“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.

In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs.  The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000.  The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future.  In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:

[50]         To answer whether I should deduct the amounts, I must turn to the sworn evidence of the ICBC claims specialist. As stated in Norris at para. 35: “The Court will not presume that the future conduct of ICBC will be other than honourable.” However, Riley J. in Sangha stated that this Court must independently assess the affidavit evidence from the ICBC specialist. Even where an affidavit “irrevocably, unequivocally, and unconditionally” agrees to reimburse the plaintiff for the future benefits, I must analyze this commitment to ensure it is in compliance with the Act and Regulation: Schmitt; Sangha. In Sangha, this Court did not accept the ICBC specialist’s evidence that ICBC would “irrevocably, unequivocally, and unconditionally” pay for certain benefits in the future.

[51]         Ms. Uppal deposed that ICBC accepts this Court’s Judgment regarding Ms. Luck’s treatment needs following the motor vehicle accident. Ms. Uppal deposed that ICBC will “irrevocably, unequivocally, and unconditionally agree to pay, under Part 7” the cost of the future care amounts specified in the Judgment,[2] “up to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of the Regulation”.

[52]         Despite the above statement, I have concerns with the affidavit evidence because Ms. Uppal does not waive the need for continued medical certification in the Regulation. For example, mandatory and discretionary benefits are limited to the amounts set out in Schedule 3.1 of the Regulation. Ms. Uppal refers to this limitation in paragraph 15 of her affidavit:

  1. I am authorized on behalf of ICBC to advise that ICBC will irrevocably, unequivocally, and unconditionally agree to pay, under Part 7, for the following itemsup to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of theRegulation, as incurred and submitted to ICBC by the Plaintiff for reimbursement, up to the amounts indicated in the table below… [Emphasis added.]

[53]         Further, Ms. Uppal did not address the s. 88(1.01) treatments, over and above the number of mandatory pre-authorized treatments, that are provided more than 12 weeks after the date of the accident. Ms. Uppal did not refer to waiving the need for continued medical certification.  The affidavits relied upon in Sangha and Wark both waived the need for future medical certification and referred to s. 88(1.01).

[54]         Importantly, Ms. Uppal testified that if there is any uncertainty as to what, if any, Part 7 benefits may be payable to the plaintiff she would look to the Act and Regulation. This statement was not qualified by any reference to her affidavit. 

[55]         The plaintiff points out that funding for a pain management clinic is not provided for as a treatment modality under Part 7 and is not provided for in Schedule 3.1. The defendants argue ICBC will fund the clinical counselling aspect of the pain management treatment. Even accepting this argument, the counselling would take place more than 12 weeks after the accident. It is therefore a discretionary benefit and suffers from the same problem articulated above.

[56]         The defendants bear the onus to prove entitlement to ongoing benefits. Any uncertainty must be resolved in favour of the plaintiff. To prove ongoing reimbursement for benefits, the defendants’ evidence must use precise language. Ms. Uppal’s evidence was not sufficiently precise, especially when combined with her testimony. I adopt Riley J.’s comments in Sangha:

[20(a)] …Thus, while Ms. Sit says ICBC will “irrevocably, unequivocally, and unconditionally” agree to pay all of Ms. Sangha’s previously incurred expenses under as Part 7 benefits, I foresee some difficulty in Ms. Sangha obtaining reimbursement. This is not a criticism of Ms. Sit’s integrity as a duly authorized ICBC representative, but rather a recognition that an insured person may encounter resistance in obtaining benefits where there is apparent inconsistency between ICBC’s presently-stated position and the requirements set out in the Regulations. The ambiguity on this particular point must be resolved in Ms. Sangha’s favour. I would not deduct this amount.

[57]         Based on the above reasoning, Ms. Uppal’s affidavit and testimony do not satisfy me that ICBC has waived the requirements in s. 88(1.01) of the Regulation and the need for ongoing medical certification. Uncertainty persists with respect to these discretionary benefits. I am not satisfied Ms. Uppal’s commitment, especially when viewed in light of her qualifications in oral testimony, overcomes the ongoing conditions in the Regulation.

[58]         The deficiencies in the evidence create uncertainties regarding the future payment of benefits. Any uncertainties must be resolved in favour of Ms. Luck. I am therefore unable to deduct the full $65,000 from the Judgment to avoid double recovery.

