The B.C. Court of Appeal recently upheld, and arguably extended, the enforceability of liability waivers and releases signed by customers of commercial enterprises. The decision, Loychuk v. Cougar Mountain Adventures Ltd., is a strong affirmation that participants in inherently risky recreational adventures who sign releases will not be able to sue if they are injured, even where the injury was solely as a result of the negligence of the operator.
In Loychuk, two women were zip lining in Whistler and were injured when they collided. Ms. Loychuk had become stuck part way down and, as a result solely of miscommunication by the operators, Ms Westgeest was sent down the same line and collided with Ms. Loychuk. They sued the operator. However, both had signed a release prior to, and as a condition of, taking part in the zip-lining. The operator admitted negligence but sought dismissal of the case relying on the terms of the releases. The trial court dismissed the claim and the Court of appeal upheld the decision.
In doing so, the Court of Appeal reviewed the judicial history of releases and waivers in the context of inherently dangerous activities such as skiing, white-water rafting and ski-doing. In seeking to distinguish their claim from earlier decisions, the plaintiffs argued that in the case of zip-lining, all the risk in the activity was controlled by the operator. The participants could not be contributorily liable. If there ever was such a distinction, the Court of Appeal has erased it. The court reasoned that releases are not contrary to public policy, even where the activity in issue is controlled completely by the operator. If the law is to change for such activities, it is for the Legislature to do, not the courts.
The court also addressed the argument that the participants had no meaningful ability to negotiate the release terms. The operator simply presented what was effectively a contract of adhesion. In dismissing this submission, the court noted that there is no power imbalance where a person wishes to engage in inherently risky recreational activity that is controlled or operated by another. It is not unfair for an operator to require a release or waiver as a condition of participating. If a person does not want to participate on that basis, he or she is free not to engage in the activity.
That is not to say that adventure companies will always escape liability. Liability can be established where it can be shown that the party seeking to rely on an exclusion clause knew it was putting the public in danger by providing a substandard product or service, or was reckless as to whether it was doing so. In other words, that party engaged in conduct that is so reprehensible that it would be contrary to the public interest to allow it to avoid liability. In such cases, any release signed will not protect the operator.
The court also considered whether waivers or releases were “unconscionable” and in contravention of the Business Practices and Consumer Protection Act (“BPCPA”). The court found the test for unconscionability under the BPCPA was the same as the test at common law. The court also noted that under the BPCPA, proof of unconscionability was only one of a number of enumerated factors that must be proven before a consumer transaction could be set aside. In any event, the requirement to sign the waiver in order to go zip-lining was not unconscionable. There was nothing in the conduct or advertising of the zip-line operator that misled its customers.
For those wishing to partake in dangerous adventures offered by commercial operators, this decision is a warning that you must truly appreciate the potential risks before taking part. This includes the possibility of the operator’s negligence. If you are injured, the courts are unlikely to provide you with any recovery.