October 2015

Case Commentary: Trimmeliti v. Blue Mountain Resorts Ltd.

Garett Harper
Partner

By Garett Harper

The Ontario Superior Court of Justice recently released a decision that provided additional comments on the efficacy of waivers and the development of waiver defences in Ontario. 

In Trimmeliti v. Blue Mountain Resorts Limited,¹ decided by the Honourable Mr. Justice Dunphy, the plaintiff, a season pass holder, was night skiing with friends on the defendant’s premises when he collided with a fluorescent orange mesh ribbon that was used to close a run.  As a result of this collision, the plaintiff suffered a fractured clavicle.

Evidence was advanced at trial by the defendant that prior to the plaintiff’s receipt of the season pass he executed a "Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement."  Justice Dunphy noted that the title, "…cannot have failed to put the plaintiff or anyone on inquiry as to the nature of the contractual terms that followed."² Justice Dunphy also noted that the title was presented in large, bold type and highlighted in yellow.

Contained within the title box was a statement which indicated the following:

"BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.  PLEASE READ CAREFULLY!"³

The plaintiff was required to initial a box that was placed next to this statement. Furthermore, the plaintiff provided his signature at the bottom of the waiver, beneath an additional bold typed statement which indicated:

"I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I OR MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND REPRESENTATIVES MAY HAVE AGAINST THE RELEASEES."⁴

Although the plaintiff stated that he did not read the agreement in full, Justice Dunphy held that the plaintiff could not have failed to understand what the agreement was about in a general way.  When the plaintiff provided his signature, Mr. Justice Dunphy determined that the plaintiff understood and agreed with the purpose of the document and made a choice to not inform himself further.

The existence of "fine print", which in the words of Justice Dunphy was not so much "fine print" as a loud proclamation displayed prominently on the waiver found in a bold type text box, contained a very explicit assumption of risk clause. 

In addition, the defendant had recreated the language contained within the release on the back of all lift tickets. They had also displayed the terms of the release prominently around the premises, including at the entry to each chair lift. In short, there was nothing more the defendant could have done to ensure that the plaintiff and other users of the defendant’s premises had knowledge of the conditions required to access the ski hill.

Beyond the existence of the waiver agreement, evidence was advanced regarding plaintiff’s familiarity with the defendant’s ski hill. Therefore, the court held that the plaintiff knew or ought to have known about the defendant’s requirement to complete a waiver prior to using the ski hill. 

Justice Dunphy also considered the case of Goodspeed v. Tyax Mountain Lake Resorts Ltd.⁵ in order to determine if, on the facts of this case, the waiver should not be enforced. The case of Goodspeed provided that waivers should not be enforced only in one of three situations:

1. Where there has been non est factum;
2. Where there has been a misrepresentation;
3. Where the defendant knows that the plaintiff does not intend to be bound by the form, and therefore there is a duty to bring its terms to the plaintiff’s attention.

In applying the test as set out in Goodspeed and with knowledge of the decision in Karroll v. Silver Star Mountain Resorts Ltd.⁶ which held that there was no presumed duty to bring these types of clauses to the attention of a party, the court determined the waiver was to be enforced.  As a result, the plaintiff’s case was dismissed.

Closing

The decision reached in Trimmeliti indicates that the efficacy of waivers is increased where the purpose of the waiver is clearly communicated to all parties. This can be accomplished through the use of vibrant text on the release itself as well as reproduction of the terms of the release in locations that can be readily observed by users of the premises.

Furthermore, in determining whether the terms of a waiver should be enforced; the courts will look to the parties’ familiarity with conditions for entry onto the premises. Evidence of this familiarity can therefore be crucial in the successful advancement of a waiver defence argument.

As demonstrated by the decision in Trimmeliti, when waivers are used appropriately they may operate as a complete defence to a tort claim.

¹ 2015 ONSC 2301 (Ont. S.C.J.)
² Ibid at para 66.
³ Ibid at para 67.
⁴ Ibid.
⁵ [2005] BCJ No 2515 (B.C. S.C.).
⁶ (1988) BCLR (2d) 160 (B.C. S.C.).

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