Owners and operators of recreational sports facilities, including ski resorts, rely on liability waivers as a defence to personal injury claims. Many waivers specifically exclude liability for the facilities’ own negligence. In Apps v Grouse Mountain Resorts, the British Columbia Court of Appeal clarified the test for enforcing such clauses. Apps reinforces the important distinction between “ticket cases” (where the exclusion of liability is posted or printed on the ticket but the participant does not sign anything) and signed waiver cases (where the participant is actually handed a document to sign).
Facts and Background
Mr. Apps, a 20-year-old snowboarder from Australia, suffered catastrophic injuries while attempting an advanced jump at Grouse Mountain Resorts Terrain Park.[1] Mr. Apps brought an action against Grouse Mountain for damages, alleging negligence, breach of contract, breach of the Occupiers’ Liability Act, and breach of the Business Practices and Consumer Protection Act.[2]
Grouse Mountain brought a motion for summary judgment on the basis that the exclusion of liability in its waiver was a full defence to the claim. The exclusion of liability was posted on a sign above the ticket booth at the premises, where Mr. Apps purchased his lift ticket. The exclusion of liability was also printed on the back of the lift ticket itself.[3] However, Mr. Apps was not asked to sign any document to specifically agree to the exclusion of liability.
At first instance, the British Columbia Supreme Court motion judge found for Grouse Mountain and dismissed Mr. Apps’ claim. Murray J. found that Grouse Mountain took reasonable steps to inform Mr. Apps of the risks and hazards of the activity, the exclusion of liability, and the “own negligence” clause.[4] Murray J. considered Mr. Apps’ previous experience with liability waivers as being relevant to the analysis.
The British Columbia Court of Appeal overturned the decision and reinstated the action.
British Columbia Court of Appeal
On appeal, the Court found that Mr. Apps was not bound by the exclusion, particularly in light of the onerous exclusion of liability in relation to Grouse Mountain’s own negligence. The common law of contract and British Columbia’s Occupiers Liability Act required Grouse Mountain to take “reasonable steps” to bring the exclusion of liability to the attention of Mr. Apps, and the court was not satisfied by the steps Grouse Mountain had taken. The court held that there was an onus on Grouse Mountain to specifically highlight the “own negligence” clause, as such an exclusion would not be within the reasonable contemplation of the ordinary person.
The Court of Appeal explained that in ticket cases, where a waiver is not signed, boilerplate waiver language is not sufficient to put a ticket holder on notice of its terms. The question is whether reasonable steps were taken to bring the exclusion terms to the participant’s attention, and this is assessed on an objective basis in light of the factual circumstances. Ticket cases are more complex than signed waiver cases, where there is a general presumption that the participant is bound by his or her signature. Indeed, in signed waiver cases, “the occupier goes a long way to satisfying the reasonable steps requirement by requiring consumers to take the contracts in hand and sign them, thereby directly confronting the own negligence clause.”[5]
The Court of Appeal also found that the motion judge erred by considering signage Mr. Apps would only have seen after he had purchased his lift ticket and started snowboarding. If this signage had not been considered, the motion judge would have been left with a ticket booth sign that was difficult to read and an “own negligence” clause that was not highlighted or emphasized in any way. The Court of Appeal found that it was “unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign.”[6]
Finally, the Court of Appeal held that the motion judge erred by placing undue weight on Mr. Apps’ previous experience with liability waivers in the recreational sports context. The Court of Appeal held, that the question is whether Mr. Apps had actual knowledge of Grouse Mountain’s specific waiver terms.[7] The evidence was that Mr. Apps had never dealt with Grouse Mountain or its liability waiver. Accordingly, his previous experience with waivers was not relevant.
Takeaways
- In a ticket case, where the participant does not sign off on the waiver terms, there is no presumption that the participant intended to be bound by the waiver. There is a higher onus in ticket cases to bring the exclusion terms to the participant’s attention.
- An exclusion of liability that includes the defendant’s own negligence is an onerous clause and must be specifically highlighted and emphasized – e.g., with bolding, capital letters, colours, or other formatting.
- It is of limited relevance that the occupier made efforts to notify the participant of the waiver terms after the consumer transaction has already been completed.
- It is of limited relevance that the participant has previous experience with liability waivers in a different context or at a different premises.
[1] Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 at para 24.
[2] Ibid, at para 23.
[3] Ibid, at para 2.
[4] Ibid, at para 32.
[5] Ibid, at para. 80
[6] Ibid, at para 59.
[7] Ibid, at paras 73-74, 84.
