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August, 2012
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UPDATE: Liability Waivers

James Tomlinson
James Tomlinson,
Partner

By Jim Tomlinson
Published in an MB Sports and Entertainment Newsletter

The British Columbia Court of Appeal recently released a decision which has significant implications for the law regarding the enforceability of liability waivers. At the trial level, the plaintiffs, Deanna Loychuk and Danielle Westgeest, sought damages for personal injuries sustained in a zip-lining accident. At the time of the accident, the plaintiffs were taking part in a tour offered by the defendant, Cougar Mountain Adventures Ltd. (“Cougar Mountain”).

The Court of Appeal had to consider an appeal brought by the plaintiffs after the trial judge dismissed their claims against Cougar Mountain on the basis that the plaintiffs had executed waivers of liability prior to participating in the zip-lining tour. The Court of Appeal ultimately upheld the trial judge's decision1 and dismissed the plaintiffs' appeal.2 An application for leave to appeal to the Supreme Court of Canada has been filed, but the Supreme Court has not yet determined whether it will grant leave to appeal.3

At the time of the plaintiffs' zip-lining accident, Cougar Mountain operated a zip-line tour in Whistler, British Columbia. The tour involved strapping a person into a harness, which would then be sent down a line, reaching speeds of up to 100 km an hour over a distance, on some lines, greater than 1,500 feet.4

Ms. Loychuk, who was 41 years old at the time of the accident, went to Whistler as part of a group to celebrate a friend's birthday. When her friend suggested the group all partake in the zip-lining adventure, Ms. Loychuk made a reservation for the entire group.

Prior to the incident at issue in the case, Ms. Loychuk operated a business that offered kick boxing/fitness programs for women. As part of her business, Ms. Loychuk was familiar with waivers. In fact, she required all of her clients to sign a waiver of liability.5 In addition, Ms. Loychuk franchised her business, a process which began with the execution of a waiver of liability and assumption of risk agreement.

Upon arrival at Cougar Mountain, Ms. Loychuk was given a release to fill out and sign. In both her affidavit and upon cross-examination, she stated that she understood that the release would prevent her from suing the zip-line company for certain mishaps, such as if she tripped and broke her leg. However, she claimed that she did not realize that the release gave Cougar Mountain immunity for injuries caused by their own employees' mistakes.

Ms. Westgeest was 26 years old at the time of the accident and had recently graduated from law school. She was in Whistler with a group of friends celebrating the upcoming marriage of one of her friends. On arrival at the Cougar Mountain office, this group was also presented with, and required to sign, release forms. During her examination for discovery, Ms. Westgeest stated that when one of her friends asked about the release, she made a flippant remark to the effect that based on what she knew from her contracts class, “releases may or may not be binding.” Further, she declared that at the time that she signed the release, she was not aware she was waiving all rights as against Cougar Mountain, including the right to make any claims arising from the company's own negligence.6

The release provided by Cougar Mountain was a one-page document with the following header:7

SKYLINE WAIVER

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISKS AGREEMENT (hereinafter referred to as the "Release Agreement")

BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT
PLEASE READ CAREFULLY!

Signature

In the body of the release, it was specifically stated, in either bold or capitalized letters, that anyone who signed the document thereby agreed to waive any and all claims with respect to any cause whatsoever, including negligence or a breach of any duty of care owed under the Occupiers Liability Act.8

Ms. Loychuk's group and Ms. Westgeest's group were merged into one mid-way through the tour. Ms. Loychuk was sent down a line but stopped before reaching the lower platform. Ms. Westgeest, who was unable to see Ms. Loychuk suspended on the line, was sent down by a guide. With no ability to stop herself, Ms. Westgeest collided with Ms. Loychuk, causing both women to sustain personal injuries. It was determined that miscommunication between the guides was the sole cause of the accident.9

Grounds of Appeal

On appeal from the trial level decision, the plaintiffs alleged that the trial judge made the following errors:10

  1. He erred in finding the release was not unconscionable pursuant to s. 8 of the Business Practices and Consumer Protection Act (BPCPA);11