[59]         I will deduct an amount from the Judgment based on the benefits for which Ms. Luck can, with certainty, be reimbursed.

bc injury law, Luck v. Shack, Madam Justice MacDonald, Section 83 Insurance (Vehicle) Act

CRT Assesses Damages for “Relatively Minor” Injury at Only $1,500

The guest post is written by ERIK MAGRAKEN

Reasons for judgement were published this week by BC’s Civil Resolution Tribunal (“CRT”) addressing fault and damages following a collision.  In what is one of the lowest assessments of non-pecuniary damages I have seen the CRT awarded $1,500 for injuries which lasted several months.

In today’s case (Thandi v. Uggal) the Applicant was involved in a 2019 collision.  The Respondent denied fault but was found liable for the crash.

The Applicant, who was self represented, gave evidence that he suffered various soft tissue injuries.  These required 3 physiotherapy sessions and two doctors visits.  The Applicant did not bring medico-legal evidence in support of his claim.

Tribunal Member Kristin Gardner accepted he was injured but awarded non-pecuniary damages at only $1,500.  In doing so the Member cited a BC Provincial Court authority from 14 years ago, took the lowest end of the suggested range of applicable damages and did not adjust it for inflation.  In reaching this assessment the following reasons were given:

35.   Mr. Thandi submits that he suffered injuries to his neck, shoulder and upper back as a result of the accident.

36.   Mr. Thandi claims $5,500 for pain and suffering. This figure is the applicable cap for a “minor injury” as defined in the Insurance (Vehicle) Act (IVA). The parties did not expressly agree whether Mr. Thandi’s injuries are “minor injuries” as defined in section 101 of the IVA. However, given Mr. Thandi’s claim does not exceed the applicable “minor injury cap”, I find that I do not need to determine whether the injuries are in fact “minor injuries”.

37.   Mr. Thandi says that due to the Covid-19 pandemic he was unable to obtain his doctor’s records to support his claim. However, I note that Mr. Thandi did not request an extension of these CRT proceedings so that he could obtain this evidence. It is undisputed that Mr. Thandi attended 3 physiotherapy treatments and 2 visits to his doctor, with his last treatment in November 2019. Mr. Uggal submits that there is insufficient documentation to properly evaluate Mr. Thandi’s claim for pain and suffering. However, Mr. Uggal does not dispute that Mr. Thandi sustained injuries from the accident.

38.   In Holt v. Hertzberg, 2006 BCPC 228 at paragraph 27, the court noted after reviewing the authorities, that non-pecuniary damages for relatively minor soft tissue injuries that resolve within a matter of months are often assessed in the range of $1,500 to $7,500, depending on the facts of the case. Given the limited evidence about Mr. Thandi’s injuries, on a judgment basis, I find that $1,500 is appropriate compensation for non-pecuniary (pain and suffering) damages.

minor soft tissue injury, Thandi v. Uggal, Tribunal Member Kristin Gardner

 

‘Always new expenses:’ Lawsuits filed as anniversary of Broncos bus crash nears

By Stephanie Taylor and Bill Graveland

THE CANADIAN PRESS

It’s been almost two years since the deadly Humboldt Broncos bus crash in Saskatchewan and with the solemn anniversary comes a closing legal window that has seen several lawsuits filed in court.

Sixteen people died and 13 others were injured after a transport truck barrelled through a stop sign and into the path of the bus carrying the junior hockey team on April 6, 2018.

The inexperienced driver of the truck, Jaskirat Singh Sidhu of Calgary, was sentenced to eight years in prison.

A proposed class-action lawsuit was filed Friday in Regina Court of Queen’s Bench against Sidhu and his former employer. It also lists the governments of Saskatchewan and Alberta, as well as the federal government.

“The people wanting to go forward aren’t motivated financially so much as these were wrongs by governments,” said lawyer Tony Merchant. He pointed to the trucking industry as a major concern.

Carol and Lyle Brons are listed as the plaintiffs. Their 24-year-old daughter, Dayna, was the team’s athletic therapist and was killed in the crash.

Also listed are all the others who were on the bus, their families, all hockey team staff, billet families and first responders who treated the victims.

At least one family has said it has asked to be removed from the class action, which still needs to be certified by the courts.

Several other lawsuits have also been filed.

Russ and Raelene Herold of Montmartre, Sask., were among the first of the families to file a few months after the collision. They are suing the truck driver, the Calgary-based company that employed him and the bus manufacturer. The lawsuit asks for damages and a court order that all buses carrying sports teams in Saskatchewan be equipped with seatbelts.

The couple’s son, 16-year-old Adam, was the youngest player on the team to be killed.

Their suit has since been joined by the families of three players and an assistant coach who died: Jaxon Joseph, 20, of St. Albert, Alta.; Logan Hunter, 18, also of St. Albert; Jacob Leicht, 19, of Humboldt; and Mark Cross, 27, from Strasbourg, Sask.

