BC INJURY LAW – Page 41 – The MacIsaac Group of Law Firms

BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

Written by admin on November 7, 2017. Posted in Uncategorized.

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.
In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant. The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice. As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.
The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages. The BC Court of Appeal disagreed. In upholding the trial result the Court provided the following reasons:

[54] Failure to mitigate is a positive allegation that should be pleaded and argued at trial: Hosking v. Mahoney, 2010 BCCA 465 at para. 34. Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55] In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

…

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56] The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate. A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57] In my view, the respondents’ pleading is clearly not deficient. In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury. Here the pleading is explicit.

[58] Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis. These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59] The issue of mitigation was both specifically pleaded and extensively explored at trial. Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment. Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath. The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60] In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages. I see no merit to this ground of appeal.

BC Court of Appeal – Medico-Legal Reports Are Not Mandatory for Injury Claim to Succeed

Written by admin on October 31, 2017. Posted in Uncategorized.

In what is one of the longest running personal injury claims I have come across, reasons for judgement were published today by the BC Court of Appeal finalizing a lawsuit started over 20 years ago.
In today’s case (Jalava v. Webster) the Plaintiff was tackled and badly injured by the Defendant who was “under the mistaken impression that Mr. Jalava had left the café without paying his bill“.
The Plaintiff started a lawsuit in 1996. He was self represented. He obtained an order that the Defendant pay him damages to be assessed. The claim dragged on for years without an assessment taking place and a Chambers Judge eventually dismissed the claim noting that “ it was legally impermissible for the Court to assess damages for personal injuries without a medical-legal report“.
The Plaintiff appealed and BC’s highest court overturned the result noting that a medico-legal report was not a required part of a personal injury prosecution.
The court did, however, in the absence of medical evidence assess a token judgment of $100 noting “this matter has dragged on long enough“.
In commenting on the need of medico-legal reports in personal injury lawsuits the Court noted as follows:

[11] First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. Jalava told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.

[12] However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. Jalava’s injuries.

[13] I also agree with counsel that the chambers judge should not have dismissed Mr. Jalava’s claim on his own motion and without prior notice to Mr. Jalava. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. Jalava had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.

[14] In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. Jalava’s damages at $100.

$70,000 Non-Pecuniary Assessment for Chronic, Non-Debilitating Soft Tissue Injuries

Written by admin on October 30, 2017. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.
In the recent case (Dosangh v. Xie) the Plaintiff was involved in a rear-end collision in 2013. The Defendant admitted fault. The crash caused soft-tissue injuries which lingered to the time of trial and had a guarded prognosis for full recovery. In assessing non-pecuniary damages at $70,000 Mr. Justice Weatherill provided the following reasons:

[96] I accept that the plaintiff continues to suffer the consequences of the Accident and that her condition has developed into one of chronic pain, the severity of which depends on her level of activity, particularly at work and at home. The more active she is and the more she pushes herself, the more significant her pain.

[97] But, I also find that the plaintiff is moving in a positive direction in terms of her recovery despite her daughter’s and Ms. Hundal’s evidence to the contrary. My assessment is that they were both doing their best to help the plaintiff’s case and were perhaps not as objective as they could have been…

[101] I accept that the plaintiff received soft tissue type injuries in the Accident that have not resolved. I accept that she continues to be in pain, although not the type of pain that is debilitating. The plaintiff is able to function at work and at home, but with ongoing limitations. She can perform the duties she did before the Accident, but in pain, some days worse than others.

[102] The fact that the pain moves around her body depending on what she is doing, for example from the left shoulder to the right shoulder and back depending on if she is over-using an area, is, in my view, not overly significant. That is the nature of chronic pain, which could be non-organic and psychologically based.

[103] I accept that the past four years since the Accident have taken a toll on the plaintiff. She struck me as somewhat of a perfectionist at work and at home and she has been unable to meet her own expectations. Her energy is reduced. That has no doubt affected her psychologically resulting in her depressed mood…

[108] In the end, the assessment of general damages is based on the individual plaintiff and how the injuries have affected him or her physically, psychologically, vocationally, socially and recreationally. I have considered the plaintiff’s particular circumstances here, the fact the Accident occurred over 4 years ago, my assessment of the plaintiff as a witness, the chronicity of her pain together with the fact that she is improving but with a somewhat guarded prognosis. I am satisfied that with the continued counselling and therapies that I am ordering, she will continue to improve, will continue to function, but will experience ongoing pain to some degree.

