In Manson v. Mitchell, 2023 BCSC 723 (“Manson”), the British Columbia Supreme Court (the ”Court”) considered whether a single waiver form applied to a series of mountaineering expeditions following a plaintiff’s fall during his third excursion.
Mr. Manson enlisted the services of mountaineering guide, Mr. Mitchell. The pair met on June 15, 2021, to discuss Mr. Manson’s intention to embark on several climbing excursions throughout the summer. Following the meeting, the pair agreed to go on a short sport climb on June 18, 2021, to assess Mr. Manson’s climbing abilities and Mr. Mitchell’s suitability as a guide (the “First Climb”). The day before the First Climb, Mr. Mitchell emailed Mr. Manson with an attached electronic waiver form to sign, which required selecting a singular date from a drop-down menu. Mr. Manson signed the form with the “Trip Details” date listed as June 18, 2021, Mr. Mitchell reviewed it and they proceeded with their scheduled climb. A week later, the duo went on a three-day mountaineering expedition at Mt. Denman (the “Second Climb”), and then another three-day expedition at Mt. Rogers in mid-July (the “Third Climb”). On the second day of the Third Climb, both parties fell and suffered injuries.
Mr. Manson subsequently brought an action for negligence and breach of contract against Mr. Mitchell, his company Revelstoke Alpine School Inc. and the accrediting society for mountain guides, the Association of Canadian Mountain Guides (collectively, the “Defendants”). On a summary trial application, the Defendants sought a declaration that the waiver form applied to the Third Climb and provided a full defence to Mr. Manson’s claims. Mr. Manson sought a declaration that the waiver only applied to the First Climb.
The Court followed the three-part test laid out in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (“Tercon”), to assess the enforceability of a waiver:
- As a matter of ordinary contractual interpretation, does the exclusion clause apply to the circumstances established in the evidence?
- If so, was the exclusion clause unconscionable at the time the contract was made?
- If the clause is valid and applicable, should the court decline to enforce it because of an overriding public policy concern that outweighs the very strong public interest in the enforcement of contracts?
The Court held that only the first branch of the Tercon test was at issue, and turned to the ordinary rules of contractual interpretation to assess the applicability of the waiver. The Court considered the following principles:
- the overriding goal is to determine the intent of the parties and the scope of their understanding at the time the contract was made;
- the contract must be read as a whole, giving the words used their ordinary meaning, consistent with the surrounding circumstances known to the parties at the time of execution;
- surrounding circumstances are facts known, or reasonably ought to have been known, to both parties at the time of contracting;
- a party’s subjective intention is irrelevant, only the parties’ mutual intention based on objective evidence of their conduct and the surrounding circumstances is material;
- surrounding circumstances must not be used to vary, add to, subtract from or contradict the words of a written contract that has been wholly reduced to writing;
- the parties’ subsequent conduct can be assessed to resolve ambiguity, but must not be to create ambiguity where the wording of the contract is clear;
- express notice of the waiver and clarity of language as to its application is essential; and
- a waiver requires unequivocal and conscious intention to abandon rights.
The Court dismissed the Defendants’ application and granted the Plaintiff’s declaration that the waiver did not bar his claim. In doing so, the Court cited the single date referenced in the waiver, the absence of any communications between the parties about the applicability of the waiver, and the sole reference to the First Climb in the email providing the waiver. Notably, the Court held that while the parties had previously discussed various expeditions, the dates and locations of these expeditions were not confirmed at the time the waiver was signed. The location of the Third Climb was not raised as a climbing location until two weeks after the waiver form was executed. Additionally, the Court concluded that the Third Climb was a different trip in nature, activity level, duration and risk profile in comparison to the First Climb. As such, Mr. Manson had no intention to abandon his legal rights in relation to the Third Climb.
The applicability of one waiver form to various services is a common issue in insurance law. Industries such as fitness, entertainment and beauty often involve a singular waiver form signed prior to an initial class, service, treatment, or activity, followed by several additional services. As illustrated in Manson, the applicability of a waiver form to subsequent services is not always clear cut. When considering whether a waiver will apply to subsequent services, it is important to review the dates referenced, the degree of similarity between services offered, any communications regarding the scope of the waiver, and whether the future services are in contemplation at the time of formation.
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