In 2012, the B.C. Court of Appeal's decision in Loychuk
v Cougar Mountain Adventures Ltd., 2014 BCCA 122, confirmed
that people who knowingly and voluntarily engage in inherently
risky recreational activities will be precluded from suing a
commercial operator where they signed a release waiving claims in
negligence. Such releases were held to be neither unconscionable,
nor against public policy.
In a recent decision, the B.C. Court of Appeal placed some
limits on the use of releases, holding that vehicle
owners/operators cannot contract out of liability for damages for
personal injuries suffered in a motor vehicle accident.
In Niedermeyer v Charlton, 2014 BCCA 165 the Plaintiff
participated in a zip lining activity operated by the Defendant,
Ziptrek Ecotours Inc.. Ziptrek also operated a bus, which brought
participants to and from the activity. The Plaintiff was injured
while returning from the activity area when the bus left the road,
overturned, and fell down a hill. She had signed a waiver that
released Ziptrek from liability for both the zip line activity and
transportation to and from the activity. The Court found that the
release was valid and not unconscionable. However, the Court
questioned whether the release was contrary to public policy to the
extent that it released the Defendant from liability for
transportation to and from the site of the zip line activity.
Of particular importance in the decision was B.C.'s
statutory vehicle insurance scheme, collectively found in the
Insurance Corporation Act, RSBC 1996, c 228, the
Insurance (Vehicle) Act, RSBC 1996, c 231, the
Insurance (Vehicle) Act Regulation, B.C. Reg 447/83, and
the Motor Vehicle Act, RSBC 1996, c 318. The scheme
combines no-fault accident benefits with those that require a
claimant to first establish liability before indemnification will
be awarded for the injuries suffered by the claimant. Allowing
owners/operators to contract out of liability would preclude a
claimant from the latter category.
The statutory scheme does not explicitly prohibit or permit an
owner or driver to contract out of liability. However, the Court
found that the scheme taken as a whole showed that there was a
compelling public policy interest at stake – namely, to
provide a universal, compulsory insurance program in an effort to
ensure safety on the roads and access to compensation to people who
suffer when those measures fail.
In addition to being against public policy, the Court held that
allowing vehicle owners/operators to contract out of liability
would be against the principles of statutory interpretation. It
found that reading the words of the statutory scheme in its
context, harmoniously with the whole of the scheme and the purpose
of it, supported the view that the legislature did not intend to
allow vehicle owner/operators to have the ability to exclude the
operation of otherwise universal compulsory insurance.
In a strongly worded dissent, Hinkson J. acknowledged that the
Insurance (Vehicle) Act provided for universal compulsory
vehicle insurance, but held that it did not prohibit drivers and
passengers from contracting out of the scheme between themselves.
He reasoned that had the legislature intended that the scheme could
not be contracted out of then it would have expressly stated as
such in the Insurance (Vehicle) Act. Hinkson J. also noted
that the Plaintiff was still eligible for no-fault benefits. He
held that these benefits were consistent with public policy in B.C.
and were not inconsistent with the ability of commercial operators
to contract out of liability for transportation which was part and
parcel of the inherently risky activity offered.
In the result, the Court allowed the Plaintiff's appeal and
remitted the case to the Supreme Court to assess her injuries.
It is difficult to understand why commercial operators who offer
zip lining, bungee jumping, horseback racing, or base jumping can
contract out of negligence for these inherently risky activities
but cannot contract out personal injury damages arising from
driving participants to and from the activity areas. As Hinkson J.
noted in his dissent, the only cases where parties have not been
allowed to contract out of statutory rights, despite no prohibition
against contracting out, are cases of human rights violations. The
Court of Appeal seems to have elevated the status of the public
policy interest behind B.C.'s statutory vehicle insurance
scheme. Indeed, the Court stated that, "the ICBC regime is
intended as a benefit for the public interest just as is human
rights legislation" (para 114). Therefore, commercial
operators should be aware that any releases containing waivers of
liability will likely be found unenforceable to the extent that
they purport to release liability for motor vehicle accidents.
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.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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