Exclusion Clause Absolves Full Liability in Ski Accident

In Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 the Plaintiff suffered serious injuries including a broken leg after skiing on Big White Mountain, having taken a short cut off the mountain, in which the Defendant failed to rope the area closed, causing the Plaintiff to fall off a 10 foot cliff, causing serious injury.

The matter was scheduled for summary trial by the Defendant for a dismissal of the action on the sole argument that the Ticket purchased by the Plaintiff provides an Exclusion provision which absolves the Defendant from any liability.

The Plaintiff argues that the Exclusion provision does not apply to “extraordinary and unexpected hazards” created by the Defendant, and seeks a declaration that the Exclusion provision is not enforceable, and in the alternative that the summary trial application should be dismissed and scheduled for a conventional trial.

The Court disagreed with the Plaintiff and stated that based on the facts presented as it relates to the Exclusion of Liability, the Court was of the opinion that the matter before it was appropriate for summary trial disposition.

Furthermore, although the Court reviewed the evidence and found that the Defendant failed to take reasonable care and was negligent, the court concluded that the Exclusion provision was a complete defence to any claims.

The court also highlights a reminder to all counsel:

All parties to an action must come to a summary trial hearing prepared to prove their claim, or defence, as judgment may be granted in favour of any party, regardless of which party has brought the application

Also, a further reminder on what evidence is deemed inadmissible – an important note as you do not want to be faced with having part of your evidence struck due to inadmissibility:

I note that some of the evidence contained in the affidavits filed by both sides is inadmissible on a summary trial.  For example, Mr. Hopkinson’s affidavit contains opinions and conclusions that are based on documents he reviewed but which are not in evidence.  Even if the documents had been attached as exhibits, they would not, without more, be admissible to prove facts set out in them.  Mr. Hopkinson’s affidavit also contains inadmissible argument, speculation and disguised hearsay.  There are parts of the affidavit of Ms. Moore that suffer from the same problems.  Parts of the affidavits from members of the Fillingham family members are inadmissible hearsay.

The Courts Analysis and Conclusion:

Discussion and analysis

Counsel made only brief submissions concerning the suitability of this matter for summary trial. 

In both written and oral argument, Mr. Berezowskyj (on behalf of Mr. Fillingham) submitted in the alternative that the question whether the hazard that resulted in Mr. Fillingham’s injuries fell within the scope of the Exclusion should not be determined on the basis of a summary trial, but should instead be left for the full trial. 

Mr. Kennedy, counsel for BW Limited, resisted the idea that the court would or could make any findings concerning negligence on the part of his client, in view of the conflicts in the evidence about snow clearing and the state of the rope lines, for example.  He advised that BW Limited was not conceding any negligence.  Rather, its position is that the conflicts in the evidence are not a barrier to having the liability issue decided based on the Exclusion, and that it is entitled to a dismissal of the action.

I will therefore discuss suitability relatively briefly.

The court may grant judgment on a summary trial, either on an issue or generally, unless the court is unable on the whole of the evidence to find the facts necessary to decide the issues of fact or law, or the court is of the opinion that it would be unjust to decide the issues on the application.  Judgment may be granted on a summary trial application despite conflicting affidavits or conflicting evidence where the court is able to make the necessary findings of fact.  A triable issue or arguable defence will not always defeat a summary trial application, and cases will be decided summarily if the court is able to find the facts necessary for that purpose, even though there may be disputed issues of fact and law, provided that the judge does not find it is unjust to do so:  see Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) at p. 211.

All parties to an action must come to a summary trial hearing prepared to prove their claim, or defence, as judgment may be granted in favour of any party, regardless of which party has brought the application, unless the judge concludes that he or she is unable to find the facts necessary to decide the issues or is of the view that it would be unjust to decide the issues in this manner.  Here, there was evidence tendered by Mr. Fillingham (as respondent to the application) on the negligence issues, to which Big White did not respond.  As a result, Big White ran the risk of findings being made against it, based on the unchallenged evidence tendered by the plaintiff. 

