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The Limitation Clause in a Limited Liability Release

December 16, 2021

Nova Scotia

,

Canada

Issue

In what circumstances is a waiver on a ski hill ticket unenforceable?

Conclusion

In deciding whether to give effect to a limitation or exclusion clause the Court must consider: (1) whether the parties intended at the time of contract that the exclusion clause would apply in these circumstances; (2) whether the clause was unconscionable at the time the contract was made; and (3) whether an overriding public policy would preclude its enforcement. (Tercon Contractors Ltd. v. British Columbia (Transportation and Highways))

A person is bound by a signed release unless one of the following circumstances exist:

Non Est Factum – The signer, through no carelessness on his or her part, is mistaken as to the document’s nature and character;

• Fraud or Misrepresentation – The signer is induced to sign the contract by fraud or misrepresentation;

• Objective Lack of Consensus Ad Idem - Where it is unreasonable for a person relying on the signed contract to believe that the signer really did assent to its terms;

• Unconscionable – was the contract formed in unconscionable circumstances;

• Public Policy – There is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts. (Arif v Li)

There may be situations where the negligence complained of could not have reasonably been contemplated by the plaintiff at the time a waiver was signed, thereby falling outside the scope of a waiver. (Downs v. Georgian College)

In Morgan v. Sun Peaks Resort Corporation, the plaintiff fell over while waiting to board a chair lift at a ski resort. The operator tried to stop the lift, but before the machine could come to a stop the next chair ran over the plaintiff. When buying her ski pass, the plaintiff had been presented with a liability release which she signed. The plaintiff signed at the end of the document, but also initialed next to a box outlined in red and yellow which announced that the document was a liability waiver and that by signing she would waive legal rights, including the right to sue. The Court found that the defendant took reasonable steps to bring the release to the plaintiff's attention and concluded that the plaintiff was bound by its terms. The next issue was whether the terms of the release covered the incident that occurred. The Court concluded that the release, which included clauses that applied in the case of operator negligence, was sufficiently broad to encompass the plaintiff's claim. The plaintiff's claim was dismissed.

In Pelechytik v. Snow Valley Ski Club, the plaintiff was attempting to use a handle tow to go up the hill at a ski resort. While standing in position waiting for the next handle, he was struck behind the knee by a handle which, instead of hanging straight down from the rope, was improperly in a horizontal position. He suffered a complete anterior cruciate ligament tear. The plaintiff brought an action alleging that the defendant, Snow Valley, was negligent in its maintenance, operation, and supervision of the handle tow. The front of the lift ticket that the plaintiff had purchased to ski at Snow Valley contained an exclusion of liability. Snow Valley, relying on the exclusion, sought summary dismissal of the plaintiff's claim. The Court stated that as long as reasonable steps are taken to alert the visitor to the waiver clause the ski resort could rely on the terms of the waiver. However, the Court found that it was not plain and obvious that the defendant took reasonable steps to alert the plaintiff to the waiver clauses or that the plaintiff agreed to forego his legal right to bring an action. In addition, it was not clear that the phrase "use of the ski lifts" in the waiver would exclude liability for mechanical breakdown of lift equipment or for injuries caused by faulty, defective or improperly maintained, or operated lift equipment. The Court concluded that summary dismissal was not appropriate and the defendant's application was dismissed.

In Karroll v. Silver Star Mountain Resorts, the plaintiff broke her leg while participating in a downhill ski competition at the Silver Star ski resort. The injury happened when she collided with another skier. Prior to the competition, the plaintiff signed a waiver releasing Silver Star and its agents from liability for any injuries sustained in the race. The plaintiff argued that she should not be bound by the waiver since she did not have enough time to read it. The Court found that the plaintiff would be bound by the release unless she could show that in the circumstances a reasonable person would believe she did not intend to agree to the release she signed and that the defendant failed to take reasonable steps to bring the content of the release to her attention. The Court concluded that the plaintiff failed to establish either of these exceptions and she was therefore bound by the release.

