In the recent case of Niedermeyer v.
Charlton,1 the British Columbia Court of Appeal
provides further guidance regarding the scope of waivers of
liability in British Columbia. In this case, the Court of Appeal
has reminded us that, in certain narrow situations, public policy
considerations may operate to relieve parties from agreements (or
portions thereof) that they have otherwise freely entered into.
The Appellant, Karen Niedermeyer, suffered significant injuries
when a bus operated by the Respondents left the road while
returning from zip line activities, which were also operated by the
Respondents. Following a summary trial, the Supreme Court of
British Columbia held that the release agreement
("Release") signed by Ms. Niedermeyer before
participating in the zip line activities was a complete defence to
her claim. On appeal, the British Columbia Court of Appeal was
asked to consider the enforceability of the Release and, in
particular, whether the Release applied to the motor vehicle
Universal and compulsory insurance coverage for motor vehicles
exists "in one form or another" in every province in
Canada2 and British Columbia is no exception. British
Columbia's insurance regime combines: (1) statutorily
prescribed no-fault benefits with (2) compensation for liability
where the injured motorist first establishes liability for his or
her injuries . In Niedermeyer, the Respondents successfully argued
at summary trial that the Release was a complete defence to the
claim and thus this latter category of benefits were precluded,
because Ms. Niedermeyer could not establish liability for the
Accident as result of the Release.
Court of Appeal Decision
In its decision, a majority of the Court of Appeal reasoned that
it is contrary to public policy to allow "the owner and /or
operator of a motor vehicle to contract out of liability for
damages for personal injuries suffered in a motor vehicle accident
in British Columbia."3 The Court of Appeal held
that public policy should not permit the Respondents to rely upon
the Release for a claim that did not arise in the course of the zip
line activities operated by the Respondents, but instead occurred
during transportation provided by the Respondents to and from the
site of those activities.4 In arriving at its decision,
the majority canvassed the intended purpose and legislative history
surrounding universal motor vehicle insurance in the province. The
majority found that a central purpose of the province's motor
vehicle insurance regime is to "provide for the universality
of coverage even in the absence of insurance".5 The
majority concluded that allowing "individuals to contract out
of ... [universal motor vehicle insurance] through a release of
liability clause would undermine the social contract that the
government has made with those who use its roads"6
and therefore held that the Release could not
operate as a defence to Ms. Neidermeyer's claim.
In dissent, Mr. Justice Hinkson agreed with the summary trial
judge and held that the Release ought to operate as a complete
defence. Hinkson J.A. disagreed with the majority by holding that
the Release was not in fact contrary to public policy and observing
that, if the legislature had intended to prohibit parties from
contracting out of motor vehicle insurance in the province, it
would have expressly done so.7
Trial courts in other provinces may now look to the British
Columbia Court of Appeal for guidance should a similar situation
arise in the future.8 Although Niedermeyer may
prove to stand as a narrow exception to the general principle that
a release will operate as a complete defence to most claims, the
decision is an important reminder for businesses and individuals
alike that public policy may operate as a reason for the courts to
interfere with an agreement otherwise entered into freely and
willingly by competent parties.
1. 2014 BCCA 165
2. Ibid at para. 107.
3. Ibid at para. 72.
5. See e.g. Ibid at para. 88.
6. Ibid at para. 107.
7. Ibid at para. 64.
8. Ibid at para. 109 [There is apparently
limited case authority on point where a party has sought to use the
existence of an exclusion clause to escape liability for a motor
vehicle accident where there is also a compulsory universal motor
vehicle insurance regime in place.]
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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