A well-drafted release is priceless

Jamieson v. Whistler Mountain Resort Limited, 2017 BCSC 1001, affirmed a facility provider’s ability to protect itself by requiring that a user execute a release waiving his or her right to sue for personal injuries sustained at the facility. In that case, The Hounourable Madam Justice Sharma dismissed the claim of a plaintiff who sustained a severe spinal cord injury when he tried to “pre-jump” a rock drop on a black diamond bike trail (the “Accident”) while mountain biking at the Whistler Mountain bike park in 2009.

On the day of the Accident, the plaintiff signed a four page release in favour of Whistler Mountain in which he waived any and all rights to sue for any loss, damage, expense or injury that he may suffer as a result of his participation in mountain biking at Whistler Mountain.

The decision in this case allows recreational facilities and other service providers, and their insurers, to breathe a sigh of relief. However, time will tell whether the precedential value of this case may be limited by its facts.

Her Ladyship placed importance on the wording and format of the specific waiver at issue. Her Ladyship found the release “comprehensive, clear and blunt”; the text of the document was accessible to the average English speaker, and attention was drawn to the most relevant section of the document— the release, using highlighting, bolding, and coloured ink.

The defendant was able to show that the circumstances in which a rider signed the release were standardized. Staff at Whistler Mountain was trained to ensure all patrons read and understood the waiver prior to signing. The Court accepted Whistler Mountain’s evidence that its employees are trained to decline to witness a rider’s signature on the waiver if the patron cannot or will not affirm that he or she has read and understood the waiver.

In addition, the waiver did not have to stand on its own. The Court accepted and relied upon the fact that signs were posted in and around the bike park which reiterated the waiver’s terms and effect, and advised riders of the difficulty level of the trails.

The plaintiff argued that he did not understand that a spinal cord injury was a possible consequence of mountain biking or that spinal injuries were commonly caused by riders going over their handlebars. However, the defence established that the plaintiff knew Whistler Mountain, the bike park and the risks of using the bike park well. He was an active skier and mountain bike rider and had helped build trails at the bike park in exchange for a season’s pass. He had been a volunteer patroller at the bike park in 2004, 2005, and 2006, which required that he train in first aid, including precautionary cervical spine procedures.  The defence produced incident reports which showed that, as a patroller, the plaintiff had attended to individuals who had flipped over their handle bars, including using precautionary spinal procedures.

Therefore, while this decision provides a solid and useful precedent that the Court can and will give effect to a facility user’s signed waiver of his or her right to sue, Whistler Mountain had an unusually helpful set of facts. The Court’s reliance on employee training, Whistler Mountain’s supplementary signs reiterating the terms of the release, and the plaintiff’s subjective knowledge of the park and its risks, leaves room for this case to be distinguished on its facts.