In Brown v. Blue Mountain Resort Ltd., the plaintiff was injured when she came across a slushy patch of snow which she claimed was the result of the defendant's negligence in operating the snowmaking machine. The defendant argued that a waiver, printed on the tickets of admission to Blue Mountain and prominently posted at the ticket windows and elsewhere on the premises, constituted a bar to the action. Keenan J. dismissed the defendant's motion for summary judgment as there was a real and genuine issue as to whether unexpected hazards were covered by the waiver.

In Wilson et al. v. Blue Mountain Resorts Ltd., the Court found that a gully with a stream crossing the bottom of a sloping trail which could not be seen until the lip of the gully had been reached was an unusual danger. The defendant occupier, having failed to post adequate warning of the danger, was liable to a skier who was injured when using the trail for the first time. Prior to the accident, the plaintiff had purchased a book of tow tickets. On the back of the ticket, sandwiched between the words “not transferable” and “not refundable”, which appeared in fairly large print, was a waiver. The defence of volenti was also rejected, since the Court had found as a fact that, prior to the accident, the plaintiff had not known of this unusual danger.

In Champion v. Ski Marmot Basin, the plaintiff skier was injured in a fall from a T-lift at a facility operated by the defendant ski area operator. The lift ticket at the ski area contained a waiver of liability and signs posted around the ski area similarly noted the assumption of risk by skiers. On the day in question, the lift track was icy and had not been groomed or roughened. The defendants moved for summary judgment for dismissal of the plaintiff's action in negligence on the basis that the waiver of liability was a complete defence to the negligence claim. The motion for dismissal of the action against the operator was dismissed. The Court held that the operator failed to establish that no triable issue existed. Although the operator took reasonable steps to alert the skier to the waiver terms, the scope of the waiver did not necessarily cover the alleged negligence in maintaining and grooming the lift track. The issue of whether the hazard created by the alleged negligence was the type contemplated by the terms of release was a genuine issue for trial.

In Cejvan v. Blue Mountain Resorts Ltd., the plaintiff snowboarder collided with a hydrant at the defendant resort. The Court upheld the enforceability of the exclusion of liability and waiver printed on the back of the lift ticket. The plaintiff argued that the defendant's failure to adequately mark a hidden and unexpected hazard which is known to it was a fundamental breach such that the defendant was unable to rely on the exclusion of liability. The increased risk in this case was not what the plaintiff expected to contractually assume. The Court found that the defendant specifically and knowingly failed to clear a marker indicating the presence of an object located immediately adjacent to or at the margin of the groomed trail before it permitted the plaintiff to use the trail and thereby increased the risk of accident to a skier. Further, given that all other markers in the area were both visible and randomly located and that this marker was completely hidden from view to a downhill skier on approach, it would be unreasonable for a skier to have anticipated the existence of a man-made object such as snow making equipment behind the snow mound. It also found, however, that the increased risk of accident would only be to a skier who was not abiding by the Alpine Responsibility Code and had left the groomed portion of the trail and entered into an area not intended for skier use. In the alternative, the Court was of the opinion that liability for the conduct of the defendant was excluded by virtue of the wording of the exclusion of liability and waiver.

In Trimmeliti v Blue Mountain Resorts Limited, the plaintiff fractured his collar bone while night skiing at the defendant's resort when he collided with a fluorescent orange ribbon used to close a run. The defendant sought a summary judgment and relied upon limitations of liability and waivers contained in a contract between the plaintiff and the defendant under which the plaintiff obtained access to the ski hill. The Court ruled that the terms of the contract provided the defendant with a full answer to the statement of claim and warranted a dismissal of the action. The Court ruled that the defendant took plenty of steps to bring the waiver to the plaintiff's attention. In addition, there was no pleading of non est factum or any of the other exceptions that might render the waiver unenforceable.

Law

In Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), [2010] 1 SCR 69, 2010 SCC 4 (CanLII), in the context of building contracts, Cromwell J. discussed the factors a Court must consider when deciding whether to give effect to a limitation or exclusion clause:

[121] The present state of the law, in summary, requires a series of enquiries to be addressed when a plaintiff seeks to escape the effect of an exclusion clause or other contractual terms to which it had previously agreed.

