IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110217

Docket: Vancouver

Registry:
S093741

Between:

Deanna Loychuk and
Danielle Westgeest

Plaintiffs

And

Cougar Mountain
Adventures Ltd., Whistler Skyline Eco-Adventures Ltd.,
John Doe 1, John Doe 2 and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
On August 18, 2007, the plaintiffs, Deanna Loychuk and Danielle
Westgeest, (collectively the “Plaintiffs”) went on zipline tours operated by
the defendant, Cougar Mountain Adventures Ltd. (“Cougar”) at Whistler, British
Columbia. The Plaintiffs were injured when Ms. Westgeest collided with Ms.
Loychuk on the zipline. Cougar now concedes that the negligence of its employees
caused the accident.

[2]            
Before embarking on their respective tours, the Plaintiffs had both
signed waivers of liability (the “Release”). Cougar pleads that the Release provides
a complete defence to the action and now applies pursuant to Rule 9-7 to
dismiss the Plaintiffs’ claims. The action has been discontinued against the
other named defendants.

BACKGROUND

A. Cougar

[3]            
Cougar operates zipline tours at Whistler B.C. The tours are advertised
on a website. The website describes the tour as follows:

Come out to Cougar Mountain for
Whistler’s most exciting eco adventure!  Our new Skyline is an exhilarating
cable line expedition through old growth forest. The Skyline’s leading edge
technology takes you flying side by side on a unique tandem-line system. Ride
in a comfortable harness reaching speeds of up to a 100 km an hour. The system
offers five dual Skylines, the longest ride being over 1,500 feet long, 200
feet off the ground with a 200 foot vertical drop. The lines are connected to
each other by a trail system which includes a 150 foot suspension bridge. Our
guides will share their wealth of interpretive knowledge and local Whistler
knowledge about the ecosystem you will be exploring, giving you an elite Whistler
experience.

[4]            
The website discloses that all guests are required to sign a liability
waiver. A party who cancels within 24 hours of the tour and no-shows must pay
the full price of the tour. On the website, the answer to the frequently asked question
“Is it safe?” is as follows:

The Skyline system is fully
engineered and certified. The Skyline is the safest cable ride system in the
world because it utilizes a permanent rock anchor system rather than anchoring
cables into trees. The cable also uses three times the thickness of
conventional zip line systems.

[5]            
Cougar requires every participant on a zipline tour to sign the Release.
If the party refuses to sign the Release, they are not allowed to go on the
tour. If the party has already paid for the tour and chooses not to sign the
Release, they are given a refund.

B. Deanna Loychuk

[6]            
At the time of the accident, Ms. Loychuk, then 41, was the owner of a
fitness business named 30 Minute Hit which offers a kick boxing/fitness program
for women. Ms. Loychuk required clients of the 30 Minute Hit to sign a
waiver of liability and assumption of risks agreement. Ms. Loychuk would
explain to her clients what the waiver was for and advise them that they would
not be allowed to participate unless they signed the waiver.

[7]            
Ms. Loychuk is also the owner of a business that sells 30 Minute Hit
franchises. Included in the 30 Minute Hit franchise package is a waiver of
liability and assumption of risks agreement. When Ms. Loychuk meets with
potential purchasers of the franchise package, she explains to them the program
material, including the waiver of liability and assumption of risks agreement.

[8]            
 Ms. Loychuk has held a family ski pass at Grouse Mountain since 2006. When
she purchased the pass, she signed a waiver of liability and assumption of risks
agreement with Grouse Mountain.

[9]            
Ms. Loychuk went to Whistler to celebrate the birthday of one of her
friends. The friend recalls researching activities to do at Whistler on a
website and recalls looking at photos and reading something about the zipline
tour. The friend made the reservation and each of her guests then individually paid
by way of credit card.

[10]        
Ms. Loychuk understood that ziplining was a safe activity. Before she
went to Whistler, she went to the website to obtain more information because
she had never done this kind of thing before. She was not afraid of heights and
was not nervous  about participating in the activity.

