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In a tragic incident at Grouse Mountain in 2016, an Australian snowboarder (Apps) seriously injured his spine after an accident on the mountain, resulting in him becoming a quadriplegic. The snowboarder, sued Grouse Mountain Resorts (Grouse) for negligence and breach of the Occupiers’ Liability Act, claiming that he was not made aware of the company’s waiver – specifically the risks involved with the jump on which he was injured. In the case Apps v. Grouse Mountain Resorts Ltd. (2019) the liability of Grouse for the snowboarder’s injuries was determined.
A waiver is an extremely important document for the operation of many businesses, big and small. Most people aren’t aware that a poorly drafted or displayed waiver is not always legally binding. However, many waivers are legally binding, and individuals should always be aware of what they are signing, and the risks of the activity they are about to undertake.
Grouse did not require their customers to sign a waiver. Grouse’s liability waiver was displayed on a large sign (above the ticketing booth), on the back of the chair lift tickets and on a sign at the park’s entrance. There were also warning signs displayed at various spots throughout the park. This formed an implicit waiver with the customers. The act of using the mountain and its amenities implied that the customer accepted the waiver’s terms and conditions. Apps argues that Grouse failed to warn him of the risks and dangers of their slopes and jumps which, he claims, had no safety precautions implemented. He argued that the waiver signs were not clear enough and one would not reasonably read the terms and conditions until after they had purchased the non-refundable park ticket.
In this case, it is clear to both parties that the waiver’s terms are legitimate – they apply to the facts of how the accident occurred, the waiver is not unconscionable and the waiver is not against public policy. The subject matter before the court was whether Apps was bound to this waiver, seeing as he did not physically sign it, or acknowledge reading it.
The specific issues of the case were:
At the time of the accident, Apps was an employee at the Whistler Mountain Resort, where they had their customers sign a waiver before skiing or snowboarding on their hills. The judge deemed that Apps should have been aware of the hazards and risks at Grouse because he was involved with giving similar waivers to customers at work. He also had a season’s pass at Whistler Blackcomb, where he signed a waiver, acknowledging the risks and dangers of snowboarding at the Whistler mountain.
While he may have not been directly aware of the risks at Grouse, the BC Supreme Court judge dismissed his lawsuit. Grouse was ruled to have done “all that was reasonable” to bring the terms of the waiver to Apps’ attention before he began snowboarding that day.
Apps later appealed this judgement, on the grounds that he didn’t notice the terms of the waiver until after he purchased his non-refundable ticket and that the waiver at Whistler was not relevant to his case involving Grouse. If Apps was not made aware of the terms and conditions of the waiver before purchasing the ticket, this would not be reasonable notice on behalf of Grouse.
On the first issue, the appeal judge ruled that Grouse did not take sufficient steps in giving Apps reasonable notice of the risks of the mountain and the jump. While it was determined that the park entrance sign was “clear and easy to read,” it was not relevant to the case because this was displayed to Apps after he had purchased his ticket. The only waiver notice before the ticket was purchased was the sign above the ticketing booth which was said to have been “difficult to read.” The appeal judge ruled that it would be unreasonable to assume anyone would stop to read this sign.
On the second issue, Apps’ waiver signing at Whistler Mountain was ruled insufficient in giving him the knowledge of Grouse’s negligence exclusion. Apps admitted that he did not read the waiver in which he signed for his season’s pass at Whistler. The appeal judge ruled that while he is bound to the terms of that waiver, it does not make sense to imply that this waiver makes him knowledgeable in the waiver he also did not read at Grouse. Apps “had neither actual knowledge of the term, because he did not read it, nor an express understanding that its inclusion was standard.”
On Mar. 4, 2020, Apps’ appeal was granted by the BC Court of Appeal. This case brings additional clarification as to when an implied waiver is legally binding. Displaying a “difficult to read” sign that outlines risk and hazards is not enough to exempt a company from being held liable for injuries.
For more information, read our blog post on signing a waiver in BC.