[122] The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court’s assessment of the intention of the parties as expressed in the contract. If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis. If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties” (Hunter, at p. 462). This second issue has to do with contract formation, not breach.

[123] If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.

In Arif v Li, 2016 ONSC 4579 (CanLII), in the context of a summary judgment motion to dismiss the plaintiff's claim of negligence against the defendants, Faieta J. summarized the situations in which a waiver will not be enforceable as follows:

[50] A review of the case law shows that a person is bound by a signed release unless one of the following circumstances exist:

Non Est Factum – The signer, through no carelessness on his or her part, is mistaken as to the document’s nature and character;[6]

• Fraud or Misrepresentation – The signer is induced to sign the contract by fraud or misrepresentation;[7]

• Objective Lack of Consensus Ad Idem - Where it is unreasonable for a person relying on the signed contract to believe that the signer really did assent to its terms;[8]

• Unconscionable – was the contract formed in unconscionable circumstances;

• Public Policy – There is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts.

[51] The Plaintiff did not plead or rely upon non est factum or misrepresentation. There is no dispute that the Plaintiff understood that the two documents that he signed were releases. Similarly, the Plaintiff does not allege that he was induced to sign the Releases by a misrepresentation made by the Defendants.

In that case, the plaintiff brought an action for damages for an injury suffered while rock climbing at the Rattlesnake Point Conservation Area during an introductory rock climbing and rappelling course offered by the defendant. The plaintiff signed two releases prior to participating in the course. During the course, the plaintiff fell off the rock wall from a height of about 2 meters and injured his leg. The plaintiff brought an action for damages against the operator of the course and the owner of the conservation area. The defendants brought a motion for summary judgment to dismiss the action. Faieta J. held that the releases covered the plaintiff's claim. The releases were broad and unambiguous. The words used conveyed to a reasonable person that the plaintiff agreed to release the defendants from all claims for personal injury arising from rock climbing activities. The language of the releases covered all causes of action, including negligence and statutory liability. The action was therefore dismissed:

Do the Releases Cover the Plaintiff’s Claim?

[72] At the outset of this motion, Arif was granted leave on consent of the Defendants to amend his Statement of Claim to plead gross negligence. Arif submits that his damages were a result of the Defendants’ gross negligence. He further submits that the releases do not bar a claim in gross negligence.

Principles of Contractual Interpretation

[73] The goal in interpreting a contract is to discover, objectively, the parties’ intention at the time the contract was made.

[74] The intention of the parties is determined by reading the contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” Accordingly, the interpretation of a contract is a question of mixed fact and law as “… it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.”[15]

[75] “Surrounding circumstances” (also referred to as the “factual matrix”) is limited to any objective evidence of knowledge that was or reasonably ought to have been within the common knowledge of the parties at the time of the execution of the contract. Such knowledge includes “… anything that would have affected the way in which the language of the document would have been understood by a reasonable man.”[16] It includes the purpose of the contract, its background and the relationship between the parties, but it does not include the previous negotiations of the parties or their declarations of subjective intent.

[76] The principle that words should be given their ordinary and grammatical meaning “… reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes particularly in formal documents.”[17] The interpretation of a contract “… must always be grounded in the text and read in light of the entire contract.” The surrounding circumstances cannot be used “…to deviate from the text such that the court effectively creates a new agreement.”[18] Evidence of the surrounding circumstances of a contract is only “… an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words”. However, such evidence may enable the court to choose between the possible meanings of a contract by avoiding an interpretation that leads to an “unrealistic result” in favour of a “commercially sensible result.”

[77] If there is an ambiguity in the meaning of a contract despite the application of the above principles, then the ambiguous words used will be construed against the author of the contract if the other contracting party did not have an opportunity to modify its wording.

Conservation Halton Release

[78] The Conservation Halton Release is quite broad. It is entitled “Individual Waiver of Public Liability.” It states that any person engaging in the sport of rock climbing is doing so “at their own risk.” It also provides that the undersigned “releases and forever discharges [Conservation Halton] “…from all manner of action, causes of action, suits, claims, or demands of whatsoever nature or kind against [Conservation Halton] … by reason of personal injury … arising out of the participation of the undersigned in such activities or instructional program at the Rattlesnake Point Conservation Area.” [Emphasis added.]