[11]        
When she first attended at the Cougar office, Ms. Loychuk was handed the
Release to fill out and sign. She understood she could not participate if she
did not sign the Release. She knew the Release would prevent her from suing the
zipline company for certain things like if she tripped and broke her leg. She
says she did not realize that it gave the operator immunity for its own
failures, no matter how severe.

C. Danielle Westgeest

[12]        
Ms. Westgeest, then 26, had at the time of the accident just finished
her last semester of law school and was on the verge of beginning the
Professional Legal Training Course. She was with a group of friends in Whistler
to celebrate the impending marriage of one of them. Two of her friends had
arranged the ziplining trip. The three of them then had some discussions about
the cost and safety of ziplining and based on the information set out on the
website decided to go ziplining with Cougar. One of her friends made the
reservation for all of them with her credit card.

[13]        
Ms. Westgeest and her group drove up to Whistler the day of the accident
and went to the Cougar office. They paid individually for the tour and were
given the Release to complete. Ms. Westgeest  glanced over the Release but she did
not read it all. She did not discuss the terms of the Release with any of the
Cougar employees. When one of her friends asked her whether she should sign the
Release, Ms. Westgeest recalls making a flippant comment as to whether the
Release was binding.

[14]        
Ms. Westgeest acknowledged that she knew she was signing a waiver of
claims if she was injured on the zipline. She recalls signing a waiver on at
least one previous occasion when she had rented a kayak. When she signed the
Release, she understood she was waiving certain legal rights. She says,
however, she did not appreciate she was waiving all rights against Cougar,
including claims arising from its own negligence. She says she did not really
think about the Release because they were in a bit of a rush and she did not
think it was a risky activity.

D. The Accident

[15]        
Ziplining involves being strapped into a harness and trolley and
proceeding down a line from a higher to a lower elevation. The speed at which a
person descends is determined in part by the slope of the line. On each line,
one of the guides would first descend the line to the lower platform while
another guide would remain at the higher platform with the guests. The guides
communicated via walkie-talkies. The guides were solely responsible for
determining when each participant proceeded down the line.

[16]        
The Plaintiffs did not know each other and were originally in separate
groups led by different tour guides. On the last zipline of the day, the tour
guides merged the two groups.

[17]        
Ms. Loychuk was sent down the line. She did not reach the bottom
platform and was suspended on the line.

[18]        
Roughly 500 metres away and unable to see the bottom platform, Ms. Westgeest
was told by the guide to go and she went down the line. As she neared the
bottom of the zipline, she saw Ms. Loychuk still suspended on the line. Ms.
Westgeest had no ability to stop herself and slammed into Ms. Loychuk at
high speed causing injury to both.

[19]        
The accident was caused by a miscommunication between the tour guides. Ms.
Westgeest should not have been sent down the line while Ms. Loychuk was suspended
on it. Other than the Release, there is no defence to the Plaintiffs’ action.

E. The
Release

[20]        
The Release is a one-page document. At the top of the Release is a box
in large print which reads as follows:

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISK
AGREEMENT

(hereinafter referred to as the “Release Agreement”)

BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS,
INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT

PLEASE READ CAREFULLY!

[21]        
Participants are required to first sign the Release immediately adjacent
to that warning. They then must fill in their name, address and weight. At the
bottom, they must sign the Release under the wording “I have read the Release
Agreement above, and I agree to be bound by its terms.”  The Release must also
be witnessed.

[22]        
In the body of the Release there is a description of the tour. There
then is a heading “Assumption of Risks” which sets out in some detail the risks
and hazards involved in the activity, including collision with other
participants and negligence of guides. The section then continues in bold
capitalized print:

… and NEGLIGENCE ON THE PART OF
THE RELEASEES, INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE
REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS
OF PARTICIPATING IN ECO ACTIVITIES. I FREELY ACCEPT AND FULLY ASSUME ALL SUCH
RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH,
PROPERTY DAMAGE AND LOSS RESULTING THEREIN.