  2. He erred in holding that he was bound by prior authorities to conclude that the Release was not unconscionable;

  3. He erred in failing to consider and apply the reverse onus provisions of ss. 5(2) and 9(2) of the BPCPA; and

  4. He erred in finding that there was consideration in exchange for the signing of the Release.

Forewarning and Timing of Waiver

Although the plaintiffs admitted to reviewing the requirement to sign a liability waiver on the Cougar Mountain website prior to commencing their excursion, the Court of Appeal indicated that whether either of the plaintiffs had actually read the statement on the Cougar Mountain website regarding the waiver was immaterial. This suggests that even if the liability waiver was presented to the plaintiffs at the last minute, upon arrival at the site, and even if the plaintiffs were told they would be prohibited from participation unless they signed the document, the liability waiver will still be enforced. This is similar to the scenario in Delaney v. Cascade River Holidays Ltd, where the plaintiffs were presented with a liability waiver before boarding a van to begin their white water rafting excursion.12

In this case, the plaintiffs argued that they were forced into signing the waiver due to the timing of its presentation. In particular, they argued that by being presented with a last minute liability waiver that required them to waive fundamental legal rights at the expense of not being able to participate in an activity, they were essentially forced into signing the waiver as it was too late to change their plans. However, the Court did not accept this argument, noting that the waiver would be binding regardless of the timing of its presentation and signing.

Two elements must be established before a contract can be set aside on the grounds of unconscionability...

Is the Release Unconscionable or Unenforceable at Common Law?

The language used to express the test for unconscionability has varied over the years. Recently, it was discussed in British Columbia in McNeill v. Vandenberg,13 and mirrored in Roy v. 1216393 Ontario Inc.14 In Roy, Mr. Justice Tysoe quoted the following from the judgment of Madam Justice McLachlin, as she then was, in Principal Investments Ltd. v. Thiele Estate:

Two elements must be established before a contract can be set aside on the grounds of unconscionability. The first is proof of inequality in the position of the parties arising out of some factor such as ignorance, need or distress of the weaker, which leaves him or her in the power of the stronger. The second element is proof of substantial unfairness in the bargain obtained by the stronger person. The proof of these circumstances creates a presumption of fraud which the stronger must repel by proving the bargain was fair, just and reasonable.15

Additionally, the plaintiffs acknowledged that there was a well established line of authority in Canada holding that releases relating to recreational sports activities were conscionable. Although the plaintiffs submitted that those authorities should be distinguished on the basis that the operator had total control of the risk, the Court of Appeal did not agree that control of risk by the operator was relevant to consideration of the conscionability of the release.16

Is the Release Unenforceable for Lack of Consideration?

The Court of Appeal followed the decision in Delaney, which stated that valid consideration in exchange for the execution of a waiver of liability could be the ability to participate in the activity by the party executing the waiver.17 In the case at bar, the consideration received by the plaintiffs in exchange for signing the liability waiver was being allowed to participate in the zip-lining activity.

Role of Business Practices and Consumer Protection Act (BPCPA)

The BPCPA in British Columbia is the equivalent of the Ontario Consumer Protection Act and contains many similar provisions. In the case at bar, the Court of Appeal opined that it was not necessary to decide whether the BPCPA applied to recreational activities because the provisions relied upon by the plaintiffs, if found to apply, would still not amount to an invalidation of the release.18 However, the court left open the possibility that a provision in the BPCPA, or its equivalent in another jurisdiction, may lead to the invalidation of a liability waiver. In Cougar Mountain, the provision pleaded by the plaintiffs was with respect to deceptive advertising. The plaintiffs introduced evidence that on the Cougar Mountain website, under the heading “Frequently Asked Questions”, was the following:

Q: Is it safe?

