Canada: Liability Waivers And The Art Of Skiing

Last Updated: February 27 2018
Article by Peter J. Roberts

The recent Olympic coverage of ski-cross and slope style events in PyeongChang, combined with a cold snap and snow across B.C. (even in Vancouver), will likely inspire skiers and snowboarders to try some extreme moves of their own on the slopes. However, before launching yourself off a cliff to mimic an Olympian, it might be worth considering the legal context of such extreme sports activities. As most people would concede, and the courts have often noted, skiing and snowboarding are inherently dangerous activities. As a result, ski hill operators and event organizers have gone to great lengths to insulate themselves from liability when you decide to ski off a cliff or snowboard into a snow plow. They do this by means of the release and waiver of liability terms that are the small print on your day ticket. A quick review of recent cases where those liability exclusions came into play will serve as a reminder to be cautious out on the slopes.

In a 2016 decision, the court relied on a liability waiver in dismissing the claim of a 51 year old skier who fell down a steep chute on Whistler after hitting a patch of ice. The plaintiff had been taken to this "challenging place to ski" as part of a ski lesson. Even though the plaintiff alleged "gross negligence," the court found that the release:

... is drafted in such a way as to include nearly every conceivable form of neglect or want of duty that might be imposed on Whistler Blackcomb.

The critical factor in this case was the finding that the plaintiff, despite being in very challenging terrain "at the top of his abilities," it was nonetheless a run that "he was sure that he could [do]."  This meant that, in the judge's words, that the plaintiff made "a clear assumption on his own part of the risk of doing what he did."

In another recent case, a snowboarder at Big White was returning to his cabin for lunch along the trail "Highway 33," a route he had travelled many times. The trail normally ended, by way of a gentle slope, into a parking lot adjacent to the cabin. On this particular day, however, a snow plow operated by Big White had cleared the parking lot and created "a sheer ten foot drop" at the end of the trail. As a result, the snowboarder fell off the cliff into the parking lot, badly hurting himself. He sued the mountain.  Big White argued that the waiver and release of liability provisions on their ticket insulated them from this claim. The court agreed and dismissed the case. In doing so, the court found that Big White's failure to close the trail and creating the "sheer drop" in the first place was negligent.  However, the court went on to find that the risk created by Big White's negligence "fell within the scope of the waiver." Put more directly, the court found "it would have been entirely unreasonable for [the snowboarder] to expect [Big White] to be looking out for [his] well-being." 

Liability waivers have also been used to dismiss injury claims in other "high risk" sports. For example, the B.C. and Ontario courts have both thrown out the claims of injured zipliners, even in contexts where the customer bears no fault whatsoever. In Loychuk, one plaintiff was sent down the zipline but did not make it all the way to the end. As she hung on the line, the operator sent another guest, the second plaintiff, down the line with the inevitable result that the two collided. The operator, Cougar Mountain Adventures Ltd., admitted its negligence but argued the liability waiver precluded the claims. The court agreed. 

In Jamieson v. Whistler Mountain, a mountain biker using Whistler's down-hill bike park was badly injured when his tire was caught in a feature and he was thrown over the handlebars down the "A-Line Rock Drop".  His negligence claim that Whistler had failed to adequately warn him of the dangers was dismissed.  The court found that the release signed was broad enough to cover the injuries the plaintiff had suffered.  The court also found that the plaintiff knew those types were possible. 

More recently, in Alton v. Lower Mainland Motocross, a biker was injured after being thrown from his motorcycle during a race after his wheels got caught in separate tracks. Among other things, he argued the releases did not specifically mention the injuries he suffered (being impaled). His claim against the track owner and the racer organizers was dismissed on the grounds of the releases he had signed before participating in the race. The court found that, though the plaintiff had not read the release, they were reasonably brought to his attention and a "reasonably careful reader would have realized the significance of the waivers." The court also noted that to be effective, waivers do not need to list the precise types of injuries that may be suffered provided that the injury falls within categories covered by the waiver.

So, by all means enjoy your time on the slope but remember that you are essentially on your own out there when it comes to being responsible for avoiding the many risks that exist on the ski hill.

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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Peter J. Roberts
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