[23]        
The Release then contains a specific waiver and release of all claims:

In consideration of the RELEASEES
agreeing to my participation in Eco Activities and permitting my use of their
equipment, parking and other facilities, and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, I hereby
agree as follows:

TO WAIVE ANY AND ALL CLAIMS that
I have or may in the future have against the RELEASEES AND TO RELEASE THE
RELEASEES from any and all liability for any loss, damage, expense or injury,
including death, that I may suffer or that my next of kin may suffer, as a
result of my participation in Eco Activities DUE TO ANY CAUSE WHATSOEVER,
INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER
DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY
ACT, R.S.B.C. 1996, C. 337 ON THE PART OF THE RELEASEES, AND FURTHER
INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO
SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF PARTICIPATING IN
THE ECO ACTIVITIES REFERRED TO ABOVE.

POSITION OF THE
PARTIES

[24]        
The defendants submit the Release provides a complete defence to the
action. They rely on several decisions where similar releases were upheld
including Karroll v. Silver Star Mountain Resorts Ltd. (1988), 33
B.C.L.R. (2d) 160 (S.C.) [Karroll], Ochoa v. Canadian Mountain Holidays
Inc., [1996] B.C.J. No. 2026 (S.C.) [Ochoa], Mayer v. Big White Ski
Resort Ltd. (1998), 112 B.C.A.C. 288 [Mayer], Delaney v. Cascade
River Holidays Ltd. (1983), 44 B.C.L.R. 24 (C.A.) [Delaney], and Dyck
v. Manitoba Snowmobile Assn. [1985] 1 S.C.R. 589 [Dyck].

[25]        
The Plaintiffs acknowledge signing of the Release. They submit, however,
that the Release is ineffective for the following reasons:

i.        the
release is unenforceable because a reasonable person should and would have
known that the Plaintiffs were not consenting to the terms at issue and the
defendant failed to take steps to apprise the Plaintiffs of the terms,
constituting misrepresentation by omission;

ii.        the Release is
unconscionable;

iii.       as a
result of deceptive and/or unconscionable acts committed by the defendant, the Release
is invalidated by s. 3 of the Business Practices and Consumer Protection Act,
S.B.C. 2004, c. 2 ( the “BPCPA”);

iv.       the Release
is invalid as having been obtained without any, or only past, consideration.

[26]        
The Plaintiffs submit that the cases relied on by the defendant are
distinguishable. They involve releases in regards to activities in which the
participant has some measure of control. They contrast such activities with ziplining
in which the participant hands over her personal safety to the zipline operator
and its employees and has no control over the nature of the risk.

DISCUSSION

A. Enforceability of the
Release

[27]        
In Karroll, McLachlin C.J.S.C. (as she then was) discussed when a
plaintiff will be bound by the terms of a release. In the course of her
reasons, she reviewed and reconciled two distinct lines of authorities. The
first supports the principle of general contract law that where a party signs a
document which he or she knows affects his or her legal rights, the party is
bound by the document in the absence of fraud or misrepresentation, even though
the party may not have read or understood the document: L’Estrange v. F.
Graucob Ltd., [1934] 2 K.B. 394 at 403 (C.A.) [L’Estrange]. The
second requires a party seeking to rely on an exclusion of liability, which the
signing party has not read, to show that a reasonable attempt has been made to
bring the signing party’s attention to the terms contained on the form if they
wish to rely on the release: Union Steamships Ltd. v. Barnes, [1956]
S.C.R. 842.

[28]        
McLachlin C.J.S.C. reconciled the decisions at 166. She concluded that an
obligation on the party tendering the document for signature to take reasonable
steps to apprise the party signing of onerous terms only arises in
circumstances that a reasonable person should have known that the party signing
was not consenting to the terms.

[29]        
The Plaintiffs signed the Release knowing that it was a legal document
affecting their rights. Under the principles set forth in L’Estrange they
are bound by its terms unless they can bring themselves within one of the exceptions.
This is not a case of non est factum. Nor was there active
misrepresentation. Unless it is unconscionable or invalid for other reasons, they
are bound by the Release unless they can establish:

i.        that
in the circumstances a reasonable person in the place of the defendant would
have known that they did not intend to agree to the Release they signed; and

ii.        that
in the circumstances the defendant failed to take reasonable steps to bring the
content of the Release to their attention.