No statement of defence has been filed in that lawsuit.

Injured Broncos player Derek Patter, 21, of Edmonton, filed in March against the truck driver and the trucking company. The Alberta government joined as a plaintiff to recoup health-care costs.

Kevin Matechuk of Colonsay, Sask., said his family would also be filing a lawsuit against the trucker and trucking company on behalf of his son Layne, 20, who is still recovering from a traumatic brain injury.

“He will need special care. We don’t know if he will ever be able to live on his own. We’re hoping so. It’s still our hope and dream.”

It’s the same situation for Ryan Straschnitzki, 20, of Airdrie, Alta., who was paralyzed from the chest down. His suit also takes on the Alberta and Saskatchewan governments, as well as the team’s bus driver.

“There’s always new expenses and he’s going to have to be taken care of for the rest of his life,” said his mother, Michelle Straschnitzki.

“We won’t always be here. And people don’t understand … long-term care for people who are in wheelchairs _ the cost is astronomical.”

The Straschnitzkis said they’ve received hateful comments and death threats since their lawsuit was reported in the news last week.

“Ryan never got millions from the GoFundMe like a bunch of these dummies are saying,” said his father Tom Straschnitzki.

A GoFundMe campaign, which raised more than $15 million, paid out $525,000 to each of the families who lost a loved one and $475,000 to each injured player.

Some families have said they plan to give away through charities some of the money they received from donations.

“It’s not our plan to sue,” said Toby Boulet, whose 21-year-old son, Logan, was killed.

The Lethbridge family has used money received to set up a fund for causes that were important to their son, including organ donation.

The Adam Herold Legacy Foundation is a charity that gives Saskatchewan youth a chance to develop their hockey skills and leadership potential.

Others, including Evan Thomas’s family of Saskatoon, have given back through memorial scholarships and other donations.

Evan’s father, Scott Thomas, said the family decided against legal action.

“We just don’t feel its part of something we want to be a part of,” he said.

Thomas said it might have been different if his son had lived.  “I know a lot of people think insurance is going to take care of them, but it’s not.”

At least one injured player doesn’t want anything to do with a lawsuit.

Myles Shumlanski of Tisdale, Sask., said his 22-year-old son Nick just “wants to move on.” He was the only one on the bus able who walked away without serious injuries.

“We’re going to put in for a little bit of insurance,” said his father.

“He doesn’t even feel comfortable doing that.”

Court Criticizes ICBC “Failure” To Pay For Necessary Treatments

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

[13]         It is concerning to the court that the representative of ICBC, Andrew Rudkowski, has not, in his affidavit, explained the failure of ICBC prior to trial to pay the massage therapy costs of the plaintiff. Liability for these motor vehicle accidents was never seriously in dispute. The injuries that required massage therapy, therapy that was necessary for Mr. Del Bianco to work, and effectively minimalize the extent of his tort claim, were lower back, shoulder and soft tissue injuries.

[14]         Equally concerning is the apparent exaggeration, even today, less than one year into a potentially 40-year commitment, as to the extent of ICBC’s commitment to pay what was ordered after trial. In paragraph 6, Andrew Rudkowski deposes that “ICBC will reimburse Mr. Del Bianco for the necessary health care services he has incurred since March 22, 2019 and he incurs in the future”. That is, as noted by defence counsel, not true. They will only reimburse under their payment schedule of $80, when the court determined on the evidence the cost of such treatment at $85.

[15]         Counsel for the plaintiff ably argued about the difficult financial circumstances that his injury and the actions of ICBC placed on the plaintiff from the time of the accident until, essentially, the time of this application. For whatever reason, unexplained, ICBC refused to pay for his massage therapy treatments. The suggestion from counsel for the plaintiff was that ICBC took the position that because he had a hernia operation after the accident, not related to the injuries suffered in the accident, that the hernia problem was the source of his discomfort. That, to a great degree, defies logic, as the hernia was, for lack of a better term, in the plaintiff’s groin or abdomen, whereas the soft tissue injuries requiring massage were in his back.

[16]         The court is faced with the representations of a claims specialist from ICBC that they will, in the future, pay these costs. The evidence about the lack of financial viability of ICBC, as attested to by the Cabinet Minister responsible for ICBC, the Attorney General, is not significantly disputed. Nor is it disputed that ICBC is not prepared to pay for massage therapy at a rate that the court has ordered.