[79] In my view, the Release is unambiguous. The words used in the Release convey to a reasonable person that Arif had agreed to release Conservation Halton from all claims for personal injury arising from his rock climbing activities at Rattlesnake Point. The language of the Release covers all causes of action, which include negligence and statutory liability. I am not persuaded that “gross negligence” is a separate cause of action from negligence. Regardless, gross negligence is covered given that it comes within the scope of the phrase “all manner of action, causes of action, suits, claims or demands of whatsoever nature or kind.”

Zen Club Release

[80] The Zen Club Release is quite broad as well. It is entitled “Release of Liability, Waiver of Claims and Assumption of Risks and Indemnity Agreement.” It defines “wilderness activities” to include hiking and rock climbing. It states that “… I agree to … WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE RELEASEES from any and all liability to the fullest extent permitted by law for any loss, damage, expense or injury including death that I … may suffer … as a result of my … participation in wilderness activities DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, OWED UNDER ANY APPLICABLE OCCUPIERS’ LIABILITY LEGISLATION IN THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE.”

[81] In my view, the Zen Climb Release is also unambiguous. Once again, the ordinary meaning of the words used in the Release would convey to a reasonable person that Arif had agreed to release Zen Climb from all claims for personal injury arising from his rock climbing activities at Rattlesnake Point, from any and all liability for any injury that he may suffer as a result of his participation in rock climbing activities due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care. In my view, a claim of gross negligence would come within the scope of the above Release.

Conclusions

[82] For the above reasons I find that the Plaintiff raises no genuine issue requiring a trial regarding whether the Releases are a complete defence to the Plaintiff’s claim in that there is no genuine issue that the Plaintiff is bound by the Releases and that the scope of the Releases covers the alleged wrongful conduct of the Defendants. In reaching this conclusion I place no weight on the website registration notice, the notice on the reverse side of the parking receipt notice or the Posted Notice as the evidence is that none of these notices came to the Plaintiff’s attention.

In Downs v. Georgian College, 2008 CanLII 63205 (ON SC), in the context of a summary judgment motion, Fragomeni J. considered the applicability of a waiver where the accepted negligence complained of was not contemplated by a plaintiff at the time the waiver was signed:

[10] I acknowledge and accept the proposition that there may be situations where the negligence complained of could not have reasonably been contemplated by a plaintiff at the time a waiver was signed thereby falling outside the scope of a waiver. This issue was considered in Dyck v. Man Snowmobile Assn. Inc., 1985 CanLII 27 (SCC), [1985] 1 S.C.R. 589. In Dyck the plaintiff was injured when his snowmobile clipped the defendant, who was standing in the middle of the track to signal the end of the race and the plaintiff then struck a wall. At paragraph 8 the Court stated:

8 Counsel for the appellant also attempted to avoid the effect of the waiver clause on various grounds ultimately based on the thesis that it was unfair, unreasonable and inapplicable to the accident. One such ground was that the conduct of Wood in standing where he did on the track constituted negligence of a kind that was radically different from anything reasonable men could have contemplated. But surely this was precisely the type of negligence contemplated by the exclusion clause. This is underscored by the evidence which reveals that Wood's actions, though found to be negligent by the trial judge and the Court of Appeal, are not regarded as unusual by persons involved in snowmobile racing.

[11] The Supreme Court held that the defendant’s negligent act fell within the scope of the waiver.

[12] The issue before me, therefore, is whether the alleged negligence of Georgian College fell within the category of exclusions discussed in Dyck. The waiver protects Georgian College from any claims for any injuries “howsoever arising out of the fitness testing engaged in by [Downs] as part of the aforesaid fitness process”. (Tab F), and at Tab G:

… from all claims, demands, costs, expenses, actions or causes of actions that may arise from my participation in such programs.

[13] Downs’ injuries arose out of the fitness testing and the alleged causes of those injuries are set out at paragraph 6 of his claim.