A: The Skyline system is fully engineered and certified. Skyline is the safest cable ride system in the world because it utilizes a permanent rock anchor system rather than anchoring cables into trees. The cables used are also 3 times the thickness of conventional zip line systems.19

The plaintiffs contended that the trial judge failed to properly take into consideration their argument that Cougar Mountain's website contained information that was deceptive and designed to mislead consumers regarding the safety of zip-lining. The Court of Appeal held that there was no evidence that the question and answer, as they appeared on the Cougar Mountain website, had anything to do with either plaintiff's decision to participate in the zip-lining tour.20 The Court of Appeal further held that deceptive statements cannot be pleaded in the abstract. As such, the Court of Appeal determined that a consumer cannot allege that a statement was deceptive without establishing that she relied on that statement when she entered into the transaction in issue.

...the court enunciated a three stage analysis which must be applied in order to determine whether a signed release of liability is valid...

Application

The decision in Cougar Mountain affirmed the principles enunciated in the Ontario case of Isildar v. Rideau Diving Supply.21 In Isildar, the court enunciated a three stage analysis which must be applied in order to determine whether a signed release of liability is valid. The analysis requires a consideration of the following factors:

  1. Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signatory?

  2. What is the scope of the release (reproduced above) and is it worded broadly enough to cover the conduct of the defendant?

  3. Whether the waiver should not be enforced because it is unconscionable.

In line with the first step of the Isildar test, the Court of Appeal in Cougar Mountain held that not only were the plaintiffs given enough time to read the contents of the release, but Cougar Mountain took sufficient steps to bring the release to their attention.22 At the second stage of the Isildar analysis, the Court of Appeal accepted that the scope of the release was sufficient. The wording of the Cougar Mountain release, with capitalized type face emphasizing its broad scope, combined with the plaintiffs' experience with similar waivers, seemed to have been sufficient to surpass this hurdle. At the third stage of the Isildar analysis, the Court of Appeal considered the issue of unconscionability as described earlier in this paper.

Conclusion

As noted above, the Court of Appeal upheld the trial judge's decision to dismiss the plaintiffs' claims against Cougar Mountain by rigidly applying the Isildar test used by Ontario courts. This is important for entities which operate extreme sporting activities, as the validity of an executed waiver of liability is of the utmost importance to protect them from costly and time consuming litigation. The Cougar Mountain decision emphasized the importance of drafting releases which are clearly worded to preclude legal action, even in cases of negligence, and ensuring that the release is brought to the attention of the participant. The Court of Appeal reaffirmed that if a waiver is correctly written, presented to a participant, and duly executed by the participant, the courts will not hesitate to firmly enforce the terms of the release.


1 Loychuk v Cougar Mountain Adventures Ltd., 2011 BCSC 193, 81 BLR (4th) 320.
2 Loychuk v Cougar Mountain Adventures Ltd., 2012 BCCA 122, 31 BCLR (5th) 23 [Cougar Mountain].
3 Loychuk v Cougar Mountain Adventures Ltd. [Application / Notice of Appeal], 2012 CarswellBC 1726 (WL Can) (SCC).
4 Supra note 1 at 3.
5 Ibid at 6-7.
6 Supra note 2 at 10.
7 Ibid at 12.
8 Occupiers' Liability Act, RSBC 1997, c 337.
9 Supra note 2 at 11.
10 Ibid at 26.
11 Business Practices and Consumer Protection Act, SBC 2004, c 2.
12 Delaney v Cascade River Holidays Ltd (1983), 44 BCLR 24 at para 50, 24 CCLT 6 (BC CA) [Delaney].
13 McNeill v Vandenberg, 2010 BCCA 583, 2010 CarswellBC 3473 (WL Can).
14 Roy v 1216393 Ontario Inc., 2011 BCCA 500, 345 DLR (4th) 323.
15 Principal Investments Ltd. v Thiele Estate (1987), 12 BCLR (2d) 258 at para 263, 37 DLR (4th) 398.
16 Supra note 2 at 32.
17 Ibid at 70.
18 Ibid at 49.
19 Ibid at 55.
20 Ibid at 59.
21 Isildar v Rideau Diving Supply (2008), 168 ACWS (3d) 444, 2008 CarswellOnt 3580 (WL Can) (Ont SCJ), [Isildar].
22 Supra note 2at 18..


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