In summertime, mountaineering in the wilderness is the delight of everyone.1
Accidents happen, of course. People get hurt. When they do, organizations and professionals offering services in the tourism, recreation, and sporting industries rely on waivers of liability to control the risk of litigation and claims.
Canadian Courts generally uphold and enforce such waivers. But, as the BC Court of Appeal recently confirmed in Mitchell v. Manson, 2024 BCCA 142 ("Manson"), the person seeking to enforce such waivers must be careful to prepare and execute such waivers so that they clearly apply to the specific dates and activities undertaken.
Waivers and Releases of Liability
Canadian courts will enforce waivers of liability where (1) the waiver applies to the situation at hand, (2) the waiver is not unconscionable at the time it was signed, and (3) the values behind the enforcement of the waiver (autonomy, freedom of contract) are not outweighed by some other valid public policy interest.2 The first question—whether the waiver applies at all—can be the most contentious. If the waiver does not apply as a matter of contractual interpretation, the plaintiff is free to sue. The question is whether the parties, through their written contract, intended to cover the activity which caused the injury to the plaintiff. That was the issue that was before the courts in Manson.
Background
The defendant in the Manson case, Jeffrey Mitchell, was an experienced mountain guide who ran his own guiding business. The plaintiff, Ian Manson, was an avid outdoorsman (the "Plaintiff"). In the summer of 2021, the Plaintiff hired Mitchell to provide guide services for a series of rock-climbing expeditions.
Their first expedition was a 'get to know each other' trip on June 18, 2021. Prior to that expedition, Mitchell asked Manson to sign a waiver of liability (the "Waiver"). In the Waiver, Manson agreed to waive any claims against Mitchell, his company, and the Association of Canadian Mountain Guides (collectively, the "Defendants").
On the morning of June 17, 2021, the Plaintiff completed the Waiver online. The online template set out the terms of the release and waiver of liability. The Plaintiff was required to fill in his name, telephone number, date of birth, medical information, address, email address, and emergency contact. The last space to be filled in was entitled "Trip Details." It offered only a limited drop-down menu for "Trip Date." The Plaintiff selected the date scheduled for the rock climb, being "June 18, 2021." It was not possible to enter any additional information or select more than one date. The June 18, 2021 trip occurred without incident.
From June 25-27, 2021, the parties went on a second, longer expedition to Mt. Denman. In July 2021, the parties went on a third expedition to Mt. Rogers. The Defendants did not ask, and the Plaintiff did not sign, a further liability waiver for the Mt. Denman or Mt. Rogers expeditions.
On July 15, 2021, during the Mt. Rogers expedition, both men were injured. The Plaintiff sued, claiming damages for his injuries. The Defendants raised the Waiver as a complete defence and brought a summary trial seeking its enforcement.
The BC Supreme Court Decision
The BC Supreme Court refused to enforce the Waiver. The Supreme Court judge found that the Waiver had no application to the Mt. Rogers expedition, and declined to imply a term into the Waiver or to rectify it such that it would apply. In her view, the Waiver expressly applied only to the June 18, 2021 climb based on its text read and in light of the context known to each party at the time they entered the contract (Waiver). At the time Manson signed the Waiver, the parties had not confirmed any other expeditions, and the Mt. Rogers expedition had not yet been discussed. Further, there was no mention in any written communication of any kind of ongoing "summer climbing program or the like" at the time or before the Waiver was signed. Finally, Mitchell's communication forwarding the link to the Waiver discussed only the June 18, 2021 climb.
Accordingly, the BC Supreme Court found that the Waiver did not apply to the expedition where the Plaintiff was injured. He was free to continue his action for damages.
The Defendants appealed.
The BC Court of Appeal Decision
The Defendants argued on appeal that the Supreme Court judge failed to apply the right test when interpreting the Waiver. They asserted that the judge failed to read the text of the Waiver as a whole and in light of its surrounding circumstances. The Defendants contended that because the Plaintiff almost certainly would have signed a waiver for the Mt. Rogers expedition, or indeed for the entire summer, it must be inferred that he intended the Waiver to have that application. They further asserted that the judge should have found the Waiver ambiguous so she could take into account subsequent conduct and that it was commercially unreasonable to interpret the Waiver so as to not include the subsequent expeditions. Finally, the Defendants said the judge should have rectified the Waiver to broaden its scope to cover the subsequent expeditions.
The Court of Appeal rejected each of these arguments and upheld the Supreme Court decision. It agreed with the judge's conclusion that the mutual objective intention of the parties, as stated in the Waiver, interpreted in the context of the surrounding circumstances, was that the Waiver was limited in its application to the climb of June 18, 2021.
The Court of Appeal found that the Defendants were effectively seeking to supplant their subjective understanding of what the Waiver ought to have covered—all the expeditions, including the Mt. Rogers expedition—rather than what the Waiver actually said and what the surrounding circumstances demonstrated objectively. These both pointed to the Waiver covering only the June 18, 2021 climb. The Court specifically rejected their argument that the Plaintiff would have signed a waiver for the Mt. Rogers expedition or for all summer climbs if asked. That got the analysis exactly backwards: "It is not what Mr. Manson might have been prepared to agree to that matters. What counts is what he did in fact agree to when he signed the Waiver."
The Court of Appeal also rejected the thesis that the Waiver was ambiguous. In their view, there was only one reasonable interpretation: the Waiver covered the June 18, 2021 climb only. The Court further declined to rectify the Waiver to expand its scope to cover the Mt. Rogers expedition.
Digital Waivers: A Cautionary Tale
Manson is a cautionary tale for using waivers of liability, particularly digital and online waivers. While convenient, these can fail to provide appropriate protection, if they are not designed with care. Drafting them correctly is critical.
First and most obviously, it is essential to define the temporal scope (time frame) of the waiver correctly. Businesses relying on waivers should ensure the time and date of the waiver overlap with the activities undertaken. Other contractual text may also be used to add layers of certainty as well. For example, contractual terms may be placed in waivers confirming that the waiver covers all activities and services provided by the business regardless of the date they are undertaken.
Second, online systems for the presentation and execution of waivers should control the waiver's scope. Leaving it to the customer to fill out the applicable date and scope (i.e., activities covered by the waiver) opens up a business to risk, as this case aptly shows.
Finally, a new waiver should be signed each time a new activity is undertaken (if not previously covered).
In sum, Canadian businesses should invest in systems to confirm the scope and application of their digital waivers of liability to ensure that they are upheld. The modest cost of prevention and foresight pays obvious dividends in controlling the risks of litigation and civil liability.
Footnotes
1. Miller v. Jackson, [1977] 1 Q.B. 966 (C.A.), at p. 976, per Lord Denning M.R. ("In summertime village cricket is the delight of everyone."); Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 1, per Brown J. ("In wintertime ice hockey is the delight of everyone.")
2. Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 at paras. 121-123; Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122; Niedermeyer v. Charlton, 2014 BCCA 165. (Note that waivers or releases of liability against minors are generally are not enforced, even where the minor's parents sign those releases or waivers: Wong v. Lok's Martial Arts Centre Inc., 2009 BCSC 1385)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.