[109] I assess general damages at $70,000.

$150,000 Non-Pecuniary Assessment for Chronic Facet Joint Syndrome

Written by admin on October 19, 2017. Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases.

Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.
In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for. The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties. This was imposed on pre-existing a substance abuse disorder. The prognosis for recovery was poor. In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:

[68] In this case, I would summarize the significant factors as follows:

1. The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2. The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3. The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4. The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5. The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6. While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7. The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8. Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9. The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident.

…

[71] Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.

Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

Written by admin on October 18, 2017. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries caused by a collision.
In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van. Fault was admitted by the offending motorist. The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery. In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230] From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back. The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain. This pain worsened and she began to have symptoms in her left leg. She could not walk or stand for any extended length of time. She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231] Ms. Ali’s left leg symptoms became worse. She was now dragging her leg as she walked. Her back pain became worse as well. She had disc decompression surgery, focused on her leg symptoms, in June 2014. Her left leg symptoms improved although her back pain remained.

[232] Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder. She has anxiety and nightmares and in that respect has been diagnosed with PTSD. Her chronic pain and depression combine and aggravate one another. She does little in the way of activities with her son aside from walking him to and from school. She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233] As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video. I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234] Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones. She is irritable and ill-tempered. Her relationship with her husband is poor. She feels a sense of worthlessness and has had thoughts of suicide. She does, however, have some good days when she is happy.

[235] In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life. Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

…

[237] I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present. In both cases non-pecuniary damages of $180,000 were awarded. Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.

BC Court of Appeal Confirms Limited Small Claims Appeal Rights

Written by admin on October 18, 2017. Posted in Civil Procedure.

Reasons for judgement were released today by the BC Court of Appeal confirming the limited appeal rights from small claims lawsuits.
In the recent case (Jacques v. Muir) the Plaintiff brought a medical negligence claim in small claims court that was dismissed based on a previous release that was signed. The Plaintiff appealed to the BC Supreme Court where the claim dismissal was upheld.
The Plaintiff then further appealed to the BC Court of Appeal who confirmed that the Supreme Court order was final and no further right of appeal exists in the circumstances. In upholding the claim dismissal the Court provided the following reasons:

[15] Section 13 of the Small Claims Act sets out the powers of the Supreme Court on an appeal in a small claims action. Section 13(2) states “there is no appeal from an order made by the Supreme Court under this section.”

[16] The chambers judge properly held that s. 13(2) precludes an appeal to this Court of the order dismissing Ms. Jacques’s application. As this Court said in Pour, “no order of the Supreme Court made in appeal proceedings in a small claims action can be appealed to this Court” (at para. 7).

[17] Moreover, s. 5 of the Small Claims Act sets out the avenues for appeal from an order made by a Provincial Court judge:

Right of appeal

5 (1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1).

[18] As the order of Judge Low was not made “after a trial”, arguably pursuant to s. 5(2) of the Small Claims Act the order was not appealable at all, but I need not decide this issue in the circumstances.

[19] For these reasons I would dismiss the application to vary.

Punitive Damages Awarded Against Suspended Driver Involved in Hit and Run Collision

Written by admin on October 16, 2017. Posted in Uncategorized.

In a rare case awarding punitive damages in a motor vehicle collision case reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, making such an award.
In the recent case (Howell v. Machi) the Plaintiff pedestrian was struck by a motorist who fled the scene of the collision. The Plaintiff was jaywalking at the time and found partly at fault for the crash. The Defendant was identified. He had a suspended licence at the time of the collision. In finding these circumstances warranted an award of punitive damages Madam Justice MacNaughton provided the following reasons:

[517] Ms. Howell was unable to refer me to any case in which punitive damages had been awarded in a motor vehicle accident case involving a hit-and-run. However, in Legualt v. Tiapis, 2015 BCSC 517, Master Harper dismissed an application to strike a claim for punitive damages against a breached defendant for leaving the scene of an accident on the basis that she could not conclude that the punitive damages claim would prejudice or embarrass the fair trial of the proceeding. As that case did not proceed to trial, there is no authority for whether punitive damages are appropriate in a hit-and-run situation.

