Canada: Ski Buddies: Is There A Duty Of Care?

Last Updated: January 30 2014
Article by Peter J. Roberts

Some time ago, I wrote a blog post about a Court of Appeal decision that upheld, and arguably extended, the enforceability of liability waivers and releases signed by customers of commercial enterprises.  That particular case involved zip-lining, an activity the court described as an inherently risky recreational adventure.  While that decision served as confirmation that the owners, operators and staff of commercial adventure businesses can protect themselves from negligence claims by their patrons, it did not answer the question of whether the participants in such activities owed a duty of care to each other.  

However, a recent B.C. Supreme Court decision does provide that answer, at least in the context of back-country skiing.  It is the first case in Canada to consider whether a "ski buddy" owes a legally enforceable duty of care to the person with whom they choose to ski.  This case has widely been referred to in the media as the "ski-buddy" case.  The case raises several interesting considerations, both for participants in high-risk adventure sports and for the owners and operators of enterprises that facilitate those activities.  Adventure tourism is a significant part of B.C.'s tourism industry. 

The lawsuit was brought by a woman whose husband, Mark Kennedy, died of asphyxiation after falling into a tree-well while heli-skiing at Mike Wiegele Heli-Skiing near Blue River, B.C.  She brought her claim under the Family Compensation Act seeking to recover the financial loss to her resulting from the death of her husband.  She did not sue the guides or the heli-skiing operator, likely because Mr. Kennedy had signed a waiver releasing them from legal responsibility.  Instead, Mrs. Kennedy alleged that her husband's "ski buddy," Adrian Coe, was legally responsible for Mr. Kennedy's death and the resulting financial loss to her.  She alleged Mr. Coe owed Mr. Kennedy a duty of care which he failed to carry out.  Specifically, she asserted Mr. Coe did not remain close enough to his buddy and failed to notify the guides in a timely way that Mr. Kennedy was missing.  This, she argued, delayed the search for Mr. Kennedy and any chance of rescuing him.

Mr. Kennedy and Mr. Coe had been assigned as "ski buddies" by their guides at the start of the first day of the trip.  The men did not know each other and never spoke.  The Court commented that Mr. Kennedy chose to engage in a "high-risk sport with knowledge of its attendant risks.  He paid a third party for the opportunity to participate in that sport, and signed a waiver of liability.  He participated in a buddy system that was flexibly applied depending on the terrain, the conditions and the instructions of the guides."

In short, the Court found that Mr. Coe did not owe a duty of care to Mr. Kennedy because, in legal parlance, there was not a "special relationship" of sufficient "proximity" between the two men.  Madam Justice Fisher reasoned:

Mr. Coe did not take effective control over or undertake primary responsibility to manage or mitigate the risk and consequences of Mr. Kennedy falling into a tree well.  Moreover, he did not know that the risk had actually materialized.  Nor can it be said that Mr. Coe's agreement to be Mr. Kennedy's ski buddy put Mr. Kennedy in a worse position.  It may have prevented Mr. Kennedy from being paired with another skier but any other skier would have been in the same circumstances and subject to the same directions from the guides as Mr. Coe.

When Mr. Coe agreed to be Mr. Kennedy's ski buddy in the circumstances here, he did not invite Mr. Kennedy to rely primarily on him to mitigate the potential risk of injury or death resulting from the hazards inherent in back-country skiing. Mr. Coe could neither control the inherent risks nor Mr. Kennedy's conduct. Any role that Mr. Coe played did not place him in a position where he was materially implicated in the control of the risk of Mr. Kennedy falling into a tree well and dying from asphyxiation. He did not assume responsibility for Mr. Kennedy's safety. He was not responsible for calling a search and conducting a rescue operation. This was the role of the experienced guides and support staff employed by Wiegele's.


Whatever relationship was created when the two agreed to be ski buddies, it was defined by the guide's instructions to the group at the top of the forest (to keep each other in visual and vocal contact in the forest) and more generally by the instructions provided in the safety video (to use the buddy system in the trees, stay in contact with their partners and keep the guide's tracks in sight). Mr. Coe and Mr. Kennedy never spoke to each other. There is no evidence of any mutual understanding as to what their roles as ski buddies entailed outside of this context. Moreover, Mr. Coe did not have a material role in managing the risk, as discussed above.

In my view, a skier who accepts a buddy relationship does not park his autonomy at the bottom of the mountain, and remains responsible for his own actions. . . .  "[S]hort of active implication in the creation or enhancement of the risk", one ski buddy is entitled to respect the autonomy of the other.  I do not accept the view that Mr. Coe and Mr. Kennedy voluntarily surrendered all of their autonomy by agreeing to be ski buddies.  They did so to a limited extent.  Except when Mr. Coe followed Mr. Kennedy through the forest, each continued to ski as and where he wished without reference to the other.

In conclusion, Madam Justice Fisher held that there is no legally enforceable duty of carebetween paying guests on a heli-ski trip.  She found that the primary responsibility for safety in cases like this rests with the individual participants.  She wrote:

There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves.  However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence . . .  For the reasons I have outlined, I conclude that none of [these] factors . . support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish a prima facie duty of care.  A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs.  The "more" may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances.

This decision is important for several reasons.  First, it clearly places on individual participants the primary responsibility for their own safety when engaging in high risk adventures.  If that is to change, it should only be in clear and definable circumstances that establish a common understanding of a shift in the acceptance of that risk.  Second, it brings some certainty to the adventure tourism industry that its customers will not be sued by other guests who may suffer misfortune while participating in their chosen high-risk adventure.  Lastly, it is a cautionary tale about the prudence of purchasing travel insurance.  In this case, Mr. Coe, a resident of London, England, had the foresight to obtain a good policy from Dog Tag Travel Insurance.  That insurance protected him from the costs of defending Mrs. Kennedy's claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Peter J. Roberts
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions