Thrill Seekers Are Bound By Releases When Things Go Wrong

Posted by Peter Roberts on March 20, 2012

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.

The Enforceability of Standard Form Waivers - Do I Really Have to Sign This?

Posted by Ron Skolrood on November 16, 2011

Anyone who has ever participated in a recreational or sporting activity, whether offered by a community organization or commercial operator, will be familiar with the types of release and waiver forms invariably required to be signed as a condition of participation.  Such forms typically purport to release the operator from liability for any and all injuries or other misfortunes that might befall the participant, even if due to the negligence of the operator.  Most of us simply sign the forms so that we can participate in the activity although some (particularly if they happen to be lawyers) may occasionally wonder about the extent to which the forms are in fact binding and enforceable.

The BC Supreme Court examined this question in two recent decisions.  In Arndt v. The Ruskin Slo Pitch Association, 2011 BCSC 1530 the court considered a claim by the Plaintiff, Ms. Arndt, who was injured when she stepped in a hole in the outfield while playing in a softball game organized by the Defendant Association.  In defence to the claim, the Association sought to rely on a waiver signed by the Plaintiff at the commencement of the season. 

Unfortunately for the Association (and fortunately for the Plaintiff) the Court found that the waiver was not sufficient to preclude the Plaintiff’s claim.  The Court held that the form was deficient in two principal ways.  First, the waiver was included in a larger document which functioned as the official team roster form that had to be signed by each participating player.  It was not obvious to the Plaintiff that she was in fact signing a waiver and release and no one from the Association or her team pointed that out to her.  Second, the language of the waiver itself fell short.  On its face, it simply required that the coach and manager of each team advise the players that they were fully responsible for any damages incurred by them but it did not in fact require each player to personally waive liability as against the Association.

Continue Reading