[17]         Additionally, and though this was not raised by counsel, but is a concern to the court, it is hard to know and predict, dare I say impossible to know and predict, at what rate ICBC will, in the future, be paying for massage therapy costs. This is not just a short-term future. This is 40 years. If, as now, this would require the plaintiff to pay the difference himself, to pay over and above what ICBC is prepared to pay, when the tort award was intended to fully compensate him. He may perhaps then seek reimbursement from ICBC. This creates a 40-year responsibility on this plaintiff to keep track of receipts, to make requests and deal with adjusters at ICBC. That is completely inconsistent with the general purpose of litigation and tort awards, to create some finality between the parties.

[18]         In light of the history of non-payment by ICBC for no apparent reason, as experienced by the plaintiff, it is unrealistic, in my view, to require him for a period of 40 years, to have to continue to deal with an adjuster at ICBC in order to obtain what the court has already ordered he is entitled to.

[19]         Additionally, as noted by the plaintiff, there is just too much uncertainty as to the ability of ICBC to make the payments at a rate ordered by the court. They are, today, not prepared to pay at the rate the court ordered. There is too much uncertainty related to their past history of being disinterested or disrespectful of the plaintiff’s claims. There is too much uncertainty as to what the future holds for ICBC, as evidenced by the affidavit of the plaintiff, for the court to have absolute confidence that if money is deducted from the tort award for Part 7 scheduled benefits, that they will actually be paid.

[20]         I note the case of Li v. Newson, 2012 BCSC 675, a decision of Mr. Justice Abrioux, as he then was. He notes in para. 14, inter alia, that “uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff”. I find on the facts before me considerable uncertainty that payments consistent with the tort award would be paid to Mr. Del Bianco for massage therapy for the 40 years as awarded.

[21]         As such, I am not prepared to deduct amounts for massage therapy under s. 83 from the plaintiff’s tort award. These comments relate to the massage therapy treatments to age 65 and the massage therapy treatments from age 65 to age 75. There is, as noted above, in the circumstances of a 40-year payment period, too much uncertainty and, frankly, too much of a requirement placed on this plaintiff to potentially request reimbursement weekly for funds not paid directly by ICBC, but payable out of his pocket. That is simply too much to expect.

Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

The guest post is written by ERIK MAGRAKEN

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

[23]         Public authorities do not owe a duty of care in tort if it is established that their actions were based upon a policy decision, unless the decision was made in bad faith or was so irrational as not to be a proper exercise of discretion.  However, public authorities can be liable for operational decisions provided the plaintiff proves the required elements of liability: Just v. British Columbia, [1989] 2 S.C.R. 1228 at 1245; Binette v. Salmon Arm (City), 2017 BCSC 302, aff’d 2018 BCCA 150, at paras. 10–14; Marchi v. Nelson (City of), 2020 BCCA 1 at paras. 14–16.

[24]         As a general rule, decisions concerning budgetary allotments for departments are classified as policy decisions, because they are an attempt by the public authority to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance.  True policy decisions will usually be dictated by financial, economic, social, and political factors or constraints: Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at 441; Binette at para. 12.

[25]         Operational decisions are those concerning the implementation and performance of the formulated policies and are usually made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness: Brown, at p. 441; Binette at para. 12.

[29]         The defendant submits that it is exempt from owing a duty of care to the plaintiff because its actions were in keeping with the Policy, which was put in place bona fide and in good faith based on, among other things, the availability of manpower, equipment, and budgetary constraints. 

[30]         The plaintiff submits that the classification of the Lot as a low priority area was not a bona fide policy because the Lot was along the defendant’s priority routes and could easily have been inspected with little to no extra effort.

[31]         I am satisfied on the evidence presented by the defendant that the Policy was dictated by financial, economic, and budgetary constraints.  It was a proper exercise of discretion.  Included in the Policy was the determination that the defendant’s six public parking lots were areas of low priority for snow and ice inspection and control, in the absence of a particular complaint or extreme weather event.  This was a resource allocation decision and, thus, an unassailable policy decision.

[32]         I also find the policy decision to be reasonable.  It is one thing for priority areas to be inspected and sanded.  To require as a matter of policy that those involved in the inspection of priority areas, at the same time, divert their attention to and engage in an inspection of areas considered low priority is illogical and inconsistent with reasonable resource allocation and prudent policy-making.  In my view, the Policy was bona fide.

bc injury law, Lowe v. Sidney, Mr. Justice G.C. Weatherill, Occupier’s Liability, Policy defence

Grouse Mountain Waiver Fails To Protect After Snowboarder Paralyzed

Today’s post is from BC injury claims lawyer Erik Magraken.

Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.

In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and  was rendered quadriplegic while snowboarding the Defendant’s resort.  He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.

The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate.  In reaching this conclusion BC’s highest court provided the following reasons:

[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).

