act which became law after Mr. Yelic's mishap. Ontario's Occupiers' Liability Act is similar, so, you might expect the same result here.

A small victory for innocent property owners, but you could still be liable to a trespasser-- even though they are violating your rights as a property owner. So, be sure there are no hazards on your property and your insurance coverage includes public liability.

This article is presented as general information only and is not to be relied on as legal advice. You should contact your lawyer to see how the law applies to your circumstances before any action is taken.

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