Just about anyone who has bought a ticket to ski or snowboard on a British Columbia mountain in recent years will be familiar with (literal) warning signs. They might include phrases such as “please read carefully”, “exclusion of liability”, and “your legal rights”, and can typically be found on the back of lift tickets, in equipment rental or season’s pass contracts and on large posters displayed by ticket booths.
The Occupiers Liability Act, R.S.B.C. 1996 c. 337 (“OLA”) imposes a duty on an occupier of premises to take reasonable care to ensure a person’s safety in using their premises. Mountains typically contract out of this statutory duty, as is permitted under s. 4 of the OLA, by way of the contracts they have their patrons sign or the waivers found on the back of their lift tickets. They put the warning signs up to ensure their patrons understand that anyone who buys entry to their parks assumes liability for injuries they may sustain while participating in inherently risky winter sports.
But: what if a mountain intends not only to contract out of any liability it might owe to an injured patron as an occupier, but also to contract out of any liability that may arise due to the mountain’s own negligence?
The Court of Appeal recently considered this question in Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78. Mr. Apps, an Australian, moved to Whistler to live, work, and snowboard when he was 19 years old. About four months later, in March 2016, Mr. Apps and some friends bought lift tickets to go boarding at Grouse Mountain (“Grouse”). Mr. Apps headed to the terrain park, went off an “XL” jump, and suffered catastrophic injuries that left him with quadriplegia. He subsequently brought a civil action against Grouse.
The trial judge found that Grouse had taken reasonable steps to ensure Mr. Apps knew that in purchasing the lift ticket he was agreeing to an “own negligence” clause, which was written on the back of the ticket and protected Grouse from any legal actions brought against it in negligence. The trial judge took Mr. Apps’ experience with waivers as a ski/snowboard technician at a Whistler equipment rental shop into account in reaching her conclusion. She dismissed Mr. Apps’ negligence claim against Grouse for the alleged poor design, construction, and maintenance of the “XL” jump, which he says caused his injuries.
The Court of Appeal disagreed and granted the appeal, allowing Mr. Apps to continue with his lawsuit. The issue before the Court of Appeal was not whether Grouse had sufficiently warned Mr. Apps of the risks of using the terrain park, but about the “own negligence” clause he had agreed to when buying his ticket. The appellate decision, authored by Justice Grauer, turned on the following points:
- an “own negligence” clause is a particularly onerous contractual condition and as such, the onus was on Grouse to bring the clause’s existence to Mr. Apps’ attention by “most explicit notice” (para. 83);
- it only mattered if Grouse provided reasonable notice of the clause before Apps bought the lift ticket; any subsequent signs or warnings Mr. Apps encountered on the mountain were not relevant to the analysis;
- the clause was “buried in a difficult-to-read section [of the waiver], among colons and semicolons, with no attempt to highlight it or emphasize it in any way, in a notice posted where it would be unreasonable to expect anyone to stop and read it”, that being in an inconspicuous corner of the ticket window and on the back of the lift ticket in small print (para. 65); and
- any previous experience Mr. Apps may have had with waivers at a different mountain could not be taken to satisfy Grouse’s onus to provide “most explicit notice” when contracting out of the duty of care it owed under the OLA.
Justice Grauer noted that it was “enlightening” to compare the waiver on the lift ticket to the terms of Grouse’s season’s pass contract (para. 66). The contract emphasizes the “own negligence” clause by placing it in a yellow box in all capital letters, outlining it in red, and making specific reference to the OLA. The steps taken in the contract to make the waiver clear to any reader were notably distinct from how the waiver was communicated on the lift ticket.
The matter of whether Grouse was actually negligent in its construction or maintenance of the “XL” jump is yet to be litigated, but this decision will surely have mountains and other recreational sports facilities around the province and throughout Canada carefully reviewing the steps they take to bring similar clauses to their patrons’ attention.