Carfra Lawton LLP | Victoria BC

Courts confirm validity of broad exclusion clauses for recreation providers

The plaintiff in Fillingham v. Big White Ski Resort Limited 2017 BCSC 1702 was a regular patron of Big White Ski Resort. He frequently used a shortcut path from the ski hill to a resort area. Generally, the ski patrol would open the rope line across the shortcut when it was safe to use, and close it when snow had been cleared from the resort area, which removed the path and caused a large drop. On the date of the accident, the snow had been cleared, creating a 10-foot drop, but the rope line had not been closed. The plaintiff fell off the drop and broke his leg.

The judge found that the ski resort was negligent in failing to close the rope line or otherwise mark the hazard of the drop. However, she found that the exclusion clause printed on all lift tickets and posted prominently around the property could be relied on as a complete defence to the claim. The clause clearly stated that liability was excluded for “all risk of personal injury…resulting from any cause whatsoever.” She rejected the plaintiff’s argument that the large drop in a known shortcut path was an unusual hazard that was beyond what one might reasonably have expected to have accepted in using the ski hill. The plaintiff was aware of the exclusion clause and used the facilities on the basis that he was assuming “all risk of personal injury,” including risk of personal injury caused by the negligence of the ski hill. There was no strong public policy argument that would outweigh the case in favour of enforcement of the exclusion clause.

This case demonstrates that the courts will allow recreation providers to rely on broad exclusion clauses to protect themselves from negligence claims, even for activities that are not directly related to their core operations, as long as their patrons are made aware of the clauses.

Case law summary by Karen Orr