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A Commentary Concerning the Enforceability of a Release of Liability

Victor Lewin - Monday, July 07, 2014

In Neidermayer v Charlton, 2014 BCCA 165, the plaintiff, Karen Neidermeyer, was spending time in British Colombia when she was injured in a bus accident. Ms. Neidermeyer and her students were visiting from Singapore, and decided to take part in a zip line experience near Whistler village. In order to get to the zip line course, participants were expected to take a bus, which travelled up a logging road on the side of a mountain. Before embarking, and as a condition of participation, all guests were required to sign a "Release of Liability, Waiver of claims, Assumption of Risk and Indemnity Agreement". The release included clauses that precluded liability for certain types of claims including liability for damages arising from "travel to and from the tour areas" and "back country travel". As this was a condition of her participation, Ms. Neidermeyer signed the release for herself and her students.

The waiver became an issue after the bus went off the road, causing injuries to the plaintiff. The accident was found to be caused by the driver's negligence and Ms. Neidermeyer brought an action for personal injury.

In their argument, Ziptrek raised the signed release as a full defense to Ms. Neidermeyer's claim. The trial judge agreed with this and dismissed the claim. In response, Ms. Neidermeyer appealed the decision to the British Columbia Court of Appeal.

Ms. Neidermeyer raised four issues in her appeal. The first was whether the release she had signed covered the nature of the injuries sustained in these factual circumstances. The Court of Appeal found that the terms of the contract were indeed broad enough to cover the injuries that occurred.

Next, Ms. Neidermeyer claimed the trial judge erred in finding the release enforceable, despite it not being brought to her attention. She claimed that had the consequences of the release been made known to her, she would not have consented to the terms. The Court addressed this argument by citing Karroll v. Silver Star Mountain Resorts Ltd.,[1988] BCJ No. 2266. This case states there is no general requirement that a party tendering a document take steps to bring onerous terms to another party's attention and a party is not required to ensure the other party has read, or understood the terms. However, this is a requirement to bring onerous terms to the attention of another when it is obvious the signing party is not consenting to the very terms in question. The Court found the release to be enforceable.

Thirdly, the Court considered whether the exclusion clause was unconscionable at the time the contract was made. Under these circumstances, the Court took no issue with respect to unconscionability. The Court cited Loychuk v Cougar Mountain Adventures Ltd.,[2012] BCJ No. 504 at para. 40 where it was stated:

"...it is not unconscionable for the operator of a recreational sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and its employees".

Despite unanimously dismissing the first three grounds of the appeal, the court disagreed on the last issue of whether the trial judge erred in holding that the release was not contrary to public policy.

In dissent, Mr. Justice Hickson maintained there are five traditional categories that encompass the concept of "public policy", as well as statutory and common law illegality. In order for a court to rule a limitation of liability clause is unenforceable, it must fall within one of these categories. Justice Hickson noted that the legislature provided a comprehensive statutory right, but neglected to bar individuals from contracting out of this right.

At paragraph 61 of his decision, he states:

"...where a benefit is given by statute, in general, the benefit may be waived by contract. However, sometimes a waiver of the benefit is expressly prohibited by statute."

He held that an individual could waive a benefit given by statute, unless it was explicitly prohibited. The statutory scheme in British Columbia does not prohibit an individual from waiving the rights in question, and therefore it is not statutorily illegal to do so. Here, Justice Hickson's interpretation would allow the release and Ms. Neidermeyer would be left with no claim.

The majority, however, disagreed with Justice Hickson's interpretation of the law. They undertook a broader look at the motor vehicle insurance scheme in British Columbia before coming to the conclusion that it is not possible to contract out of the public insurance scheme.

They found that the legislature intended to make compensation available to all those who are injured in British Colombia, even in the absence of insurance. The majority stated at paragraph 90:

"...the scheme taken as a whole lends support to the appellant's argument that there is a compelling public policy interest at stake in this case. The public policy embraced by the legislative scheme is to provide a universal, compulsory insurance program as part of the legislature's efforts to ensure safety on the roads and access to compensation for those who suffer losses when those measure fail".

Additionally, the scheme ensures funding for injured individuals comes from drivers' premiums and not social programs.

In support of their interpretation, the majority turned to the Human Rights Code, emphasizing the case law which speaks to the inability of individuals to contract out the HR scheme. In a very similar manner, contracts in which an individual purported to contract out of the human rights code were held unenforceable due to public policy reasons.

Ultimately, this case does not alter the legal landscape in a monumental way, as the general enforceability of releases of liability remains intact. However, it does fashion a public policy exception regarding the contractual enforceability of releases. This exception applies when the loss is encompassed by a mandatory public insurance program or a statutory scheme. Whether the applicability of the exception will be enough to impair the legal validity of these types of releases in the future remains to be seen.

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