[518] Punitive damages have been awarded against defendants who have shown reprehensible conduct in causing motor vehicle accidents. For example, punitive damages have been awarded in the following cases relied on by Ms. Howell:

· In McIntyre v. Grigg, 83 O.R. (3d) 161 the Ontario Court of Appeal reduced a jury’s $100,000 punitive damage award to $20,000 against a defendant driver whose blood alcohol level, at the time of the accident, was two to three times over the legal limit;

· In McDonald v. Wilson, [1991] B.C.J. No. 3137, Justice Hood awarded $5,000 in punitive damages and $1,000 in aggravated damages against a defendant driver who intentionally tried to strike the plaintiff. Similarly, in Stevenson v. Vance, [1988] N.S.J. No. 384, $2,500 in punitive damages was awarded against a defendant who intentionally ran over the plaintiff’s legs after stealing from a store in which the plaintiff worked as a security guard; and

· In Herman v. Graves, 1998 ABQB 471, a plaintiff was awarded $3,500 in punitive damages arising from a road rage incident and, more recently, in McCaffery v. Arguello, 2017 BCSC 1460, I awarded $30,000 in punitive damages arising from a road rage incident.

[519] I have concluded that Mr. Machi’s actions are worthy of denunciation and retribution beyond the compensatory awards I have made in favour of Ms. Howell. In particular, although I concluded that his failure to stop after striking Ms. Howell did not amount to further negligence on his part, it is relevant to the punitive damages analysis. I have also taken into account the fact Mr. Machi has repeatedly shown complete disregard for the suspensions of his driver’s licence.

[520] In all the circumstances, I award Ms. Howell punitive damages of $100,000 against Mr. Machi.

BC Supreme Court – Suggesting Driver At Fault for Collision Based on Past Convictions is "Frivolous"

Written by admin on October 2, 2017. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.
In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant. Fault was disputed. Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a. on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b. on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c. on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d. on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e. on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence. In dismissing the application Master Wilson provided the following reasons:

[22] The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23] In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24] I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25] The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26] It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27] In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28] After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29] I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.

$220,000 Non-Pecuniary Assessment for Leg Amputation and Chronic Pain

Written by admin on September 28, 2017. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a leg amputation caused by a vehicle collision.
In today’s case (Bye v. Nelson) the plaintiff was operating a dirt bike which was involved in a collision with an ATV operated by the Defendant. The collisions caused severe injuries including a left leg amputation.
In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:
[3] …Not in dispute is that Mr. Bye’s dirt bike and Mr. Newman’s ATV collided near a curve in the road. Both vehicles were damaged, and Mr. Bye was left with a number of injuries including a fracture to his neck and multiple fractures to his legs. Although Mr. Bye was rushed to the hospital, his injuries required a through-knee amputation of much of his left leg.

[93] Mr. Bye is a young man. He was 35 years old at trial and 31 at the time of the accident. He was an active man who enjoyed various recreational pursuits. He had been employed by Teck Metals as a carpenter commencing February 2010. It was a job he loved, which paid him handsomely.

[94] The injuries from the accident have changed his life dramatically forever. He now suffers from daily pain and fatigue as a result of the amputation and is permanently disabled from returning to carpentry work and to many of his recreational activities. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries have either cut off, or severely limited his enjoyment of these.

[95] Additionally, Mr. Bye is now a father, with his son born during the litigation, in 2016. While he is still able to play with and care for his son, many of these interactions are made more difficult by his injury. He testified to the difficulties of lowering himself to the floor to spend time with his son…

[102] Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.

Negligent Ski Resort Saved From Liability Based on Waiver

Written by admin on September 27, 2017. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court dismissing a lawsuit against a negligent ski resort based on a waiver patrons must agree to when using their facilities.
In today’s case (Fillingham v. Big White Ski Resort Limited) the Plaintiff was skiing on a short cut at the end of a ski run named ‘highway 33’ to a parking lot which was, at the time, open for use for skiers. Shortly prior to this a snowplow came through exposing users of the path to a 10 foot drop to the parking lot. The Plaintiff fell, was injured and sued for damages.
The Court found that the ski resort was negligent with Madam Justice Adair noting as follows

…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.

[39] 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.

Despite the finding of negligence the Court went on to dismiss the lawsyuit noting a broad worded waiver covered this situation. In reaching this conclusion the court provided the following reasons:

[51] 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.

[52] 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.

…

[54] 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.