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A Public Policy Exception to an Enforceable Release of Liability

Liability waivers for adventure sports have received appellate-level support in recent years; however, a new Court of Appeal decision identifies a limit to the enforceability of such waivers.  In Niedermeyer v Charlton 2014 BCCA 165 the Province’s highest court rejected a waiver of liability on the basis that it would be contrary to public policy to allow private parties to contract out of BC’s mandatory public automobile insurance regime.

The plaintiff – a visitor from Singapore – embarked on a tour to Whistler, which included a zip lining experience offered by the defendant.  Prior to taking the trip, the plaintiff signed a well-drafted release which included a waiver of claims arising from travel to and from the tour areas. The plaintiff suffered serious bodily injury when the bus in which she was riding as part of the excursion went off the road. The bus and its operator were insured by the Insurance Corporation of British Columbia (ICBC) under BC’s mandatory public automobile insurance program.  The plaintiff sued for damages. The defendant driver admitted he was negligent but relied on the waiver as a full defence.

The trial judge dismissed the plaintiff’s claim on the grounds that the release was a complete defence. In a split decision, the majority of the Court of Appeal overturned this decision on the basis that insofar as the release “purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable.”  The Court added, “the ICBC regime is intended as a benefit for the public interest … It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime.”

The outer limits of comprehensive activity waivers are being tested in our courts.  Motor vehicle accidents that are incidental to the main activity are outside the ambit of such agreements.  On this analysis, perhaps it is similarly contrary to public policy to allow private parties to contract out of situations where public heath care may be expected to respond to injuries, thus defeating the BC’s rights to claim for health care costs under the Health Care Costs Recovery Act?  Time – and case law – will tell.

Case summary by: Fareeha Qaiser and Neil Carfra