However, as the case law demonstrates, a waiver will not always be effective in barring a potential plaintiff's claim. Accordingly, the aim of this paper is to examine the case law to identify various risk management strategies ski hill and resort operators can implement in order to shield themselves against potential liability. This paper will also explore the utility of summary judgment motions in defending personal injury lawsuits where an executed waiver has been obtained by the defendant(s).

When is a Waiver Effective?

In the 2008 decision in Isildar v. Rideau Diving Supply ("Isildar")¹, the Ontario Superior Court of Justice established a three-part test that the Court will use to determine whether or not a waiver is enforceable.² At the first-stage of the test, the Court considers whether the individual waiving their legal rights knew, at the time of executing the waiver, what legal rights they were giving up. In other words, did the person signing the waiver know that they were forfeiting a right or privilege (most commonly the right to sue) in exchange for participating in the activity in question or entering onto the premises? In some cases, plaintiffs will argue that a reasonable person would not agree with the terms of a waiver had they been fully aware of the risks associated with such activity. In these cases, the Court will look at whether the operator took reasonable steps to bring the terms of the waiver to the attention of the person signing the document.³

Generally speaking, an individual seeking to rely on the waiver does not have a duty to bring the waiver to the signing party's attention and explain its terms. Rather, the participant will be deemed to have understood the terms of the waiver. However, the British Columbia Supreme Court in Karroll v. Silver Star Mountain Resorts Ltd.⁴ found that the duty to take reasonable steps to bring the waiver to the attention of the signator is required in special circumstances.⁵ The Court identified a number of non-exhaustive elements that suggest the existence of special circumstances. These elements include:

1. the length and format of the contract;
2. the time available for reading and understanding it; and
3. the competency of the signing party.⁶

In cases where these factors are not present, the individual seeking to rely on the waiver may not have a duty to take reasonable steps to bring the waiver to the signing party's attention and the signing party may be deemed to have understood the waiver's terms.

The second stage of the Islidar test looks to the wording of the waiver to determine whether the release is worded broadly enough to cover the conduct of the defendant. In other words, does the agreement waive a plaintiff's right to bring the specific claim being advanced.⁷ Naturally, this is a fact-specific analysis. In order to satisfy the second part of the Islidar test, the language of the waiver must be worded in a manner that is specific to the way in which the injury was suffered. The wording of the waiver cannot be so broad so as to make the waiver unclear.

This point was exemplified in Loychuk v. Cougar Mountain Adventures Ltd.⁸ In that case, the plaintiffs were injured from a ziplining accident, caused by the negligence of the defendant activity operator, and were challenging the scope of the waiver they had executed. The particular waiver the plaintiffs signed stated, in bold letters, that the signing party agrees to waive any and all claims regarding any cause, including negligence or breach of duty of care owed under the Occupiers' Liability Act.⁹ However, the plaintiffs argued that they did not believe the waiver barred a claim arising from the negligence of the resort's employees. Even though the trial Judge and the British Columbia Court of Appeal held that the scope of the waiver did cover claims arising from the employees' negligence, this case demonstrates the importance of wording a waiver in a way that covers as many acts as possible but not so broad that it renders the waiver meaningless. This is a fine balancing act that counsel for ski resorts must achieve.

... the Court states that the plaintiff "cannot retrospectively void the waiver's effect by arguing he voluntarily signed something he did not understand or read"

The Ontario Superior Court's decision in Levita v. Alan Crew et al.¹⁰ is also instructive in outlining the characteristics of a well-drafted waiver. In that case, the plaintiff was a player on a recreational hockey team. The plaintiff brought an action against the league for injuries sustained during a game. However, prior to allowing participants to join the recreational league, all players were required to sign a waiver of liability. In defending against the plaintiff's allegations, the league relied on the waiver. The Court ultimately found that the waiver was a "complete defence to the claims against" the league.¹¹ Even though the waiver was passed among the players while they were in their dressing room and without any representative of the league to convey its terms, the Court found that the plaintiff had sufficient time to read the waiver and understand its terms. Alternatively, the Court held that it was open to the plaintiff to take the requisite steps to understand the contents of the waiver. This decision is particularly significant in that the Court states that the plaintiff "cannot retrospectively void the waiver's effect by arguing he voluntarily signed something he did not understand or read".¹² The Court in this case also found that the waiver in question was unambiguous and sufficiently enumerated the specific risks and dangers the waiver was intended to capture. The exact wording of the waiver was as follows:¹³

