Insurance law – Occupiers liability – Exclusions – Notice – Duties and liabilities of insurer – Waiver – Practice – Appeals
Apps v. Grouse Mountain Resorts Ltd.,  B.C.J. No. 324, 2020 BCCA 78, British Columbia Court of Appeal, March 4, 2020, M.E. Saunders, G.J. Fitch and J.C. Grauer JJ.A.
The plaintiff appealed an order of the summary trial judge dismissing his claim against the defendant pursuant to a waiver of liability clause printed on a ski lift ticket purchased from the defendant and posted on a sign above the ticket booth.
The plaintiff snowboarder suffered a spinal cord injury after attempting an XL jump on the defendant’s ski area. The plaintiff alleged the defendant was negligent and in breach of contract and the Occupiers Liability Act, RSBC 1996, c. 337 in the design, construction, maintenance and inspection of the jump. The defendant’s position was that the waiver printed on the lift ticket and posted on a poster above the ticket booth, as well as a warning sign at the entrance to the terrain park constituted a complete defence to the plaintiff’s claim.
The summary trial judge concluded that the defendant provided reasonable notice of the risks and hazards of using the XL jump and the waiver to the plaintiff, and therefore, the waiver excluded the defendant’s liability. The Court of Appeal found the trial judge erred in law by taking into account the post-contract notice given to the plaintiff after he purchased the lift ticket and applied the wrong legal test in considering the plaintiff’s past experience with ski ticket waiver of liability clauses.
The Court of Appeal held that the warning signs at the entrance of the terrain park were relevant only to whether reasonable notice was given of the risks of the park. In the analysis before the Court of whether reasonable notice was given of the waiver, the Court of Appeal relied on the trial judge’s findings that the sign at the ticket booth was difficult to read, the waiver was buried in small print among many commas and semi-colons, and it was unrealistic to believe a person approaching the ticket booth would stop to read the waiver posted above the ticket booth. The Court of Appeal found that a waiver of an occupier’s own negligence, as in this case, was among the most onerous of clauses. The more onerous the exclusion clause the more explicit the notice must be. Applying the trial judge’s findings of how the waiver was displayed, the Court of Appeal concluded the defendant failed to provide reasonable notice of the waiver.
With respect to the issue of whether the plaintiff had actual knowledge of the waiver given his previous experience, the Court found the plaintiff’s experience signing a season pass agreement and witnessing the signatures of customers for waivers at another ski mountain as an employee did not constitute knowledge of the waiver relied on by the defendant. The Court concluded the plaintiff did not have actual knowledge of the waiver because he did not read it and did not understand that its inclusion was standard.
The appeal was allowed and the summary dismissal of the claim was set aside.
This case was digested by Dominic Wan, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Dominic Wan at email@example.com.
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