[30]        
The Release was consistent with the purpose of the contract, which was
to permit the Plaintiffs to engage in a hazardous activity upon which they, of
their own volition, had decided to embark. The most casual review of the
document would have revealed to the Plaintiffs that the Release was a legal
document impacting on their legal rights to sue or claim compensation following
an accident. They asked no questions concerning the terms of the Release. They
never indicated to Cougar that they were not prepared to sign the Release.

[31]        
There is nothing in the circumstances that would lead Cougar to conclude
that the Plaintiffs did not intend to agree to what they signed. In these
circumstances, Cougar was under no obligation to take reasonable steps to bring
the terms of the Release to the Plaintiffs’ attention.

[32]        
That said, Cougar did in fact take reasonable steps to bring the
contents of the Release to the Plaintiffs’ attention. Both were given
sufficient time to read the Release. The heading at the top of the document and
the admonition to read carefully alerted the Plaintiffs that it was a legal
document intended to prevent the Plaintiffs from suing or claiming compensation
following an accident. Both Plaintiffs acknowledge that they knew from their
reading of the Release that it limited in certain circumstances their legal
rights to sue. In Mayer, which concerned a release in relation to
obtaining a ski pass, the release contained terms in bold lettering similar to
that in the case at bar. The court noted that the large bold print should have
alerted the most casual reader of the release’s terms. The same considerations
apply in this case.

[33]        
I do not accept the Plaintiffs’ submission that the reasoning in Karroll
should be limited to cases involving hazardous activities in which the
participant has some measure of control. Karroll is a case of general
application. Its reasoning applies to all contracts.

[34]        
Subject to the remaining submissions discussed below, I find the Release
is enforceable. A reasonable person in the position of Cougar would not have
known that the Plaintiffs were not consenting to the terms of the Release.
Cougar took appropriate steps to apprise the Plaintiffs of the terms of the
Release.

B. Unconscionability of
the Release

[35]        
The Plaintiffs submit that the Release is unconscionable. In support of their
submission, they rely on the Law Reform Commission of British Columbia’s Report
on Recreational Injuries: Liability and Waivers in Commercial Leisure
Activities (Report No. 140, 1994). That report was a response to the
Attorney General’s request that the Commission examine the law relating to the
tort liabilities of commercial recreational operators. The report reviewed in
detail the law governing civil liability and waivers in commercial recreation. The
report made various recommendations with regard to waivers. The Commission
recommended that a commercial recreational operator should not be able to
exclude or limit its liability for personal injury or death with respect to
operator-controlled incidents. The legislature has taken no steps to implement
the Commission’s recommendations.

[36]        
This is not the first time that it has been suggested that a release arising
in the context of hazardous activities is unconscionable. However, as noted by
Koenisberg J. in Ochoa, there is a well established line of authority in
Canada that such exclusions of liability are not unconscionable. In Ochoa,
she rejected an argument that the release was unconscionable. Similarly in Dyck,
the Supreme Court of Canada rejected an argument that the release in question
was unconscionable.

[37]        
The Plaintiffs seek to distinguish the cases that have upheld releases
on the grounds that in those cases the participant was less dependent on the
operator and has some measure of control over the risks that were being assumed.
The difficulty with that submission is that the releases in the other cases, as
in this case, release the operator for its own negligence. The party signing
the release has no measure of control over the operator’s negligence. In my
view the cases cannot be distinguished on that basis.

[38]        
 In this case, the Plaintiffs were advised on the website that a waiver
of liability was a requirement of participating in the activity. There is no
evidence of duress, coercion or unfair advantage resulting from economic or
psychological need. The Plaintiffs voluntarily participated in the activity,
knowing that to do so they had to agree to the Release. The Plaintiffs had
signed releases on other occasions. Ms. Loychuk used them in her business.
Ms. Westgeest had just completed her law degree and was fully familiar with
legal terminology.

[39]        
Whether Releases should be limited in the manner recommended by the
Commission is a question of public policy. To date the legislature has not chosen
to implement the Commission’s recommendations. Absent legislative intervention,
I am bound by the prior authorities. I find the Release is not unconscionable.

