The British Columbia Court of Appeal recently upheld a lower
court decision that two customers who signed waivers before
embarking on a Zip-Trekking outing were prevented from suing Cougar
Mountain Adventures Ltd. for serious personal injuries. Evidence
suggested that "miscommunication between the guides was the
sole cause of the accident."
Cougar Mountain Adventure operates a Zipline and a promotional
website that describes the activities' infrastructure noting
that a waiver has to be signed by participants. To take part in the
Zip Trek activity the Plaintiffs were both required to sign the one
page waiver that stated partly in capital letters, "by signing
this document you will waive certain legal rights, including the
right to sue or claim compensation following an accident." The
Plaintiffs "filled in the required information and signed at
both the top and bottom of the form." The release included an
assumption of risks, a release of liability, waiver of claims and
an indemnity agreement (the "Waiver"). The accident
occurred when Cougar Mountain Adventures negligently sent one of
the Plaintiffs down the zip line before the other Plaintiff was
safely out of the way, causing a midline collision. Other than the
existence of a waiver of liability, there was no defence to the
claim.
The trial judge found that the two Plaintiffs were bound by the
signed Waiver and had no claim against Cougar Mountain Adventure.
The Plaintiffs attempted to advance an argument that the Waiver was
unenforceable, unconscionable and invalidated by the Business
Practices and Consumer Protection Act. The Trial Judge
rejected those arguments and found that:
the Participants signed the release knowing that it was a legal
document affecting their rights;
Cougar Mountain Adventures had taken steps to bring the
contents of the release to their attention and they had sufficient
time to read it;
there was "no evidence of duress, coercion or unfair
advantage resulting from economic or psychological need," that
would make the release unconscionable. The release coupled with the
statements on the website regarding risks led to the conclusion
that they had not been taken unfair advantage of;
without determining the applicability of the Business
Practices and Consumer Protection Act, that there was no
evidence that the representations on Cougar's website on the
structure of the system were untrue and further it did not relate
to the zip lines operation rather to its infrastructure; and
that the Plaintiffs were aware that their participation in the
activity was contingent on signing a waiver, and thus the waiver
did not fail for lack of consideration.
The Plaintiffs appealed the dismissal of their claims to the
Court of Appeal. In addressing the various grounds of appeal
advanced by the Plaintiffs, the Court of Appeal made it very plain
that it was fully prepared to uphold the Waiver, even when the
injuries caused were significant. The Waiver was neither
unconscionable nor should be overturned on public policy
grounds.
Simply stated, the Court of Appeal decision recognizes that
people are free to take part in risky activities but, if they
choose to do so and sign a waiver, they are most likely stuck with
their bargain. In the words of the court, "it is not
unconscionable for the operator of a recreational-sports facility
to require a person who wishes to engage in activities to sign a
release that bars all claims for negligence against the operation
and its employees. If a person does not want to participate on that
basis, then he or she is free not to engage in the activity."
The fact that the activities were found to be "inherently
risky recreational activities" was not sufficient reason to
make the waiver unenforceable. The Court applied the Supreme Court
of Canada's recent decision in Tercon Contractors Ltd. v.
British Columbia (Transportation and Highways) and that
Court's analytical approach to unconscionability of limitation
of liability clauses.
The other grounds of appeal such as Cougar Mountain
Adventure's website being "deceptive advertising" and
a lack of consideration for the signing of the waiver were also
considered and rejected by the Court of Appeal.
The lesson for companies using liability waivers in their
contracts is that when properly drafted and clearly brought to the
attention of the party giving up their rights of civil action, the
courts will uphold and enforce such waivers, even in the face of
significant injuries or other harm caused by negligent conduct to
the innocent party.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
In Bondy v. London (City), the Court considered whether the City of London and/or a homeowner were liable for a slip and fall accident that occurred on the paved portion of a municipal boulevard that formed part of a residential driveway running from the municipal sidewalk to the roadway.
Amato v. Welsh, 2013 ONCA 258 marks an interesting development in the law – it suggests the previously inviolable doctrine of absolute privilege which protects lawyers from suit may admit an exception.
As the current trend to self-representation increases, regardless the reason, one must ask if the tradition of lawyers appearing before Courts, above the Ontario Court of Justice, ought to continue the traditional legal wearing of robes.
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