The Ontario Superior Court of Justice recently released a
decision that provided additional comments on the efficacy of
waivers and the development of waiver defences in
In Trimmeliti v. Blue Mountain Resorts
Limited,1 decided by the Honourable Mr.
Justice Dunphy, the plaintiff, a season pass holder, was night
skiing with friends on the defendant's premises when he
collided with a fluorescent orange mesh ribbon that was used to
close a run. As a result of this collision, the plaintiff
suffered a fractured clavicle.
Evidence was advanced at trial by the defendant that prior to
the plaintiff's receipt of the season pass he executed a
"Release of Liability, Waiver of Claims, Assumption of Risks
and Indemnity Agreement." Justice Dunphy noted that the
title, "...cannot have failed to put the plaintiff or anyone
on inquiry as to the nature of the contractual terms that
followed."2 Justice Dunphy also noted that the
title was presented in large, bold type and highlighted in
Contained within the title box was a statement which indicated
"BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL
RIGHTS, INCLUDING THE RIGHT TO SUE. PLEASE READ
The plaintiff was required to initial a box that was placed next
to this statement. Furthermore, the plaintiff provided his
signature at the bottom of the waiver, beneath an additional bold
typed statement which indicated:
"I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND I AM AWARE
THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS
WHICH I OR MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND
REPRESENTATIVES MAY HAVE AGAINST THE
...the plaintiff understood and agreed with the purpose of
the document and made a choice to not inform himself
Although the plaintiff stated that he did not read the agreement
in full, Justice Dunphy held that the plaintiff could not have
failed to understand what the agreement was about in a general
way. When the plaintiff provided his signature, Mr. Justice
Dunphy determined that the plaintiff understood and agreed with the
purpose of the document and made a choice to not inform himself
The existence of "fine print", which in the words of
Justice Dunphy was not so much "fine print" as a loud
proclamation displayed prominently on the waiver found in a bold
type text box, contained a very explicit assumption of risk
In addition, the defendant had recreated the language contained
within the release on the back of all lift tickets. They had also
displayed the terms of the release prominently around the premises,
including at the entry to each chair lift. In short, there was
nothing more the defendant could have done to ensure that the
plaintiff and other users of the defendant's premises had
knowledge of the conditions required to access the ski hill.
Beyond the existence of the waiver agreement, evidence was
advanced regarding plaintiff's familiarity with the
defendant's ski hill. Therefore, the court held that the
plaintiff knew or ought to have known about the defendant's
requirement to complete a waiver prior to using the ski
Justice Dunphy also considered the case of Goodspeed v. Tyax
Mountain Lake Resorts Ltd.5 in order to determine
if, on the facts of this case, the waiver should not be enforced.
The case of Goodspeed provided that waivers should not be
enforced only in one of three situations:
Where there has been non est factum;
Where there has been a misrepresentation;
Where the defendant knows that the plaintiff does not intend to
be bound by the form, and therefore there is a duty to bring its
terms to the plaintiff's attention.
In applying the test as set out in Goodspeed and with
knowledge of the decision in Karroll v. Silver Star Mountain
Resorts Ltd.6 which held that there was no presumed
duty to bring these types of clauses to the attention of a party,
the court determined the waiver was to be enforced. As a
result, the plaintiff's case was dismissed.
The decision reached in Trimmeliti indicates that the
efficacy of waivers is increased where the purpose of the waiver is
clearly communicated to all parties. This can be accomplished
through the use of vibrant text on the release itself as well as
reproduction of the terms of the release in locations that can be
readily observed by users of the premises.
Furthermore, in determining whether the terms of a waiver should
be enforced; the courts will look to the parties' familiarity
with conditions for entry onto the premises. Evidence of this
familiarity can therefore be crucial in the successful advancement
of a waiver defence argument.
As demonstrated by the decision in Trimmeliti, when
waivers are used appropriately they may operate as a complete
defence to a tort claim.
1 2015 ONSC 2301 (Ont.
S.C.J.) 2Ibid at para 66. 3 Ibid at para 67. 4Ibid. 5  BCJ No 2515 (B.C. S.C.). 6(1988) BCLR (2d) 160 (B.C. S.C.).
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