Release of Liability Found to Be Enforceable

Release of Liability Found to Be Enforceable

High-risk activities are a staple of recreation in British Columbia; sports such as heli-skiing and rock climbing are naturally suited to the province’s vast and diverse wilderness. Extreme sports activities can also be very profitable, and there are countless companies which seek to profit from people’s desire to get out and enjoy the outdoors.

With the popularity of  these high-risk activities it might seem like there is a high probability of personal injury suits against sports or recreation businesses being advanced once something inevitably goes wrong. However, the companies themselves are more than aware of this risk, and require liability waivers to be signed before customers set off in pursuit of adventure. The Supreme Court of B.C. recently addressed the question of how meaningful the signing of a release before engaging in a high-risk activity is when the company at issue is negligent.

The case of LOYCHUK V. COUGAR MOUNTAIN ADVENTURES LTD., 2011 BCSC 193 (“LOYCHUK”), released on February 17, 2011, dealt with a zip-lining accident in Whistler where injuries were suffered due to the failure of a company employee to ensure that the zip-line was free of people before sending a new participant down. The only thing preventing a personal injury suit against the company operating the zip-line was the waiver form signed in advance by all who took part in the activity.

The Court in LOYCHUK dispensed with three separate arguments by the Plaintiffs before confirming that the waiver precluded any personal injury action. The first argument was founded on “misrepresentation by omission”, in that the terms of the release were not explicitly made clear to the Plaintiffs. The Defendants relied on KARROLL V. SILVER STAR MOUNTAIN RESORTS LTD. (1988), 33 B.C.L.R. (2d) 160 (S.C.) (“KARROLL”) for the proposition that the signed release was a complete defence to all actions. In KARROLL, McLachlin C.J.S.C. (as she then was) held that “an obligation on the party tendering the document for signature to take reasonable steps to apprise the party signing of onerous terms only arises in circumstances that a reasonable person should have known that the party signing was not consenting to the terms” (LOYCHUK, para. 28). The Court in LOYCHUK rejected the Plaintiffs’ argument that the reasoning in KARROLL should be limited to situations where “the participant has some measure of control” (at para. 33) when a “dangerous activity” is at issue. In addition to rejecting the latter argument, the Court held that the Plaintiffs had enough time to read the release and understood that they were waiving their legal right to sue in certain circumstances. The Court found that a reasonable person in the position of the Defendants “would not have known that the Plaintiffs were not consenting to the terms of the Release” (at para. 34).

The Court went on to hold that the release was not unconscionable merely because it related to a hazardous activity, and rejected an argument that the release was void under the BUSINESS PRACTICES AND CONSUMER PROTECTION ACT, S.B.C. 2004, c. 2. In addition, despite the fact that the waiver was signed after payment for the zip-line experience was made and the Plaintiffs argued that no “new consideration” was given for the release, the Court found that “the Release itself specifically sets out that the consideration for the Release is Cougar’s agreement to allow the Plaintiffs to Participate in Eco Activities” (at para. 49).

In light of the above findings, the Court found that the release was valid and enforceable, and that despite the injuries suffered as a result of the zip-line company’s negligence, no personal injury action would be permitted. This finding illustrates how signing a release of liability form should be given careful consideration when engaging in risky activities, as it can be very difficult to set aside such a waiver, even in the event of negligence.

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