Of course, a summary trial, although heard (generally) on a paper record in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s), and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised.

I note that some of the evidence contained in the affidavits filed by both sides is inadmissible on a summary trial.  For example, Mr. Hopkinson’s affidavit contains opinions and conclusions that are based on documents he reviewed but which are not in evidence.  Even if the documents had been attached as exhibits, they would not, without more, be admissible to prove facts set out in them.  Mr. Hopkinson’s affidavit also contains inadmissible argument, speculation and disguised hearsay.  There are parts of the affidavit of Ms. Moore that suffer from the same problems.  Parts of the affidavits from members of the Fillingham family members are inadmissible hearsay. 

I have given no weight to what is inadmissible.

In addition, Big White asks the court to determine a “slice” of the litigation:  namely, its liability based on the Exclusion.  In Greater Vancouver Water District v. Bilfinger Berger AG, 2015 BCSC 485, Griffin J. summarized (at para. 110) the factors that the court must consider on applications to determine by summary trial only part of the issues in the lawsuit. 

I have concluded that I am able to find the facts necessary to decide the issues on liability based on the Exclusion, and that it would not be unjust to do so.

Based on the admissible evidence, I find the following facts:

  • Mr. Fillingham was a very experienced skier and snowboarder, including at Big White, and he was very familiar with the Exclusion.  The Exclusion was on the back of the ticket he purchased on March 4, 2013 and substantially identical language was also displayed prominently on the notices in the ticketing area of Big White;
  • Big White permits the use of the short cut, which is a known route to the Solana Ridge parking lot.  The evidence of Mr. Fillingham, Mr. Fillingham’s parents, Ms. Brackley and Mr. Rehbein supports this conclusion;
  • Big White is responsible for snow plowing and snow clearing in the Solana Ridge parking lot.  This fact is not disputed by Big White;
  • snow plowing and clearing in the Solana Ridge parking lot creates an embankment or cut bank, as described by Mr. Rehbein.  However, when the short cut is being used, the slope is a gradual one.  This is consistent with the evidence of Mr. Fillingham and Mr. Fillingham’s father, and also with the evidence of the Brackleys, who described the route as a “path”;
  • Big White erects and maintains the rope line along Highway 33;
  • on March 3, 2013 and on the morning of March 4, 2013, the short cut was available for use and being used by skiers and snowboarders.  Ms. Brackley observed it being used on March 3, and the evidence of Mr. Fillingham and his father that they used it when returning to Solana Ridge in the morning on March 4 is uncontradicted;
  • based on the evidence of use of the short cut on both March 3 and the morning of March 4, I conclude that the rope line along Highway 33, at the point of the short cut, was open on both March 3 and the morning of March 4.  The fact that the rope line was open permitted use of the short cut.  I accept the evidence of Mr. Fillingham and Gary Fillingham on that point.  The open line is shown in the photographs taken and diagram created after the accident.  I also accept their evidence that there are occasions when the rope line was not open, and that, on those occasions, they did not use the short cut.  Gary Fillingham observed that, on March 6, the rope line was not open.  Mr. Rehbein’s general and conclusory evidence that the rope line was not adjusted and remained constant is inconsistent with the actual use of the short cut on March 3 and the morning of March 4, as well as with the evidence of Mr. Fillingham and his father.  In my opinion, the evidence of Mr. Fillingham and his father on the condition of the rope line at the short cut is more reliable than both the general statements from BW Limited about its practice, and Mr. Rehbein’s evidence.  Moreover, BW Limited filed no evidence in reply to the evidence of Mr. Fillingham and Gary Fillingham on this point;
  • during the morning on March 4, 2013, and after the members of the Fillingham family returned to the mountain, but before Noon, Big White cleared snow from the Solana Ridge parking lot, and, as a result, the short cut and path into the parking lot that the Brackleys observed on March 3, and that Mr. Fillingham and his father used earlier in the morning on March 4, was removed.  In its place was a sheer ten-foot drop into the parking lot.  The conclusions in the affidavit of Mr. Hopkinson about the absence of snow clearing on March 4, based on records he reviewed, are inadmissible.  Rather, Mr. Brackley’s evidence of what he observed the morning of March 4, together with the evidence of Mr. Fillingham and Gary Fillingham about the change in conditions between 9:30 a.m. and Noon, when the accident occurred, lead me to conclude that snow clearing took place, removed the path and created the ten-foot drop;
  • as of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33, the rope line at the short cut was still open.  However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard.

