[Trev140_0]

Tested in Supreme Court over a year ago.

In considering the unconscionability of the waiver, the Court first examined the status of the common law on the enforcement of waivers. This examination revealed that there is a well-established line of authority that releases in relation to recreational sports are not unconscionable, even when, as in this case, the activity is totally within the control of the service-provider. Further, the Court found that the principle demonstrated by these cases is “that 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. If a person does not want to participate on that basis, then he or she is free not to engage in the activity.”[4]

The Court next considered whether there was an overriding public policy reason to not enforce the waiver. The plaintiff argued that it was against public policy to enforce a waiver that allowed service-providers to escape liability for injury and death resulting from negligence in sporting and recreational activities. The Court reviewed the Supreme Court of Canada’s decision in Tercon Contractors Ltd. v British Columbia (Transportation and Highways),[5] stating that the power to decline enforcement of a waiver must be rarely exercised in the interest of stability of contractual relations. The Court determined that in order to decline to enforce a waiver on the grounds of public policy, the party relying on the waiver must have “engaged in conduct so reprehensible that it would be contrary to the public interest to allow it to avoid liability”.[6] As these conditions were not present in this situation, the Court found that the waiver was not unenforceable on the grounds of public interest.

The Court then disposed of the ground of appeal relating to unconscionability under the BPCPA, finding that the elements to establish unconscionability were the same as under the common law discussed above. As such, the waiver was not unconscionable under the BPCPA, and that the defendant had met the reverse onus in this regard. Finally, the Court considered the claim that the waiver was unenforceable for lack of consideration. The plaintiffs argued that they entered the contract to go on a zip-line tour at a different time than when they signed the waivers. They claimed therefore that when the signed the waiver, which is a contract, no consideration changed hands so the contract was not legally formed. The Court determined however that the consideration that the plaintiffs received was the ability to participate in the zip-line tour, which they did in fact do, albeit with unfortunate results.
E. CONCLUSION

This decision is important to charities and not-for-profits for two reasons. Firstly, it further increases the likelihood that a properly drafted and executed liability waiver will insulate service-providers from liability.
Secondly, this decision illustrates the importance of ensuring that a liability waiver is properly drafted and executed. The liability waiver was found to be enforceable by the trial judge and the Court of Appeal because it was clear, drew attention to the impact of the waiver in terms of liability of the service-provider, and gave the plaintiffs the opportunity to read and understand its terms. It is also noteworthy that the Court considered the plaintiffs’ capacity to understand the waiver. Where these conditions are not present, a liability waiver will be less likely to be legally enforceable if challenged.

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The part on the end is important if the guy sparks up a joint, you see him, you don't care, and he signs. His "capacity" is impaired.