Canada: Skiing Accidents: Is There Always Someone Responsible?

Last Updated: December 6 2016
Article by Samuel Gagnon and Catherine Bourget

Each year, once the snow begins to fall, legions of skiers hit the slopes seeking thrills, chills and an escape from late-autumn ennui. Unfortunately, sporting activities such as this involve inherent risks that occasionally result in accidents, some of which give rise to lawsuits. The thorny issue then is: Who is responsible, and to what degree?

The victim's injuries may be attributable to the owner/operator of the ski hill, to the victim or to both parties. It may also be, as in the recent Quebec Superior Court case Pierre Lessard et Paule Julien v. Centre De Plein Air Du Mont Kanasuta Inc.1, that a fault cannot be attributed to anyone.

On December 27, 2011, the plaintiff Pierrre Lessard ("Lessard"), an experienced skier, fell precipitously on a downhill ski run owned and maintained by the Defendant. His left knee was badly injured by the fall, rendering him partially disabled and unable to return to work.

Lessard maintained that the defendant ski-hill operator (the "Operator") was responsible for the accident, and alleged that there was an irregularity on the trail that had caused him to fall. He further alleged that this irregularity, in which his ski had become wedged, constituted a trap. He and his wife (together, the "Plaintiffs") were claiming damages totalling $1,600,000.

The Operator denied the allegations of negligence made against it, arguing that no fault on its part had been proven. It also impleaded the owners of a ski boutique (the "Boutique") that had adjusted the bindings on Lessard's skis three years previously.

The Court identified three rules in the case law that are specific to actions involving downhill skiing accidents:

  1. A ski-hill operator has an obligation of means and of due care towards its clients.
  2. Downhill skiing, like all other sports, has inherent risks.
  3. The owner or operator of the ski hill must not create or tolerate the existence of a trap.

On those grounds, the Court concluded in this case that the accident was not due to the negligence of the Operator2, of the Boutique3 or its employees, or of Lessard. This was rather "[TRANSLATION] one of those unfortunate but all too frequent accidents that occur when sporting activities are being engaged in".

Commentary: The outcome of civil suits involving downhill skiing is highly variable, as it depends heavily on the facts of each case. It is up to the injured plaintiff to prove the circumstances of his or her fall and to establish that the ski-hill operator was at fault. To the extent that the skier cannot explain the cause of the fall, it will be difficult for him or her to establish the existence of a trap4.

The Quebec Court of Appeal5 has formulated two criteria to use in determining if an obstacle encountered by a skier constitutes a trap, i.e. the abnormality and unforeseeability of the obstacle6. In addition, in order for the ski-hill operator to be found liable, the accident must have been foreseeable by it.

Using these criteria, the courts have determined that an electrical pole bordering the ski run was a visible obstacle and did not constitute a trap7. The same was true of bumps and icy patches on an off-trail run that was not maintained8. In such circumstances, the presence of those features was found not to have exposed the skier to abnormal risks.

Conversely, a court has found that the posts of a fence erected to prevent skiers from falling into a ravine constituted a trap and should have been padded9. Similarly, a low wall and a picnic table bordering a run constituted a trap, and signs should have been posted warning skiers about them10. In both of these cases, it was foreseeable that a skier could collide with these objects and consequently the ski-hill operator should have taken reasonable measures to alert skiers to their presence.

In the case at issue, the Plaintiffs maintained that the mere fact that Lessard's right ski got stuck and went vertical was abnormal and ipso facto demonstrated that there was a trap on the trail. However, the exact cause of the fall could not be established, or what the trap consisted of.

By doing so, the Plaintiffs were confusing the result with a fault by characterizing the fall as abnormal. But it is not the abnormality of the fall that is relevant, but the circumstances that led to it (the presence of the obstacle). The Court rightly concluded that the situation did not involve a trap and that the risk involved was one of the foreseeable and inherent risks in the sport of downhill skiing.

Both the entity responsible for the premises where sports are being carried on and the members of its staff must take reasonable measures to ensure the safety of users of those premises and prevent foreseeable accidents. For their part, participants in a sport must take due care when using such premises and accept the risks inherent in the activity they engage in.

Despite a fault-free conduct of each of the parties, the risk of an accident can never be excluded, even when the conditions for engaging in a sporting activity are ideal.

The authors would like to thank Alice Boivinet, articling student, for her contribution to this article.

Footnotes

1 2016 QCCS 4368

2 The evidence did not show any inadequacy in how the run had been prepared. Moreover, no witness had noted any irregularity in the surface of the run.

3 While the bindings of Lessard's skis had been improperly adjusted by the Boutique, the evidence did not show that this was in any way related to the accident.

4 Munday v. Ski Bromont.com, s.e.c., 2013 QCCS 6256

5 2735-3861 Québec Inc. (Centre de ski Mont-Rigaud) v. Wood, 2008 QCCA 723

6 Ibid., paragraph 18.

7 Parenteau v. Ski Bromont.com, 2014 QCCS 3433; Corbeil v. Mont St-Sauveur International, 2013 QCCS 1561 Il importe de souligner que dans les deux cas, le tribunal souligne l'expérience du skieur.

8 Dubé v. Domaine de ski Mont Bruno Inc., 2005 CanLII 23658 (QCCS)

9 Weidemann v. Intrawest Resort Corp./Corp. de villégiature Intrawest, [2000] R.R.A. 353 (S.C.)

10 Newcomb v. Station Mont-Tremblant Inc., J.E. 2005-2242 (C.S.)

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 Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Samuel Gagnon
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.