 

I find further that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.

I make no findings concerning any negligence on the part of Mr. Fillingham.

I turn then to the main issue on this summary trial:  can BW Limited rely on the Exclusion?

In support of his argument that a failure to close the rope line in the circumstances nevertheless falls within the scope of the Exclusion, and the Exclusion therefore constitutes a complete defence, Mr. Kennedy cites (among other cases):  Union Steamships Limited v. Barnes, [1956] S.C.R. 842; Mayer v. Big White Ski Resort Ltd., 1997 CanLII 4261 (B.C.S.C.), aff’d 1998 CanLII 5114 (B.C.C.A.); Dixon v. B.C. Snowmobile Federation, 2003 BCCA 174; and Dyck v. Manitoba Snowmobile Association, [1985] 1 S.C.R. 589.

On behalf of Mr. Fillingham, Mr. Berezowskyj submits that, on the facts, given the unusual hazard that was created by BW Limited itself, BW Limited cannot rely on the Exclusion to avoid liability to Mr. Fillingham because the scope of the Exclusion is not sufficiently broad.  Where the risk or hazard involved is beyond what one might reasonably be expected to have accepted when participating in a particular activity, even broad language such as that found in the Exclusion may not or should not defeat a claim, in Mr. Berezowskyj’s submission.

In support of this argument, Mr. Berezowskyj cites Parker v. Ingalls, 2006 BCSC 942.  The plaintiff in that case, a student in a martial arts class, suffered a severe knee injury as a result of his instructor demonstrating a move and exerting torque or pressure on the plaintiff’s right leg and knee joint.  The instructor sought to rely on a waiver contained in the studio’s enrollment package.  The waiver stated as follows:

Student further acknowledges the existence of some risk of personal injury in participating in the prescribed course of instruction and expressly agrees to assume the risk of all injuries, death or property damage and agrees to indemnify and save harmless Studio from and against any and all liability, including all expenses, legal or otherwise, incurred by Studio in the defense of any claim or suit. 

On a trial of liability only, Madam Justice Allan concluded (at para. 70) that the waiver did not release the defendant from liability because she did not accept the defendant’s evidence that he brought the waiver to the attention of the plaintiff when the plaintiff enrolled for instruction. 

Madam Justice Allan went on to conclude that, in any event, the plaintiff’s claim did not fall within the scope of the waiver because the mechanism of injury was not among the types of risk the parties would reasonably expect the waiver to cover.  She wrote, at paras. 72-73:

[72]      In any event, I find that an injury such as that experienced by Mr. Parker does not fall within the scope of the waiver.  In my opinion, Mr. Parker, by engaging in shoot-fighting lessons accepted certain risks of injury but he did not accept the risk of injury at the hands of his instructor whom he trusted not to harm him.  It is reasonable for Mr. Ingalls to seek a waiver from accidents occurring in the case of a student injuring himself as a result of falling or doing a move incorrectly, or being injured by another student in the course of an exercise.  However, it is not reasonable for Mr. Ingalls to seek to exclude himself from his own negligence where he is conducting a demonstration in which he has complete control over the safety of the student.  Mr. Parker was not asked to consent that risk and he did not do so.

[73]      In this case, I find that Mr. Ingalls failed to take reasonable steps to bring the contents of the waiver to Mr. Parker’s attention and that a reasonable person would have known that Mr. Parker did not agree to release Mr. Ingalls from negligently injuring him. 

Mr. Berezowskyj also relies on Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 in support of the argument that, on the facts, the scope of the Exclusion is not sufficiently broad to allow BW Limited to avoid liability to Mr. Fillingham, because the circumstances in which Mr. Fillingham suffered injury are beyond what the parties could be taken to have intended to exclude. 

