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:
 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).
 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…
 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.
 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.
 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.”
 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.
 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.”
 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.
 It is in this context that we must assess the reasonableness of Grouse Mountain’s actions.
 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.
 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.
 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.
 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.”
 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.