In that case, the plaintiff was injured while participating in a fitness course for the Paramedic Program at Georgian College. Downs vaulted over a wall while maneuvering through an obstacle course, slipped on a loose mat and landed on one foot, injuring his foot and ankle. The defendant, Georgian College, moved for summary judgment dismissing the action of the plaintiff on the basis that the plaintiff's action is barred by a waiver. Fragomeni J. dismissed the summary judgment on the grounds that the release and waiver signed by the plaintiff is predicated on the fact that the obstacle course would be properly set up and maintained:

[14] Downs was entitled to proceed with an obstacle course he assumed was properly set up for the fitness testing component of the Georgian College Paramedic Program. He was entitled to rely on the instructor to properly set up the obstacle course and make sure that it continued to be properly set up for the duration of the time it was being used. The release and waiver signed by Downs is predicated on the fact of a properly set up and maintained obstacle course. Therefore, the factual determinations relating to those issues are matters for the trial judge.

[15] Further, whether there is a direct link between the set up and maintenance of the obstacle course to his injuries relates to the issue of causation. That issue may be dependent on expert evidence and a determination of that issue can only be resolved by the trial judge.

[16] In all of the circumstances of this case, therefore, I am not satisfied that the issue of whether the negligence complained of falls within the scope of the release and waiver signed, can be determined on a summary judgment motion. I am satisfied that there is a genuine issue for trial as to whether the Release and Waiver applies in this case.

In Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (ON SC), the plaintiff was injured when she came across a slushy patch of snow which she claimed was the result of the defendant's negligence in operating the snowmaking machine, creating an unexpected hazard. In seeking summary judgment, the defendant argued that a waiver, printed on the tickets of admission to Blue Mountain and prominently posted at the ticket windows and elsewhere on the premises, constituted a bar to the action. Keenan J. dismissed the defendant's motion for summary judgment as there was a real and genuine issue as to whether unexpected hazards were covered by the waiver:

[15] It is obvious that Ms. Brown’s claim against Blue Mountain is for compensation for injuries suffered by her due to hazards which were unexpected and which would not normally occur on a ski facility. Those hazards are said by her to have resulted from, or been caused by, the negligence of Blue Mountain in the care and maintenance of their snow-making equipment. Her claims are caused by the failure of Blue Mountain to adequately police those self-made hazards and to protect the paying customers from the exposure to those risks by properly policing and blocking off any area which is dangerous to the skier and caused by the negligence or inefficient operation of the equipment of Blue Mountain.

[16] The plaintiffs contend that this kind of negligence on the part of Blue Mountain is not contemplated nor could it be considered as part of the flavour that is printed on the tickets and posted elsewhere on the Blue Mountain property.

[17] I have to conclude that there is a real and genuine issue to be tried in this case, and that the plaintiffs have provided adequate preliminary evidence and argument to show me that there is a real issue to be tried. This is not a case for summary judgment in favour of the defendant, Blue Mountain. The issues of negligence and the waivers of liability are matters to be determined at trial. The motion for summary judgment is dismissed with costs.

In Karroll v. Silver Star Mountain Resorts, 1988 CanLII 3094 (BC SC), the plaintiff broke her leg while participating in a downhill ski competition at the Silver Star ski resort. The injury happened when she collided with another skier. Prior to the competition, the plaintiff signed a waiver releasing Silver Star and its agents from liability for any injuries sustained in the race. The plaintiff argued that she should not be bound by the waiver since she did not have enough time to read it. The Court found that the plaintiff would be bound by the release unless she could show that in the circumstances a reasonable person would believe she did not intend to agree to the release she signed and that the defendant failed to take reasonable steps to bring the content of the release to her attention. The Court concluded that the plaintiff failed to establish either of these exceptions and she was therefore bound by the release:

[24] Applying these rules to this case, we start from the fact that Miss Karroll signed the release knowing that it was a legal document affecting her rights. Under the principles set forth in L'Estrange v. F. Graucob Ltd., she is bound by its terms unless she can bring herself within one of the exceptions to the rule. This is not a case of non est factum. Nor was there active misrepresentation. It follows that Miss Karroll is bound by the release unless she can establish: (1) that in the circumstances a reasonable person would have known that she did not intend to agree to the release she signed; and (2) that in these circumstances the defendants failed to take reasonable steps to bring the content of the release to her attention.