In Tercon, the Province had accepted a bid in an RFP process from an ineligible party.  The Province sought to avoid liability to Tercon for breach of the bid contract on the basis of an exclusion clause that excluded liability in respect of “any claim for compensation of any kind whatsoever, as a result of participating in this RFP.”  The analytical framework was set out in the judgment of Binnie J. (dissenting in the result), with which the majority agreed, at paras. 122-123 [italics in original]:

[122]    The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence.  This will depend on the Court’s assessment of the intention of the parties as expressed in the contract.  If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis.  If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties” (Hunter, at p. 462).  This second issue has to do with contract formation, not breach.

[123]    If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts. 

The majority (agreeing with the trial judge) concluded (at para. 78) that the parties could not have intended to exclude a damages claim resulting from the Province unfairly permitting a bidder to participate who was not eligible to do so.  Cromwell J. wrote:

. . . I cannot conclude that the parties, through the words found in this exclusion clause, intended to waive compensation for conduct like that of the Province in this case that strikes at the heart of the integrity and business efficacy of the tendering process which it undertook.

In my opinion, the result in Tercon does not assist Mr. Fillingham. 

On the other hand, when I apply the analytical framework described by Binnie J. to the Exclusion, in my view, the intention is clear:  it is to exclude liability on the part of the Ski Area Operator to the Ticket Holder for “all risk of personal injury . . . resulting from any cause whatsoever” [underlining added].  “Any cause whatsoever” specifically includes, but is not limited to, negligence on the part of the Ski Area Operator.  Mr. Fillingham, as I have found, was very familiar with this language.  He had seen it many times, and carried on his activities on the basis that he was assuming “all risk of personal injury,” including, without limitation, risk of personal injury caused by the negligence of BW Limited.  That is what Mr. Fillingham did at Big White on March 4, 2013.

Mr. Fillingham, based on his evidence, knew that some of the time, the short cut was roped off, and some of the time it was not.  The essence of his complaint in this action is that, as of about Noon on March 4, BW Limited failed to adequately mark – by closing the rope line – a hazard it had created, and was negligent in doing so.  I have found that BW Limited was negligent.  However, in my view, what occurred is not so extraordinary or unique that it could be said the parties did not intend for it to be covered by the Exclusion.

In my opinion, the facts here are distinguishable from Parker.  Mr. Parker was injured by his teacher and instructor, someone whom Madam Justice Allan found Mr. Parker trusted not to harm him.  That is very different from the relationship Mr. Fillingham as a snowboarder had with BW Limited.  Given the words of the Exclusion, it would have been entirely unreasonable for Mr. Fillingham to expect BW Limited to be looking out for Mr. Fillingham’s well-being.

Mr. Berezowskyj submitted that, if the Exclusion were found to be valid and broad enough to encompass Mr. Fillingham’s claim, then there are strong public policy reasons for preventing a recreational operator from relying on a ticket waiver to avoid liability in circumstances where it actively creates the hazard from which its guests were not properly protected, and were in fact invited to court.  However, in my opinion, this is not a case where an overriding public policy (evidence of which was thin at best) outweighs the case in favour of enforcement of the Exclusion.

In support of the plaintiff’s alternative position that whether the hazard here falls within the scope of the Exclusion should not be determined on the basis of a summary trial, Mr. Berezowskyj cites Champion v. Ski Marmot Basin, 2005 ABQB 535 and Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (Ont. S.C.J.).  In both of those cases, the court determined that whether the defendant’s conduct and the resulting hazard fell within the scope of the waiver on which the defendant relied was a question that should be determined following a trial.  However, I agree with Mr. Kennedy that those cases are of little assistance because they are applying a summary judgment rule that is quite different from, and more limited than, the B.C. summary trial rule.

Summary and disposition

In summary, the Exclusion provides a complete defence to the plaintiffs’ claims against BW Limited.  The action is, accordingly, dismissed.

Costs will follow the event.

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