In consideration of my participation... I hereby acknowledge that I am aware of the risks and hazards associated with or related to ice hockey. The risks and hazards of ice hockey include, but are not limited to, injuries from:

• Collisions with the rink boards, hockey nets, and ice;
• Being struck by hockey sticks and pucks;
• Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head, and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed.

The Court found that the manner in which the plaintiff was injured in this case was captured by the third point of the waiver.

The Ontario Court of Appeal's decision in Kempf v. Nguyen¹⁴ provides another example of a waiver that was found to be enforceable. The Court of Appeal also provided guidance as to what terms a well-drafted waiver should include. Specifically, the case demonstrates that the language in the waiver must specifically include the parties who will benefit from the liability exclusion. Further, the Court noted that the waiver cannot be complicated or unduly lengthy.¹⁵ In Kempf, the Court noted that during the trial, the plaintiff failed to point out any ambiguity in the waiver.

At the final stage of the Islidar test, the Court has the opportunity to find that a waiver should not be enforced because it is unconscionable.¹⁶ The test for unconscionability was eloquently stated by Justice McLachlin, as she was then, in Principal Investments Ltd. v. Thiele Estate.¹⁷ In particular, Justice McLachlin stated that two requirements must be satisfied before a contract can be found to be unconscionable. First, there has to be a proof of inequality in the bargaining position of the parties. Second, there has to be proof of "substantial unfairness obtained by the stronger person".¹⁸

... an organization may seek to print releases or waivers on tickets and/or place signs throughout the establishment...

Are there Alternatives to a Waiver?

From a practical standpoint, at times it is unreasonable to expect an establishment to go through a waiver with each participant, bring the waiver to their attention, and to have them sign it. In these circumstances, an organization may seek to print releases or waivers on tickets and/or place signs throughout the subject establishment, as is common practice at many ski resorts. Even though this practice is less desirable than having each participant sign a waiver, the Courts have nevertheless found such printed waivers are sufficient where the establishment proves that it took all reasonable steps to bring the terms of the waiver to the individual's attention. The question of whether reasonable steps were taken is an objective one. In this respect, a Court will consider the manner in which the terms are presented on tickets and how the waiver signs are displayed throughout the premises. Ski resorts will not be successful in relying on the waiver unless the Court is satisfied that the patron should have seen the waiver wording.¹⁹

The Court's decision in Cejvan v. Blue Mountain Resorts Ltd.²⁰ is an example of an instance where a waiver printed on the back of a ski ticket was found to be valid. This was due, in part, to the way the ticket was designed. In particular, participants had to tear the ticket and attach it to a ticket holding apparatus. In doing so, the participants were forced to look at the back of the ticket where the waiver was printed. The Court found that this, along with the "clear, consistent, and visible" signs placed throughout the premises, amounted to sufficient notice of the waiver to the patrons.²¹ In addition, in determining whether there was sufficient notice, the Court will look at the physical location of the signs displaying the waiver. In particular, Courts will analyze whether an individual had a reasonable opportunity to observe the signs.²²

In cases where the signs displaying the waivers are too vague or where the waiver printed on the ticket does not use a sufficiently large sized font, the resort owner will not be successful in relying on the waiver. This is especially true in cases where it is the individual's first time at an establishment or where the individual is not familiar with the premises (i.e. season pass holder versus first time visitor).²³

Timing is Everything! – When to Bring A Summary Judgment Motion?