[25] Were the circumstances of the signing such that a reasonable person should have known that Miss Karroll did not intend to agree to what she signed? I think not. First, the release was consistent with the purpose of the contract. As in Delaney, the purpose of the contract was to permit Miss Karroll to engage in a hazardous activity upon which she, of her own volition, desired to embark. The exclusion of legal liability was consistent with the purpose of permitting her and others to engage in this activity, while limiting the liability of the organizations which made the activity possible.

[26] Second, the release was short, easy to read and headed in capital letters "RELEASE AND INDEMNITY - PLEASE READ CAREFULLY". The most casual glance would reveal to a reasonable person that this was a legal document calculated to release those staging the race from liability. There was no fine print. The printing was entirely contained by the page signed. This was not a case of a release buried in the fine print of a long document, but of a release that proclaimed its purpose in bold letters. In sum, the nature of the document does not give rise to the suggestion that a person signing would not be in agreement with its terms.

[27] Third, it emerges from the evidence that signing such releases was a common feature of this ski race. Miss Karroll herself had signed such releases on previous occasions before similar races. This was not an unusual term; on the contrary, it was a standard aspect of this type of contract.

28] These facts negate the inference that a reasonable person in the defendant Silver Star's position would conclude that Miss Karroll was not agreeing to the terms of the release. In these circumstances, it was not incumbent on Silver Star to take reasonable steps to bring the contents of the release to her attention or ensure that she read it fully.

[29] If I were wrong in this conclusion, I would nevertheless find that Silver Star took reasonable steps to discharge any obligation to bring the contents of the release to the attention of Miss Karroll. I have already referred to the heading at the top of the document, and the capitalized admonition to read it carefully. This was sufficient to bring the need to read the document to the attention of a reasonable person. Miss Karroll admitted that she could have read the release in one to two minutes. She further admitted that she could not recall if she had an opportunity to take one or two minutes to read through the document. Thus the evidence fails to establish that she was not given sufficient time to peruse the document had she wished to do so. These facts fall far short of those which established lack of reasonable efforts to bring the term to the signator's attention in Tilden Rent-A-Car v. Clendenning.

In Wilson et al. v. Blue Mountain Resorts Ltd., 1974 CanLII 562 (ON SC), the Court found that a gully with a stream crossing the bottom of a sloping trial which could not be seen until the lip of the gully had been reached was an unusual danger. The defendant occupier, having failed to post adequate warning of the danger, was liable to a skier who was injured when using the trail for the first time. Prior to the accident, the plaintiff had purchased a book of tow tickets. On the back of the ticket, sandwiched between the words “not transferable” and “not refundable”, which appeared in fairly large print, was the following in small print:

The holder of this ticket as a condition of being permitted to use the facilities of the area agrees: (1) to assume all risk of personal injury or loss of or damage to property:
(2) that this ticket may be revoked without refund at any time by the management for misconduct of or nuisance caused by the holder.

The Court accepted the plaintiff's evidence that he had not read the small print in the exclusion on the back of the tow tickets and did not remember whether he had read any limitation of liability clauses on tickets issued by other ski resorts. There was no evidence to show that the wording on the back of the tow tickets had been brought to his attention. In these circumstances, the Court could not find that the defendant had successfully contracted out of liability. The defence of volenti was also rejected, since the Court had found as a fact that, prior to the accident, the plaintiff had not known of this unusual danger:

