Canada: Is Your Standard Form Release Contrary To Public Policy? The British Columbia Court Of Appeal Provides Guidance

Clauses that exclude, or "release", liability are widespread and critical to risk management for many businesses. Typically, such clauses stipulate that the signee waives the right to sue if they are injured while participating in certain activities. Inevitably, in the event that the signee is injured, a variety of arguments are put forward as to why the particular exclusion clause is unenforceable in the particular circumstances.

Recently, in 2010, the Supreme Court set out a new approach to the analysis of whether an exclusion clause is unenforceable in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4. Although Tercon set out a new approach, since it was issued, there has been little to no change in the circumstances in which a clause will be held to be unenforceable. In other words, Tercon changed the approach but not the result. However, that is no longer true thanks to the British Columbia Court of Appeal's recent decision in Niedermeyer v. Charlton, 2014 BCCA 165, wherein it expands the types of clauses which will be found to be contrary to public policy.

Factual Background

The Plaintiff, Karen Niedermeyer, was an Australian ex-pat, resident in Singapore, who was visiting British Columbia for a conference when she was unfortunately injured in a bus accident. At the time of the accident, the bus was taking Ms. Niedermeyer back to Whistler Village from a "zip line experience" operated by the Defendant, Ziptrek Ecotours Incorporated.

At summary trial, Ziptrek argued that a document titled "Release of Liability, Waiver of Claims Assumption of Risk and Indemnity Agreement" signed by Ms. Niedermeyer, was a complete defence. The trial judge agreed and Ms. Nidermeyer's claims were dismissed. Ms. Nidermeyer appealed.

The Decision

Ms. Nidermeyer advanced four grounds of appeal. The first three concerned whether the release covered injuries of the nature Ms. Nidermeyer suffered, whether the release was unenforceable because the contents were not brought to her attention, and whether the release was unconscionable. The Court of Appeal unanimously dismissed all of these grounds.

The court split on the final ground of appeal, whether the release was contrary to public policy.

The majority held that the release was unenforceable as it was contrary to public policy in British Columbia for an owner or operator of a "motor vehicle to contract out of liability for damages suffered in a motor vehicle accident in British Columbia."

The majority began its analysis with an interpretation of the public policy test set out in Tercon. In the majority's view, the "heads" of public policy are not closed to the ones previously recognized, i.e. Tercon broadened the scope of the public policy branch of the test for exclusionary clauses. On that basis, the majority concluded that the appropriate approach to the public policy test is:

... that a plaintiff seeking to avoid the effect of an exclusion clause identifies the public interest that he or she says outweighs enforcement of the contract freely entered into. (para 80)

The majority went on to consider the particular statutory scheme at issue, namely the universal motor vehicle insurance scheme in British Columbia. On the basis of a thorough examination of the relevant provisions, the majority held that:

Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose of it, supports the appellant's view that the legislature could not have intended vehicle owners and operators to have the ability to exclude the operation of the otherwise universal compulsory insurance. (para 93)

The majority found support for this interpretation in the legislative history of the insurance scheme. The majority also found support for its position in cases concerning the inability to contract out of human rights legislation, cases which it held were analogous.

Justice Hinkson dissented on the fourth ground on the basis that Tercon has not expanded the definition of public policy. In other words, when Justice Binnie referred to "public policy" he was referring to statutory illegality, common law illegality and to the five traditional "categories" in the doctrine of public policy (set out at paragraph 44). Therefore, to hold that an exclusionary clause is unenforceable for "public policy" reasons, a court must find that it fits under one of those headings.

In the case before him, Justice Hinkson noted that the legislature had provided a statutory right, universal compulsory vehicle insurance, but had not included a prohibition against contracting out of that right, an option that was available to them. In light of that, the clause was not statutorily illegal. Therefore, as none of the other headings could possibly apply, the exclusionary clause was not contrary to public policy.

Potential Significance

The majority's reasons inarguably represent an expansion of the definition of public policy. The clause in question was not statutorily illegal, indeed the majority did not hold that it was, nor did the clause fit within any of the five traditional categories of the doctrine of public policy. Instead, the majority found that the exclusionary clause was contrary to public policy because the applicable legislation "strongly expressed" a public policy of universal insurance to which the clause was contrary.

Ziptrek may appeal and, in light of the strong dissent and the underlying facts, the case presents a great opportunity for the Supreme Court to clarify it's earlier judgment in Tercon. If the decision stands, it adds uncertainty to the enforceability of exclusion clauses. This impact should be limited, to some extent, by the particular statutory scheme which formed the basis for the decision.

In any event, the case should be a starting point for any consideration of the enforceability of a clause excluding liability. Justice Hinkson, who was writing for the majority on the first three issues, wrote comprehensive reasons and the majority's reasons represent the most fulsome appellate consideration of Tercon and the public policy exception to date.

Case Information

Niedermeyer v. Charlton, 2014 BCCA 165

Docket: CA040431

Date of Decision: April 30, 2014

To view the original article, please click here.

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.

In association with
Related Video
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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.