Most people who visit a recreation park, activity centre, or a ski hill are aware that they are assuming some risk and there will be some sort of liability waiver sought from them. The Occupier’s Liability Act (the "Act") is aBritish Columbia statute which describes the level of care or responsibility that people who own, lease, or otherwise “occupy” property owe to people who may enter those premises. A recent decision of the British Columbia Court of Appeal has led to significant developments in this area of law.

FACTS

Jason Patrick Apps travelled from Australia to Canada in November 2015, seeking to enjoy a few years working, living and snowboarding at Whistler Mountain. However, tragedy struck just 4 months later. On March 18, 2016, Jason suffered life-changing injuries while snowboarding at the Grouse Mountain terrain park. That day, Jason attempted a run down the park’s XL jump. He suffered a spinal injury at the C4 and C5 vertebrate and is now a quadriplegic.

At trial, Apps sued Grouse Mountain for damages, while alleging that the jumps in the park were too dangerous, that the Mountain did not sufficiently warn the public about the risk for serious injury, and that Grouse Mountain was negligent in the design of the terrain park. The trial judge dismissed Apps’ case. At trial, Grouse Mountain denied any liability, and relied on two key elements:

1. An exclusion liability notice which was printed on a sign above the ticket booth and on the lift ticket itself; and
2. Various warning signs posted in the park.

The trial judge held that Grouse Mountain had taken all necessary steps in informing the public, and, in this case, that Grouse Mountain was not liable for any injuries sustained on the hill. Additionally, the trial judge found that Grouse Mountain had taken reasonable steps to ensure that Mr. Apps knew that when he purchased the lift ticket he was agreeing to the own negligence clause written on the back of the ticket and, subsequently, protected Grouse Mountain from any legal actions in negligence.

THE APPEAL

The case proceeded to the British Columbia Court of Appeal, where the Court considered whether the trial judge erred:

1. In considering what was posted on the warning signs that Mr. Apps would not have seen until well after he purchased his lift ticket; and
2. That the trial judge applied the wrong legal test in dealing with Mr. Apps’ past experience on ski mountains.

Waiver documents, such as the one in this case, are only effective in releasing the operator from liability if reasonable steps have been taken to notify the claimant of the terms.  In their analysis, the Court ofAppeal examined the law of contract and the Act.

Section 3(1) of the Act imposes a statutory duty on an occupier of a premises (such as Grouse) “to take care that in all the circumstances of the case is reasonable to see that a person… will be reasonably safe in using the premises”. However, Section 4 of the Act permits an occupier to contract out of that statutory duty. To do so, they “must take reasonable steps to bring that extension, restriction, modification or exclusion to the attention of that person”.

The first question before the Court was whether Grouse Mountain was able to rely on the liability waiver with the steps they took to bring the exclusion notice to the attention of Mr. Apps. The specifics of this question revolved around, at what point during the transaction was Grouse Mountain obligated to bring the clause to Mr. Apps’ attention? The Court ruled that the appropriate time for providing notice to Mr. Apps was "prior" to the purchase of the lift ticket, when Mr. Apps could have the opportunity to read the terms of the negligence clause and then decided if he was still willing to continue with the transaction.

The Court then turned their attention to the issue of whether Mr. Apps had sufficient notice of the negligence clause because of his previous experience at Whistler. The Court of Appeal found that it is only actual knowledge regarding the specific term in question through an individual's previous dealings that is relevant. Therefore, Mr. Apps, having never dealt with Grouse Mountain or its liability waiver before, could not be found to be bound by the negligence clause. An “own negligence” clause is a particularly onerous contractual condition and, as such, the onus was on Grouse to bring the clause’s existence to Mr. Apps’ attention by “most explicit notice” (para. 83).

The Court of Appeal found that Mr. Apps may have indeed had some previous awareness of liability waivers and own negligence clauses while at Whistler, but this did not mean he could be seen to have waived legal rights with respect to the clause at Grouse Mountain. In conclusion, his time at Whistler was not enough to satisfy Grouse’s ability to contract out of the Act and other legal liabilities.

CONCLUSION

The British Columbia Court of Appeal unanimously found that Mr. Apps was not bound to the liability waiver. Mr. Apps’ case against Grouse Mountain may now move forward to trial, where it will be determined if Grouse Mountain will be held responsible for the injuries. As Grauer J. stated (at para. 8) “…my conclusion is not that Grouse Mountain is liable to Mr. Apps.That remains to be litigated.”

The individual does not need to sign an actual waiver document, as long as one can demonstrate that the waiver itself was reasonably brought to the attention of the public. As Mr. Apps’ case has shown, clauses that release an operator’s own negligence are among the most onerous of exclusionary clauses, and as such, the more explicit the notice must be.

While the case awaits trial, the decision by the Court of Appeal should serve as a warning for other parks, ski hills, and recreation areas that rely on the fine print in exclusionary clauses.

If you require more information on this decision or negligence claims in general, please do not hesitate to contact us through our website, or call us at (250)385-6004 / (888) 385-6004 to discuss.