[4]             I note parenthetically that in the Internet age, contracts of adhesion have become the electronic norm, and consumers routinely click on digital buttons confirming their acceptance of terms and conditions they have neither read nor understood.  Here, however, Mr. Apps did not click on any buttons or sign any forms.  What, then, was done to bring the relevant terms of the waiver to his attention is key…

[57]         In the absence of a ski hill exception, it follows that only the steps Grouse Mountain took before and at the time of the issuance of the ticket can be taken into account in assessing whether Grouse Mountain took sufficient steps to give reasonable notice to Mr. Apps of the terms of its waiver, and in particular of the inclusion of the own negligence clause.

[58]         What was said on the signs at the entrance to the Terrain Park is relevant only to the question of whether it gave reasonable notice of the risks of using that park, a question that is not before us.  By the time Mr. Apps arrived at the Terrain Park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding.  It was far too late to give notice of what was in the waiver.  That had to be done at or before the ticket booth.

[59]         Once we take the “clear and easy to read” signs at the Terrain Park out of the equation, as we must, we are left with the trial judge’s unequivocal findings at paras 36–38 and 47:

·       The sign at the ticket booth was “difficult to read”;

·       The own negligence exclusion was “not highlighted or emphasized in any way”, but was buried in small print among many commas and semi-colons;

·       “It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign.”

[60]         These findings of fact distinguish this case from cases such as McQuary, and Fillingham v Big White Ski Resort Limited, 2017 BCSC 1702, where Madam Justice Adair found the sign in question to be large, highly visible, and posted at all ticket locations.

[61]         Grouse Mountain argues that, notwithstanding these findings, the judge nevertheless observed that the heading at the top of the notice was easy to read.  Grouse Mountain asserts that this was all that was required to put Mr. Apps on notice that his ticket included an exclusion of liability that he should read.  As Blair J. said of the plaintiff in McQuary at para 21, “The defendant succeeded in bringing the exclusion of liability conditions to the plaintiff’s attention. It could not force him to read them.”

[62]         But in the circumstances of this case, this submission begs the question of what it was that had to be brought to Mr. Apps’ attention.  At para 31 of her reasons, the judge rightly recognized a waiver of an occupier’s own negligence as “among the most onerous of clauses”, and that “The more onerous the exclusion clause the more explicit the notice must be”.  It does not follow that because there may have been adequate notice that something in the contract limited one’s rights, enough had been done to bring to the consumer’s attention the fact that the contract included a clause so onerous as to exclude liability for the service provider’s own negligence.

[63]         It is in this context that we must assess the reasonableness of Grouse Mountain’s actions.

[64]         In the Mile case, the plaintiff who attended a Club Med resort was aware that the brochure he reviewed contained an exclusionary clause, but had not read it.  The court noted that in words that were not in small print or hidden in any way from even the casual reader, the resort provided that it “shall not be liable, for any injury, illness, damage, loss, accident, expense, delay or other irregularity resulting from a member’s participation in any activity …”.  This is similar to the language towards the top of the notice that Grouse Mountain posted.  But in the court’s view, that wording was not sufficient to do more than exclude liability with respect to the normal risks involved in sports.  Knowledge, in short, of the existence of exclusionary language does not of itself indicate awareness of the fact that the extent of the exclusion goes beyond what would normally be expected.

[65]         In our case, the waiver made specific reference to Grouse Mountain’s own negligence.  But, as the trial judge found, that reference was buried in a difficult-to-read section, 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.  It follows from this that the judge’s observation that the first lines of the notice were emphasized and in large print cannot be taken as indicating that Grouse Mountain had done what was necessary to bring the onerous own negligence clause to Mr. Apps’ attention.

[66]         In this regard, it is enlightening to consider the terms of Grouse Mountain’s season’s pass contract form, which must be signed by all persons who purchase season’s passes.

[67]         That document begins with a yellow box outlined in red indicating that it is a release of liability, waiver of claims, assumption of risk and indemnity agreement, and it admonishes the consumer to read it carefully.  Below that box, it sets out terms concerning the assumption of risks, and others relevant to the release of liability and waiver of claims.  The specific waiver clause is then again placed in a yellow box outlined in red, and the own negligence clause is in capital letters.  It makes specific reference to the OLA, and includes a definition of negligence: “I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE.”

[68]         The document, in short, highlights and explains the own negligence clause in conformity with Lord Denning’s “red hand” comment (see para 30 above). To the extent one’s attention is directed to this document (as it would be by requiring a signature), the court can have confidence that anyone who read it would be well aware of the extent of the waiver.  On the judge’s findings here, that cannot be said of the notice posted by Grouse Mountain at the ticket booth and printed on the ticket.

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