I have been injured participating in an activity that required me to sign a release of liability to take part in. Can I sue despite signing this waiver?
In the recent personal injury case, Jamieson v Whistler Mountain Resort Limited Partnership (2017 BCSC 1001), the plaintiff was confined to a wheelchair as a result of a spinal cord injury sustained on the Whistler park bike trails. The plaintiff was an experienced mountain biker and was not a stranger to the bike trails offered by Whistler, and in fact had assisted in their construction and worked as a trail patroller for Whistler in the past.
Prior to the injury, the plaintiff signed a waiver that released Whistler from liability for any injuries sustained on the mountain biking trails. Despite signing the release, the plaintiff argued it should be of no effect and void, due to Whistler’s failure to warn him of the risks involved with riding in the bike park. The plaintif also alleged that he was rushed during the signing process of the waiver and therefore did not understand its contents. Further, the plaintiff alleged that Whistler had engaged in unconscionable act and practices, including deliberate non-disclosure of relevant documents related to the risk and severity of injuries at the park.
In coming to her decision Madam Justice Sharma cited the three exceptions that may act to void a release of liability:
[104] The leading case about the validity of enforceability of waiver agreements in the context of recreational activities is Karroll v. Silver Star Mountain Resorts Ltd., [1988] B.C.J. No. 2266 (S.C.). A number of propositions from that case are applicable to the facts before me. In that case, the plaintiff submitted that a release she signed could not bind her because she was not given reasonable opportunity to read and understand it. Many similar cases cite McLachlin J.’s discussion of the issue…
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[105] She continues that “where a party has signed a written agreement it is immaterial to the question of his liability under it that he has not read it and does not know its contents” (quoting from L’Estrange v. Graucob, [1934] 2 K.B. 394 at 406-407). Justice McLachlin discusses that two exceptions to that rule had been recognized: if the signature was not an action of the plaintiff (non est factum), or if the agreement was induced by fraud or misrepresentation.
[106] Justice McLachlin adds a third exception: if the party seeking to rely on an exclusion knew or had reason to know that the signor was mistaken as to its terms of exclusion, those terms are not enforceable. She states at para. 24 that “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 he reads and understands them” unless a reasonable person should have known that the party singing was not consenting to the terms in question.
Madam Justice Sharma found that none of the above exclusions applied, and the plaintiff’s allegations to be unfounded, leading to her conclusion that the release was valid and enforceable. Unfortunately, this decision left the plaintiff without legal recourse for the serious and life-threatening injuries he suffered:
[149] For the reasons discussed herein, I find the Release is valid and enforceable, and effective to bar the plaintiff’s claim. I also find Whistler has proven it has not violated any provision of the Act.
[150] Therefore, Whistler is entitled to a declaration that Dr. Jamieson is bound by the terms and conditions of the Release he signed on June 28, 2009 thus precluding him from suing Whistler for any injury, loss, damage or expense he may have sustained as a result of the accident that took place on August 28, 2009 in the Park. I also grant an Order dismissing his action.
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