In Ontario, summary judgment motions offer an important alternative to expensive and protracted litigation. These motions, which are governed by Rule 20 of the Rules of Civil Procedure, allow parties to move to dismiss all or part of a claim without having to resort to a full trial.²⁴ Summary judgment motions will only be granted in circumstances when there is no genuine issue for trial. Therefore, these motions act as a barrier that prevent unmeritorious actions from proceeding further.

When a party relies on a waiver as a full defence to a claim, a summary judgment motion may be an appropriate way to attempt to dismiss the claim. The Ontario Superior Court of Justice in Brown v. Blue Mountain Resort Ltd²⁵ considered the use of summary judgment motions in cases involving waivers. The defendant ski resort sought to strike the plaintiff's claim by way of summary judgment motion, arguing that the plaintiff had agreed to sign a waiver before entering the resort's skiing area.²⁶ After examining the evidence, the Court refused to grant summary judgment to the defendant. The Court made a number of important findings, including:

1. that the ticket contained explicit wording indicative of a waiver;
2. that a large, prominent red sign at the resort's ticket offices advised skiers to read the waiver contained in the ski ticket; and,
3. that the sign at the ticket offices itself had waiver wording which included waivers against negligence.

However, the Court found that a proper determination of whether the waiver excluded liability could only be properly made at trial.²⁷

The Court's decision in Brown was made before the 2010 amendments to Rule 20 which granted judges new and expanded powers when hearing summary judgment motions. Judges are now able to weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence. The Supreme Court of Canada in Hryniak v. Mauldin²⁸ commented favourably on these amendments as they would promote simplified pre-trial proceedings and foster procedures that were better tailored to each specific case.²⁹ This cultural shift has been recognized by other Courts, including the Ontario Court of Appeal in its recent decision in Christoffersen Ltd v. Neilas Inc.³⁰ Justice Brown emphasized that summary judgment motions were increasing post-Hyrniak.³¹

If the plaintiff chose to sign the form and ignore the consequences, that was a decision freely made by the plaintiff

In Trimmeliti v. Blue Mountain Resorts Limited, the defendant ski resort successfully obtained summary judgment dismissing the plaintiff's action.³² The plaintiff sustained a clavicle fracture after colliding with a mesh ribbon while night skiing at the defendant resort. The Court held that there was nothing unreasonable or unlawful about the defendant excluding liability for the plaintiff's accident. Moreover, the Court held that there was no basis for a finding of unconscionability. As a result, there was no genuine issue requiring a trial. In the Court's decision, Justice Dunphy stated the following:³³

If the plaintiff chose to sign the form and ignore the consequences, that was a decision freely made by the plaintiff. The plaintiff was not free unilaterally to contract out of the waiver that he knew or ought to have known was a condition of his access to the resort.

However, in Borre v. St Clair College,³⁴ the Court dismissed the defendant's motion for summary judgment and found that a full trial was necessary to determine a waiver's validity. The plaintiff was registered in a Motorcycle Training Course offered by the defendant. After enrolling in the course, the plaintiff signed a waiver. Additionally, she confirmed that she understood the risks involved in participating and that she was responsible for her personal safety. Further, the plaintiff acknowledged that she would not hold the defendant liable for any losses or injuries incurred.³⁵

After examining the evidence, Justice McDermid indicated that several outstanding questions remained concerning the nature of the waiver which could only be answered in a full trial. Among the concerns discussed by Justice McDermid were the reasonable expectations of the parties when signing the waiver, the state of the motorcycle, and the adequacy of the supervision over the plaintiff's activities.

The lack of a full evidentiary record also contributed to the Court's decision to dismiss the summary judgment motion. The Court indicated that a decision could not be made without a full appreciation of the facts. This highlights the importance of asking detailed questions during the Examination for Discovery of the plaintiff in order to develop as complete an evidentiary record as possible.

As these contrasting cases show, defence counsel should consider a number of factors when deciding whether to bring a summary judgment motion. Summary judgment motions are often costly, and can inadvertently reveal weaknesses in the defendant's case. As a result, defence counsel should be cautious in bringing summary judgment motions and should fully explore the potential risks with their client.

