In March 2020, the British Columbia Court of Appeal [CA] released its decision in Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78. The decision overturned an order dismissing claims based on negligence, breach of contract, and breach of the BC Occupiers Liability Act [OLA]. The CA held Grouse could not rely on a waiver purporting to exclude liability for Grouse's own negligence because Grouse had failed to take reasonable steps to bring the waiver to the plaintiff's attention.
Background
The plaintiff, Jason Apps, was snowboarding at Grouse Mountain in March 2016 when he crashed on an 'XL' jump in the terrain park, suffering a serious spinal injury. Apps sued Grouse for damages, alleging, among other things, negligence in the jump's construction.
The OLA places a duty on occupiers of premises such as Grouse to take care that users of the premises are "reasonably safe" (s 3(1) OLA). An occupier can contract out of this statutory duty, but to do so, it must take "reasonable steps" to bring the exclusion of liability to the attention of users (s 4(1) OLA).
Grouse brought a preliminary motion for summary dismissal of Apps' claim, relying on an exclusion of liability notice posted above the ticket booth where Apps purchased his lift ticket, on the ticket itself, and on warning signs in the terrain park. Apps denied having read any of these.
The exclusion of liability included a waiver of liability for Grouse's own negligence [the 'own negligence waiver']. The motions judge granted Grouse's motion and dismissed the claim. However, on Apps' appeal, a three-member panel of the CA unanimously overturned lower court's decision.
Lower Court Decision
The motions judge held Grouse did enough to bring the own negligence waiver to Apps' attention to meet the 'reasonable steps' threshold under the OLA. The judge based this conclusion on a combination of factors: Grouse had posted the exclusion of liability on a poster above the ticket booth, on the back of the lift ticket, and on signs posted at the entrance to the terrain park.
Additionally, the judge considered Apps' experience at a nearby ski resort, Whistler Blackcomb, where he was a season's pass holder and worked as a ski and snowboard technician at the equipment rental shop. To purchase his Whistler season's pass, Apps had signed an agreement including an exclusion of liability. Further, as part of his job as an equipment technician, he was trained to obtain customer signatures on equipment rental agreements that included a release of liability notice.
Apps denied having ever read these provisions. Nevertheless, the judge viewed this experience as relevant: "[t]he notices at Whistler Blackcomb look similar to the signs at Grouse and use virtually identical language. The conditions are standard for ski hills. A reasonable person would expect the mountains to have similar waivers."
The notices posted by Grouse and Apps' experience at Whistler, taken together, were enough, in the judge's view, to satisfy the 'reasonable steps' requirement under the OLA. As a result, the judge held Grouse was able to rely on the exclusion clause and dismissed Apps' claims.
Court of Appeal Decision
Apps raised two issues on the appeal. First, the timing issue: whether the judge could consider steps taken by Grouse to bring the own negligence waiver to Apps' attention after the ticket was purchased (i.e. the notice posted at the entrance to the terrain park). Second, the pre-contract experience issue: whether the judge was right to consider Apps' experience with similar exclusion clauses at Whistler.
Issue 1: Timing of Notice
The CA held that by considering the post-contractual notice in deciding whether Grouse had taken reasonable steps to bring the waiver to Apps attention, the judge had conflated two distinct questions. First, whether Grouse gave reasonable notice of the risks and hazards of using the XL jump, and second, whether Grouse gave reasonable notice of the exclusion of liability.
The first question is relevant to Grouse's duty to take reasonable steps to keep its users reasonably safe, whereas the second question is relevant to Grouse's exclusion of liability for breach of that duty.
The terrain park sign was relevant to the first question, as it contained warnings of the dangerous nature of using the jumps. However, because the terrain park sign only came to the attention of users after the ticket was purchased, it could not be part of the reasonable steps taken by Grouse to bring the exclusion of liability to users' attention.
The CA's conclusion confirms ski hill tickets are not an exception to the settled rule of law that a party seeking to rely on an exclusion clause must bring the clause to the attention of the other party before or at the time the contact was made.
Next, the CA held Grouse had not taken reasonable steps to bring the exclusion of liability, and the own negligence waiver, to Apps' attention. This was based on the judge's findings of fact, namely:
- the ticket booth sign was "difficult to read";
- the own negligence waiver was "not highlighted or emphasized in any way", but was buried in small print among many commas and semi-colons; and
- "It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign."
The judge had found these deficiencies were overcome when the various steps taken by Grouse, including the terrain park sign, were considered together. However, when the terrain park sign was removed from consideration, the CA held these deficiencies were fatal to Grouse having met the 'reasonable steps' threshold.
The CA noted that the more onerous the exclusion clause, the more explicit the notice must be. The own negligence waiver was a particularly onerous exclusion, and therefore its notice needed to be especially clear and emphatic. Grouse failed to meet this bar.
Issue 2: Pre-contract Experience
Since Grouse failed to take reasonable steps to bring the own negligence waiver to Apps' attention, the only way the waiver could be effective is if it were shown that Apps nevertheless had sufficient notice because of his pre-contract experience with similar clauses at Whistler. This argument was rejected by the CA.
Because Apps signed the Whistler seasons' pass agreement, he was presumed to have read it. However, he testified that he did not actually read the exclusion clauses in the season's pass agreement or any other Whistler agreement. The CA refused to apply the presumption created by Apps' signature on the Whistler season's pass agreement in favour of Grouse. Only proof of actual knowledge of the Whistler exclusion clauses would have aided Grouse – there was no such proof.
Conclusion
Following the CA's decision, the dispute will return to the lower court for a full trial of Apps' claims. However, there are three key takeaways from the CA's decision:
- A ski resort must take steps to bring an exclusion of liability to the attention of resort users before or at the time of ticket purchase. Exclusion notices coming after the ticket has been purchased are not effective.
- Especially for more onerous exclusions clauses such as a waiver of liability for the ski resort's own negligence, the notice must be clear and emphatic. Putting the waiver in a hard-to-read paragraph in relatively small font with many commas and semi-colons is not enough.
- Ski resorts will generally not be able to rely on a resort user's experience with exclusion clauses at another resort, at least where the user does not have actual knowledge of the other resort's exclusion(s).
The author would like to acknowledge the support and assistance of Joseph Wenig, articling student at law
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