Sports Enthusiasts: Beware Of What You Sign

Whether out on the slopes for a day, registering for recreational sports programs or joining a gym, we are routinely asked to sign waivers releasing operators from liability for any injury we may suffer in the course of physical activity.

However common place this may be, it is crucial that participants understand that the simple act of signing a release can have a significant impact on a participant's right to sue, even in the case of extremely serious personal injury. This was demonstrated in the recent case of Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001.

In Jamieson, the plaintiff bought a season's pass for the mountain biking park (the "Park") owned and operated by Whistler Mountain Resort Limited Partnership ("Whistler"). Like all patrons of the Park, the plaintiff signed a four page release as a condition of using the Park (the "Release").

On August 28, 2009, the plaintiff went mountain biking in the Park. During his ride, the plaintiff's tire got caught in some terrain causing him to be thrown over the handlebars. The plaintiff suffered a serious spinal cord injury as a result of the incident.

The plaintiff brought a lawsuit against Whistler seeking compensation for his injuries. In response, Whistler brought an application seeking to enforce the Release and dismiss the plaintiff's claim.

The crux of the issue raised in the application was whether the Release signed by the plaintiff was valid and enforceable such that the plaintiff was precluded from bringing the action. In addressing this issue, Madam Justice Sharma examined the text of the Release in the context of the other facts of the case as well as the nature of the risks at the Park in order to determine if Whistler had met its duty to warn.

(i) Was the Release valid and enforceable?

Madam Justice Sharma reviewed the legal principles arising from the case law regarding validity and enforceability of waiver agreements in the context of recreational activities. She explained that, in considering the validity and enforceability of the Release, "the content and presentation of the text of the Release is an important, potentially decisive issue; but courts also look at the personal circumstances of the plaintiff, and the context of the accident."[1]

In the case before her, Madam Justice Sharma found that the content/presentation of the text of the Release and the plaintiff's circumstances supported the validity and enforceability of the Release.

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