However, in cases where a well-drafted waiver can act as a full defence, motions for summary judgment may be an effective and cost efficient means for dismissing claims. Ski resorts would likely want to employ waivers that are very detailed and all-encompassing in order to strengthen any potential arguments in a motion for summary judgment.

Counsel defending ski resorts who are dealing with a challenge to a waiver should give consideration to whether they have an appropriate case...

Conclusions and Takeaways

Where the enforceability of a waiver is in question, the Court is often left balancing the freedom to contract with a concern for providing sufficient protection to the injured party. The cases discussed demonstrate that a Court will enforce a waiver in cases where it is drafted in a manner that is:

1. unambiguous
2. sufficiently broad and
3. includes the parties who will be excluded.

In addition, the Court will enforce the waiver if the resort can demonstrate that it has taken reasonable steps to bring the waiver to the patron's attention so that the he or she is aware of the terms. With regards to the enforceability of a waiver, the three-part test arising out of Isildar continues to be used by the Courts in Canada in determining the enforceability of a waiver. Therefore, a waiver should be drafted in a manner that is consistent with the principles arising from that case.

Further, there are circumstances that make securing a signed waiver from each party impractical. In such circumstances signs, postages or printed terms on back of a lift ticket may suffice. However, the most effective strategy to limit a resort owner/operators exposure is to utilize these mechanisms in conjunction with a signed waiver.

Counsel defending ski resorts who are dealing with a challenge to a waiver should give consideration to whether they have an appropriate case for a motion for summary judgment, as it may provide a cost effective avenue to dispose of the claim. Careful consideration should be paid to the evidentiary record that would be before the judge hearing the summary judgment motion. Further, the risks associated with such motions should be discussed with the client.

In summary, the recent case law on waivers in the context of ski hill resorts illustrate two positive developments for resorts relying on waivers. First, Courts have shown an increased willingness to uphold a waiver. Second, in the post-Hryniak era, Courts are more likely to grant summary judgment in cases where the operator has a well-drafted waiver in place, thereby resolving the claim at an earlier stage of the litigation.

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¹ 2008 CanLII 29598 (ONSC).
² Affirmed in Loychuk v Cougar Mountain Adventures Ltd, 2011 BCSC 193.
³ Supra note 1.
⁴ [1988] BCJ. No. 2266 
⁵ Ibid.
⁶ Ibid, at para16-20.
⁷ Supra note 1.
⁸ 2012 BCCA 122.
⁹ Occupiers' Liability Act, R.S.B.O. 1996, c. 337.
¹⁰ 2015 ONSC 5316.
¹¹ Ibid at para 102.
¹² Ibid at 105.
¹³ Ibid at para 104.
¹⁴ 2015 ONCA 114
¹⁵ Ibid at para 57.
¹⁶ Supra note 1 at pp. 634..
¹⁷ Principal Investments Ltd v. Thiele Estate, 1987 CanLII 2740 (BCCA), at para 19.
¹⁸ Ibid.
¹⁹ Champion v. Ski Marmot Basin, 2005 CarswellAlta 977, at paras 17-18.
²⁰ (2002) CanLII 7591 (ONSC).
²¹ Ibid.
²² McQuary v. Big White Ski Resort Ltd, [1993] BCJ No 1956 (SC).
²³ Greeven v. Blackomb Skiing Enterprises, 1994 CanLII 2252 (BCSC).
²⁴ Rules of Civil Procedure, R.R.O 1990. r 20.
²⁵ 2002 CanLII 7591
²⁶ Supra at note 17.
²⁷ Ibid at 17.
²⁸ 2014 SCC 7, 2014.
²⁹ Ibid at paras 2 and 28.
³⁰ 2016 ONCA 321
³¹ Ibid.
³² Trimmeliti v Blue Mountain Resorts Limited, 2015 ONSC 2301.
³³ Ibid at para 82.
³⁴ Borre v. St. Clair College of Applied Arts & Technology, 2011 ONSC 1971, 2011 CarswellOnt 2103.
³⁵Ibid at para 5.

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