It was further pleaded as a defence to the action that Wilson knew and appreciated the condition of the area where he fell and assumed the risk of skiing there. I have already found as a fact that prior to the accident he did not know of the gully. Skiing is well recognized as a dangerous sport and anyone taking part in such sport must, I would think, accept certain dangers which are inherent in such sport in so far as such dangers are obvious or necessary. The gully, in the case at hand, was not such an obvious or necessary danger and Wilson without knowledge of the existence of the gully across his path cannot be taken to have accepted the risk of injury by falling into the gully. The burden is upon the defence of proving that Wilson expressly or by necessary implication agreed to exempt the defendant from liability for any damage suffered by Wilson occasioned by the negligence of the defendant or of those for whom the defendant is responsible: see Hanson et al. v. City of Saint John et al., 1973 CanLII 145 (SCC), [1974] S.C.R. 354, 39 D.L.R. (3d) 417, 6 N.B.R. (2d) 292, and Lehnert v. Stein, 1962 CanLII 85 (SCC), [1963] S.C.R. 38, 36 D.L.R. (2d) 159, 40 W.W.R. 616. See also the decision of Madam Justice Van Camp in Fink et al. v. Greeniaus, unreported, delivered May 15, 1973 [since reported 1973 CanLII 777 (ON SC), 2 O.R. (2d) 541, 43 D.L.R. (3d) 485], which latter case involved a collision between two skiers. Madam Justice Van Camp there found that here was no evidence to support a finding that the plaintiff had voluntarily assumed the risk of the negligence that she found against the other skier involved, that there was no express agreement to assume the risk nor could she imply it from the mere presence of the plaintiff on the slopes.

In Champion v. Ski Marmot Basin, 2005 ABQB 535 (CanLII), the plaintiff skier was injured in a fall from a T-lift at a facility operated by the defendant ski area operator. The lift ticket at the ski area contained a waiver of liability and signs posted around the ski area similarly noted the assumption of risk by skiers. On the day in question, the lift track was icy and had not been groomed or roughened. The defendants moved for summary judgment for dismissal of the plaintiff's action in negligence on the basis that the waiver of liability was a complete defence to the negligence claim. The motion for dismissal of the action against the operator was dismissed. The Court held that the operator failed to establish that no triable issue existed. Although the operator took reasonable steps to alert the skier to the waiver terms, the scope of the waiver did not necessarily cover the alleged negligence in maintaining and grooming the lift track. The issue of whether the hazard created by the alleged negligence was the type contemplated by the terms of release was a genuine issue for trial:

[19] The terms of the waiver include all damage “resulting from any cause whatsoever including... the use of ski lifts... or negligence....” The ski area operators claim that the negligence Champion alleges is clearly captured by these terms. Champion argues that he could not have accepted the risk of injury from the unusually icy and poorly maintained conditions of the track, because he could not have foreseen that risk; in his numerous previous visits, he had never encountered similar dangers.

[20] In the case of Brown v. Blue Mountain Resort Ltd., [2002] O.J. No. 3650 (Sup. Ct. Jus.) [Brown], an Ontario court considered the scope of a ski resort’s waiver. That waiver was, in all essential respects, identical to the one in the case at bar. The plaintiff was injured when she skied into a patch of slushy snow, allegedly a result of the resort’s negligence in maintaining and operating its snow-making machine. She argued that this hazard was not one which would normally occur at a ski facility, and that negligence of this type was not contemplated by the terms of the release. The Court accepted that this argument raised a genuine issue for trial.

[21] Champion’s arguments are very similar. He claims that the ski area operators were negligent in maintaining and grooming the lift track, and that the hazard created by this negligence was not one normally encountered. Following Brown, supra, this is a genuine issue for trial. The ski area operators’ motion for summary judgment on the waiver of liability issue is denied.

In Cejvan v. Blue Mountain Resorts Ltd., 2008 CarswellOnt 9269 (ONSC), the plaintiff snowboarder collided with a hydrant at the defendant resort. The Court upheld the enforceability of the exclusion of liability and waiver printed on the back of the lift ticket. The plaintiff argued that the defendant's failure to adequately mark a hidden and unexpected hazard which is known to it was a fundamental breach such that the defendant was unable to rely on the exclusion of liability. The increased risk in this case was not what the plaintiff expected to contractually assume. The Court found that the defendant specifically and knowingly failed to clear a marker indicating the presence of an object located immediately adjacent to or at the margin of the groomed trail before it permitted the plaintiff to use the trail and thereby increased the risk of accident to a skier. Further, given that all other markers in the area were both visible and randomly located and that this marker was completely hidden from view to a downhill skier on approach, it would be unreasonable for a skier to have anticipated the existence of a man-made

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