In a recent decision, the British Columbia Supreme Court dismissed a claim brought against a ski resort by a guest who suffered catastrophic bodily injuries after going off a ski jump. The Court's dismissal upholds the general state of the law in a long line of what are commonly referred to as "ticket cases."
In Apps v Grouse Mountain Resorts Ltd, 2019 BCSC 855, released May 30, an Australian man brought a claim against Vancouver's Grouse Mountain ski resort for negligence and breach of the province's Occupiers' Liability Act, RSBC 1996 c 337 (the "OLA"). Mr. Apps suffered catastrophic bodily injuries after going off an especially large and advanced jump while snowboarding in a terrain park at night during the 2016 season. As with all ticket cases, the main question before Madam Justice Murray of the Court was whether or not Grouse Mountain had sufficiently brought the various exclusion of liability clauses to Mr. Apps' attention such that it could rely on them as a full defence to Mr. Apps' claim. This is the question arising out of the foundational Supreme Court of Canada decision in Union Steamships Ltd v Barnes,  SCR 842, where a passenger commenced an action after falling into the hatchway of a steamship and suffering bodily injuries. There, considering earlier UK case law, Locke J. held that: "the real question was whether the railway company did what was reasonably sufficient to give the plaintiff notice of the condition" (at para 31).
In the present circumstances, Justice Murray broke that issue down as follows (at para 19):
(a) Did Grouse Mountain, in all the circumstances, take sufficient steps to give reasonable notice to the plaintiff of the risks and hazards of using the jump?; and
(b) Did Grouse Mountain, in all the circumstances, take sufficient steps to give reasonable notice to the plaintiff of the waiver of the mountain's own negligence?
Occupiers' liability legislation in Canada, typically speaking, imposes on an occupier - in this case, Grouse Mountain - a duty to "take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises" (OLA at s. 3(1)). However, that duty is often circumscribed. In the case of Mr. Apps and Grouse Mountain - as with several prior cases across BC and Canada concerning ski resorts - the OLA entitled Grouse Mountain to limit or exclude the duty of care it would otherwise owe to Mr. Apps as a visitor so long as it took "reasonable steps to bring that extension, restriction, modification or exclusion to the attention of that person" (OLA at s. 4(1)).
Foundational case law cited by Justice Murray confirms the following general principles that guide the determination of whether or not the notice provided by an occupier of its intent to restrict or exclude its own liability was in fact reasonable (at para 31):
- The more onerous the exclusion clause the more explicit the notice must be;
- A waiver of an occupier's own negligence is among the most onerous of clauses;
- The form, location and architecture of the notice are factors to be considered when assessing the reasonableness or efficacy of the notice; and
- Although reasonableness of the notice is an objective test, the circumstances of the plaintiff are to be taken into consideration. This includes the plaintiff's age, level of education and previous experience with waivers of the same or similar recreational areas.
The latter-most principle proved to be determinative in Mr. Apps' claim.
Notwithstanding Justice Murray's criticisms of Grouse Mountain's warning poster - including that it was difficult to read, the relevant exclusionary language was "buried" one third of the way down, it was not highlighted or emphasised in any way, the poster was positioned away from the purchaser's point of focus, and the ticket seller had not been instructed to say anything about the exclusionary language to prospective purchasers - Justice Murray soundly relied on Mr. Apps' extensive history with dealing with similar exclusionary language at another ski resort.
Namely, at the time of the accident, Mr. Apps was an employee of and frequent visitor to the nearby Whistler Blackcomb ski resort. In the course of his employment there, he had witnessed more than 35 waiver of liability forms containing similar language as that which was at the very heart of his action against Grouse Mountain. As a user of Whistler Blackcomb's facilities, he too had been required to sign such a waiver. Mr. Apps testified in his examination for discovery that, although he had not read the exclusionary language when administering or signing such forms at Whistler Blackcomb, he was aware that the form was a release of liability and would affect his legal rights. On this basis, Justice Murray concluded (at para 55):
Mr. Apps' extensive experience with waivers of liability cannot be ignored. The fact that the waivers pertained to Whistler Blackcomb is inconsequential — it is a mountain in British Columbia a short distance from Grouse. The notices at Whistler Blackcomb look similar to the signs at Grouse and use virtually identical language. The conditions are standard for ski hills. A reasonable person would expect the mountains to have similar waivers.
At the risk of perhaps relying too much on Mr. Apps' subjective knowledge in what should otherwise be an objective test, Justice Murray also noted that the poster at Grouse Mountain that was the subject of her criticism was only one of three forms of notice on display in March, 2016. The entrance to the terrain park and the back of the pass that Mr. Apps affixed to his jacket contained nearly identical warning language advising guests of the risks they assumed by being in the park and the exclusion of liability on the part of the resort. In the result, Justice Murray found that Grouse Mountain had given reasonable notice to Mr. Apps of the risks of snowboarding and of the exclusion of its liability. Mr. Apps' claim was dismissed.