C. Release Void under the Business
Practices and Consumer Protection Act

[40]        
The Plaintiffs submit the Release is void pursuant to the provisions of
the BPCPA. Section 3 of the BPCPA provides that any waiver or
release of a person’s rights, benefits or protections under the BPCPA is
void except to the extent that the the BPCPA expressly permits the waiver
or release.

[41]        
The BPCPA prohibits deceptive and unconscionable acts or practices.
Section 4 defines “deceptive act or practice” as meaning an “oral, written,
visual, descriptive or other representation by a supplier, or any conduct by a
supplier that has the capability, tendency or effect of deceiving or misleading
a consumer or guarantor.”

[42]        
The Plaintiffs submit that Cougar engaged in deceptive acts by
misleading, overtly and by omission, the safety risks involved. They submit
that the statement on Cougar’s website that it is the safest system in the
world is misleading given that there were three accidents on the zipline in
August 2007. They also submit that Cougar failed to warn potential customers
that the most common accidents in the zipline industry were person to person
collisions such as occurred in this case.

[43]        
Section 8 concerns unconscionable acts or practices. In determining
whether an act or practice is unconscionable, a court must consider all of the
surrounding circumstances including whether the supplier subjected the consumer
to undue pressure to enter into the transaction, whether the supplier took
advantage of the consumer’s inability to protect his or her own interest and
whether the terms or conditions on which the consumer entered the transaction
are so harsh or adverse to the consumer as to be inequitable.

[44]        
The Plaintiffs submit that Cougar placed unfair pressure on them by
presenting the Release immediately before the tour was to depart. They submit
that Cougar took advantage of the Plaintiffs’ ignorance by having them sign
away their rights without advising them of the risk and that the terms of the
Release are so harsh or adverse to the plaintiffs that they are inequitable.

[45]        
The Plaintiffs acknowledge that the BPCPA has never been applied
in a recreational sports context. Assuming that the BPCPA does apply,
the evidence in this case does not support the submission that Cougar committed
either deceptive or unconscionable acts. There is no evidence that the
representation on the website concerning the safety of the system is anything
but true. The answer relates to the structure of the system, not its operation.
The fact that there have been some accidents does not lead to a contrary
conclusion.

[46]        
The website discloses that participants are to be placed in a harness
and travel at speeds of up to 100 km an hour. It would be obvious to any
participant that the activity was not free of risk .The Release sets out in
detail the many risks and dangers involved. Nobody is forced to participate. Cougar
would have given the Plaintiffs a refund if they did not want to sign the
Release. Cougar did not take any unfair advantage of the Plaintiffs. The terms
of the Release are not inequitable.

[47]        
If the BPCPA does apply to this transaction, I find that Cougar
did not breach its provisions.

D. Past Consideration

[48]        
The Plaintiffs submit that they were not given notice of the terms of
the Release when they entered the contract. In these circumstances, they submit
that the terms of the Release were not part of the contract and since there was
no “new” consideration for them, the Release is unenforceable. In support of
that submission, they rely on the dissenting reasons of Nemetz C.J.B.C. in Delaney
at paras. 15-18.

[49]        
In Delaney, the participants did not know that a liability
release would be required when they entered into the contract and paid for the
trip. The facts in this case are different. The Plaintiffs had both accessed
the website which disclosed that all guests were required to sign a liability
waiver. The parties were advised before commencement of the activity that they
must sign the waiver or they would not be allowed to participate. Further, the
Release itself specifically sets out that the consideration for the Release is
Cougar’s agreement to allow the Plaintiffs to participate in Eco Activities.

[50]        
In these circumstances, I find that the Release does not fail for lack
of consideration.

SUMMARY

[51]        
In conclusion, therefore, I find that the Release is valid and
enforceable. It provides a complete defence to the Plaintiffs’ claims. The action
is dismissed.

[52]        
Unless there are matters of which I am not aware, Cougar is entitled to
costs on Scale B. If either side seeks a different determination in regard to
costs, they should file written submissions within 21 days. Any responsive
submissions should be filed within 14 days thereafter.

“R.B.T. Goepel J.”

________________________________________

The
Honourable Mr. Justice Richard B.T. Goepel