As another summer season brings Canadians to beaches, lakes, and waterfront parks, tragic drownings remain an unfortunate reality. In recognition of this fact, the Lifesaving Society of Canada (the “Society”) observes National Drowning Prevention Week the third week of July each year, in similar fashion to the Royal Life Saving Society UK’s observance of Drowning Prevention Week in the third week of June.
The Society’s Swim to Survive Program
Instead of first highlighting the potential dangers of water-based activities, I wish to take a moment to emphasize the Swim to Survive program, which teaches the basics of survival in about three to four hours, including teaching non-swimmers how to roll into deep water, tread water for one minute, and swim 50 meters. These skills do save lives. In fact, the “majority of people who drown had no intention of going into the water,” which is worth bearing in mind.
Sample Case Law
Notwithstanding educational and preventative efforts, serious injuries and death still do occur in aquatic environments, often leading families to seek accountability through civil litigation. The case law affords many examples of claims, such as:
- Trajkovich v Ontario (Natural Resources), 2009 ONCA 898, concerning a boy who was rendered tetraplegic at the age of 17, while swimming at the Pinery Provincial Park;
- Fitkin v Latimer, 35 OR (3d) 464 (ONCA), concerning a fall at a private above-ground pool, involving the consumption of alcohol, which rendered the victim quadriplegic; and,
- Wessell et al. v Kinsmen Club of Sault Ste. Marie Ontario Inc., 1982 CanLII 1746 (ONSC), concerning the death of a 15-year-old boy, directly related to a near-drowning incident four days prior at Kinsmen Park within the Hiawatha Highlands Conservation Area.
The case I will focus on, however, is that of Sto. Domingo, Estate v Kenora (Town of), 2003 MBQB 65 (“Sto. Domingo”), a case which arose from the death of Ernesto Sto. Domingo, who drowned while attempting to rescue his 13-year-old nephew at Anicinabe Park in Kenora, Ontario, resulting in a claim against the municipality under Ontario’s Occupiers’ Liability Act.
The Battle of the Experts
The parties called expert witnesses with markedly different views concerning drowning dynamics and rescue scenarios.
Michael Shane, a respected authority associated with the Society, generally supported the proposition that warning signs and rescue equipment contribute to drowning prevention and improve emergency response. The plaintiff relied on this evidence to argue that, had proper signage and rescue devices been available, Mr. Sto. Domingo’s death likely would have been avoided.
Frank Pia, an internationally recognized authority on drowning behaviour and rescue, offered the view that while preventative measures may be beneficial in the abstract, there was insufficient evidence to conclude that the deceased would have acted differently or that available equipment would have been successfully deployed in time. The defendant relied on this evidence to argue that an absence of proper signage and rescue devices, in the circumstances, could not be said to have caused the drowning.
The Court ultimately preferred Mr. Pia’s evidence and, as a result, the estate’s claim was dismissed.
Why the Court’s Decision Matters
Estate claims arising from accidental drownings continue to be brought across Canada. Families, understandably, seek answers and accountability following devastating loss.
Sto. Domingo highlights an important principle in negligence law, however: a breach of duty does not automatically result in liability. Courts must be satisfied that the alleged failings of a defendant were a probable cause of the death itself, requiring more than mere evidence of imperfect safety practices having been implemented.
As Canadians continue to enjoy lakes, rivers, and beaches during the warmer months, the case underscores both the importance of water safety and the demanding evidentiary burden faced by plaintiffs seeking compensation after a drowning tragedy.
This blog post does not constitute legal advice. Those with prospective estate claims in negligence, or otherwise, should engage the services of a skilled estate litigation lawyer, to ensure the matter is properly considered and pursued.
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