The British Columbia Court of Appeal has recently reversed a lower court's decision to grant summary judgment to a defendant ski resort after determining that the resort had not taken sufficient steps to bring itself into compliance with the province's Occupiers' Liability Act, RSBC 1996 c 337 (the "OLA"). While clarifying the appropriate test, the Court of Appeal's decision has also expanded the steps an occupier must to take if it wishes to rely on contractual exclusionary language to narrow or negate its own tortious and contractual liability.
Jason Patrick Apps, an Australian visitor to BC, brought an action against Vancouver's Grouse Mountain ski resort after suffering catastrophic injuries while snowboarding in a terrain park during the resort's 2016 season. In Apps v Grouse Mountain resorts Ltd, 2019 BCSC 855, the chambers judge dismissed his claim after finding that the resort had taken sufficient steps to bring to Mr. App's attention the fact that it had inserted contractual exclusionary language that negated the resort's liability to visitors in the event of an injury.
Under British Columbia's occupiers' liability legislation – as with much of Canada – an occupier such as Grouse Mountain is entitled to limit or exclude the duty of care it would otherwise owe to visitors such as Mr. Apps so long as it takes "reasonable steps to bring that extension, restriction, modification or exclusion to the attention of that person" (OLA at s. 4(1)). Essentially, if a ski resort inserts a contractual provision that restricts a visitor's ability to sue if he or she is injured, the ski resort must take reasonable steps to bring that provision to the visitor's attention in order to actually rely on it as a defence. The chambers judge found that Grouse Mountain had done so, and Mr. Apps' claim was quashed. He appealed the decision shortly afterwards: 2020 BCCA 78.
On appeal, the Court's decision turned entirely on whether or not the chambers judge had correctly determined that Grouse Mountain's efforts were in fact sufficient. The issue remained the resort's "own negligence" clause, which read, in part:
As a condition of use of the ski area and other facilities, the ticket holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to... [the] negligence, breach of contract or breach of statutory duty of care on the part of the ski area operator and its associated companies and subsidiaries, and their respective employees, instructors, guides, agents, independent contractors, subcontractors, representatives, volunteers, sponsors, successors and assigns (hereinafter collectively referred to as the "Ski Area Operator").
This exclusionary language was posted above the ticket booth and was reproduced on the back of Mr. Apps' ticket. Additionally, the entrance to the terrain park bore large signs warning of the extreme danger of using the terrain park's facilities.
The chambers judge held that these three warnings, at least collectively, had sufficiently discharged Grouse Mountain's duty under the OLA to bring to Mr. Apps' attention the nature of the exclusionary language it was relying on. However, in so deciding, the Court went a step further by importing Mr. App's presumed knowledge about such contractual clauses from his time working at the nearby Whistler Blackcomb ski resort, stating (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.
In overturning the chambers judge's decision, the Court of Appeal took issue with both of these arguments, stating:
- It was improper for the chambers judge to consider the adequacy of any signage posted after Mr. Apps had purchased his lift ticket; and
- It was improper for the chambers judge to import Mr. Apps' knowledge of similar exclusionary language from his experience as an employee and visitor of Whistler Blackcomb.
As to the first issue, the Court of Appeal clarified that the time for determining the adequacy of an occupiers' notice is at or before a visitor enters into the contract. That is to say, the reasonable steps an occupier takes in order to satisfy s. 4(1) of the OLA must be taken at or before the point of purchase. The Court reasoned (at paras 57-58):
...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.
With the terrain park signage properly removed from consideration, all that remained was the resort's signage above the ticket booth and the exclusionary language printed on the back of Mr. Apps' ticket. The chambers judge had criticized both these efforts, finding that the sign 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.
The Court of Appeal concluded on the basis of these "unequivocal" findings that Grouse Mountain had not in fact taken reasonable steps to bring the exclusionary language to Mr. Apps' attention. Grouse Mountain failed to meet the "reasonable steps" test under s. 4 of the OLA and was therefore not able to rely on it as a defence.
As to the second issue, the Court of Appeal commented that the chambers judge further erred in law by importing Mr. Apps' "pre-contract experience" into the analysis. As noted above, the chambers judge was satisfied that even if the resort's notice had been inadequate, Mr. Apps nonetheless held constructive knowledge of the exclusionary clause by virtue of his time working and snowboarding at the nearby Whistler Blackcomb resort, where he dealt with similar clauses.
To that, the Court of Appeal argued (at para 83):
As the judge observed, the own negligence clause was among the most onerous of terms, requiring Grouse Mountain to provide the most explicit notice. But, in law, I do not think the fact that Mr. Apps had some previous awareness that when he signed an agreement at Whistler, he was waiving legal rights of some sort, can satisfy that obligation in this case. While as between him and Whistler, he must be assumed to have understood what he was signing because he signed Whistler's document, as between him and Grouse Mountain, that assumption is not transferable to satisfy Grouse Mountain's obligation when purporting to contract out of its duty of care under the OLA, and no inference can arise—at least in the absence of an express appreciation by Mr. Apps that such terms were standard and expected. No such express appreciation was found here (bearing in mind the brief history of his time in Canada, and his experience at only two mountains).
Effectively, therefore, it was an error of law for the chambers judge to import Mr. App's knowledge as it may have related to Whistler Blackcomb to the within circumstances.
In the result, Mr. Apps was successful on appeal and the summary dismissal granted in Grouse Mountain's favour was overturned. The matter will presumably proceed to trial.
Apps provides the helpful clarification and reaffirmation that when an occupier attempts to rely on onerous exclusionary language to limit or negate its own liability to a visitor, the steps it must take to bring that fact to a visitor's knowledge must be taken at or before the point of the visitor entering into the contract. Post-contract steps cannot be considered as part of the occupier's reasonable steps. Further, there can be no presumption of knowledge. The reasonable steps rule in ticket cases is not a rule of limited applicability; it is the whole point, and no presumption arises. Given the expansive definition of who constitutes an "occupier" under Canada's occupiers' liability legislation, this ruling could have significant impacts across myriad sectors and industries that regularly receive visitors.
This article is an update to our earlier publication, Limitations of liability on lift ticket upheld.
Originally published 21 May 2020
Read the original article on GowlingWLG.com.
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