Riding The Waive: Court Clarifies Risks And Consequences Of Signing A Waiver

Jamieson v. Whistler Mountain Resort, 2017 BCSC 1001, is a reminder to those that operate and participant in dangerous activities that signing waivers has legal implications.

Dr. Jamieson was left in a wheelchair following a mountain biking accident at a park owned and operated by Whistler Mountain Resort ("Whistler"). He sued Whistler for damages for personal injury and Whistler relied on an agreement signed by Dr. Jamieson as proof that he had waived his legal rights to sue them for any injuries he suffered (the "Waiver").

Dr. Jamieson argued that, even though he had signed the Waiver, it was invalid because Whistler:

failed to adequately warn him of the severity of the risks involved in mountain biking, specifically that a spinal injury could occur while biking at a park; and violated consumer protection legislation by engaging in deceptive and/or unconscionable acts. The main issues for the Court to decide was whether the Waiver was valid and enforceable and whether it adequately warned riders of the risks in using the park.

In deciding the validity of the Waiver, the Court relied on Karroll v Silver Star Mountain Resorts for the principle that, when dealing specifically with exclusion of liability releases, the party seeking to have the other party waive their liability [like Whistler was] must take reasonable steps to bring the exclusion of liability to the attention of the other party [like Dr. Jamieson]. However, there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the party signing of onerous terms or to ensure that s/he reads and understands them unless a reasonable person should have known that the party signing was not consenting to the terms in question. The Court also relied on the principle that where a party has signed a written agreement, it is immaterial that he has not read it and does not know its contents.

The Court dismissed Dr. Jamieson's argument that Whistler's duty to warn was required to be tailored to the gravity of the potential hazard and that the Waiver was invalid because it failed to alert patrons of spinal injuries. This principle applied in product liability cases and not in cases dealing with Waivers where the identification of specific risks is not generally required. The Court decided that it was not necessary for...