BC Court of Appeal on Exclusion of Liability

The case of Apps v Grouse Mountain Resorts Ltd, 2020 BCCA 78 (“Apps v Grouse“), came out earlier this year and it involved a snowboarder and a ski resort. Can you guess the rather unfortunate facts of this case?

Mr. Apps, a young snowboarder suffered an unfortunate accident on Grouse Mountain’s Terrain Park and sues for damages. The trial judge ruled that Mr. App was bound by the terms of the waiver that was printed on the back of his lift ticket and was bound by the warning signs that were planted on the Terrain Park. Mr. Apps then appealed the decision to the Court of Appeal, where his appeal was allowed.

The Court of Appeal phrased the issue as follows

“[3]             Mr. Apps’ appeal raises an issue that has troubled the courts ever since the Industrial Revolution: under what circumstances is such a waiver in a contract of adhesion (where the consumer must take it or leave it) binding on the consumer?  This has been of particular concern where the waiver includes words excluding liability for the service provider’s own negligence and failures (an “own negligence” clause).”

It is important to know that a contract of adhesion or an adhesion contract is a contract that is prepared by one party, unilaterally. Anyone else who wants to become a party to that contract, does not usually have the power to negotiate the terms and must “take it as is or leave it.” For example, the Terms of Use agreements that we all sign on the Internet are considered adhesion contracts. It has been a common law rule since 1800’s that if an adhesion contract includes a waiver, timely and sufficient notice of the waiver is a must.

The following matters were discussed in the decision and are of importance:

  1. Timing of the notice: The notice has to be given prior to the the other party entering into the adhesion contract.
  2. Adequacy of the notice: The notice has to be both timely and adequate. Adequacy may be found in legislation or common law, and depends on the onus the waiver puts on the parties and the industry.
  3. The waiver clause must be noticeable: This means it must be easy to spot when someone is reading the contract. Maybe written in larger font, in bold and/or underlined.
  4. The notice must be specific: This means that the notice must focus the attention on the waiver clause. It has to distinguish the waiver clause from the rest of the contract. For example, writing “Important” on top of the contract, does not satisfy the notice requirement. You have to be specific. What is important? What do you want the reader to notice?
  5. Make the contract easy to read: The contract and the waiver clause specifically, must be easy to read and easy to understand. If the clause if full of legal jargons, how do you expect a lay-man to understand?

This case reminded me of the time I broke my wrist snowboarding. I wonder if I could have been successful had I sued the mountain. The limitation period has not passed on this, maybe I should try my luck?!

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