The Plaintiff, Karen Neidermeyer, suffered serious injuries in a
motor vehicle accident while returning to Whistler Village
following a zip lining adventure with the Defendant, Ziptrek
Ecotours Inc. ("Ziptrek"). The van in which Neidermeyer
was a passenger was owned by Ziptrek and operated by an employee of
Ziptrek, William Charlton.
The Ziptrek van went off the road, overturned and fell down a
hill. While admitting that the accident occurred due to
Charlton's negligence, Ziptrek argued that Neidermeyer's
claim was defeated by a release she had signed prior to embarking
on the zip lining adventure.
The release specified that Neidermeyer waived all claims against
Ziptrek and its employees for any and all liability, including
personal injury, associated with the "Adventure
Activities" being provided. The definition of Adventure
Activities included "travel to and from the tour
At trial, the judge concluded that Neidermeyer was "not
entitled to recover damages due to Charlton's negligence
because she surrendered that right when agreeing to the waiver and
release of all claims as a condition of being permitted to use the
Defendants' zip line facility".
Neidermeyer appealed, and the British Columbia Court of Appeal
overturned the trial decision. The Court found that it was
"contrary to public policy to permit 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". British Columbia has a statutory scheme of
compulsory universal insurance coverage for damages for personal
injury arising from motor vehicle accidents, and a waiver cannot
overcome liability arising from these accidents.
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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