Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.
In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and was rendered quadriplegic while snowboarding the Defendant’s resort. He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.
The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate. In reaching this conclusion BC’s highest court provided the following reasons:
Post originally published here on my other legal blog combatsportslaw.com
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy. The Plaintiff participated in a tournament where he sustained injury. He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“. The Defendant argued that this waiver should be upheld and the lawsuit dismissed. The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“. Using this test the court found the waiver for injuries in classes could not extent to a tournament. In reaching this conclusion Madam Justice Matthews provided the following reasons:
 Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.
 I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.
 In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.
 Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.
 I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.
 The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.
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.
 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:
 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.
 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.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court. In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages. In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam. At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination. The Plaintiff refused to sign this. The Defendant brought an application to compel this document to be signed. In granting the application Madam Justice Hyslop provided the following reasons:
Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:
Orders on terms and conditions
(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.
In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)
grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.
Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.
By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.
When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.
Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.
The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.
For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here. From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.
Important reasons for judgement were released this week by the Supreme Court of Canada giving a robust interpretation to British Columbia’s Business Practices and Consumer Protection Act (the “BPCPA”).
In this week’s case (Seidel v. Telus Comminications Inc.) the Plaintiff was a customer with Telus. Her contract with Telus purported to strip her right to sue if she had a dispute with the company and instead restricted her to “private, confidential and binding arbitration“. In addition to this the contract purported to waive “any right (she) may have to commence or participate in any class action against Telus“.
The Plaintiff alleged that Telus engaged in deceptive billing practices. She launched a lawsuit and intended to make it a class action. She sued under s. 171 and 172 the BPCPA which in gave her the right to “bring an action in the Supreme Court” for damages and other relief in the face of “unconscionable acts or practices“. Section 3 of the BPCPA states that “any waiver or release by a person of the person’s rights, benefits or protections under this Act is Void except to the extent that the waiver is expressly permitted by this Act.”
Telus relied on the waiver and argued that if it’s customers had complaints they had to participate in mediation or arbitration but could not sue nor participate in a Class Action. In 5-4 split the Supreme Court of Canada disagreed and held that the BPCPA was paramount and that her court action “must be allowed“. The Court went further and allowed the Plaintiff to seek to certify the lawsuit as a class action holding that the class action waiver was part and parcel of the clause which violated section 3 of the BPCPA. In striking down the waiver the Canadian high court provided the following useful reasons:  …. My opinion is that to the extent Ms. Seidel’s claim in the Supreme Court invokes s. 172 remedies in respect of “rights, benefits or protections” conferred by the BPCPA, her court action must be allowed to proceed notwithstanding the mediation/arbitration clause. This includes her claims for declaratory and injunctive relief and, if granted, ancillary relief in the form of restoration to consumers of any money acquired by TELUS in contravention of the BPCPA.  The reason for this conclusion is simple. Section 172 provides a mandate for consumer activists or others, whether or not they are personally “affected” in any way by any “consumer transaction”. Section 172 contemplates such a person “bringing the action”. The action is specified to be brought “in Supreme Court”. The clear intention of the legislature is to supplement and multiply the efforts of the Director under theBPCPA to implement province-wide standards of fair consumer practices by enlisting the efforts of a whole host of self-appointed private enforcers. In an era of tight government budgets and increasingly sophisticated supplier contracts, this is understandable legislative policy. An action in the Supreme Court will generate a measure of notoriety and, where successful, public denunciation, neither of which would be achieved to nearly the same extent by “private, confidential and binding arbitration”….  ….from the perspective of the BPCPA, “private, confidential and binding arbitration” will almost certainly inhibit rather than promote wide publicity (and thus deterrence) of deceptive and/or unconscionable commercial conduct. It is clearly open to a legislature to utilize private consumers as effective enforcement partners operating independently of the formal enforcement bureaucracy and to conclude that the most effective form is not a “private and confidential” alternative dispute resolution behind closed doors, but very public and well-publicized proceedings in a court of law…  As to statutory purpose, the BPCPA is all about consumer protection. As such, its terms should be interpreted generously in favour of consumers: Smith v. Co-operators General Insurance Co., 2002 SCC 30,  2 S.C.R. 129, and ACS Public Sector Solutions Inc. v. Courthouse Technologies Ltd., 2005 BCCA 605, 48 B.C.L.R. (4th) 328. The policy objectives of s. 172 would not be well served by low-profile, private and confidential arbitrations where consumers of a particular product may have little opportunity to connect with other consumers who may share their experience and complaints and seek vindication through a well-publicized court action…  In summary, s. 172 offer remedies different in scope and quality from those available from an arbitrator and constitutes a legislative override of the parties’ freedom to choose arbitration. Unlike Quebec and Ontario, which have decided to ban arbitration of consumer claims altogether, or Alberta, which subjects consumer arbitration clauses to ministerial approval, the B.C. legislature sought to ensure only that certain claims proceed to the court system, leaving others to be resolved according to the agreement of the parties. It is incumbent on the courts to give effect to that legislative choice, in my view.
When Plaintiffs attend defence medical exams some doctors require patients to fill out questionnaires and waivers of liability. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law and concluding that Plaintiffs cannot be forced to sign waivers through the Court ordered independent medical exam process.
In today’s case (Mund v. Braun) the Plaintiff was involved in a motor vehicle collision and allegedly sustained some complex injuries. In the lawsuit the Plaintiff agreed to attend a defence medical exam with a neurologist (Dr. Makin). Dr. Makin requested that the Plaintiff sign a waiver form indicating that the Plaintiff “will not sue Dr. Makin outside of BC.”. As previously discussed, BC law provides doctors with a strong immunity from lawsuits arising from carelessness in the independent medical examination process. The reason for this waiver was to apparently protect the doctor against the remote chance that the Plaintiff could sue outside of BC. The Plaintiff refused to sign the waiver.
The Defendant brought a motion and the BC Supreme Court was asked to decide whether the Plaintiff could be forced to sign such a waiver. Mr. Justice Brown dismissed this motion finding that unless the Court of Appeal rules otherwise the law is settled that BC Courts don’t have jurisdiction to force plaintiff’s to sign such waivers. In addressing this point Mr. Justice Brown held as follows: In any case, on the question of requiring the plaintiff to sign the Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allan-Trensholme v. Simmie,  B.C.J. No. 720 (BCCA). I do not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement. On the narrow point of whether jurisdiction remains with the court under the Civil Rules to require a party to sign an authorization for documents in the possession of a third party but over which the party has sufficient control, e.g. the party’s clinical records kept by their physician, that is governed by the cited cases until such time as the Court of Appeal specifically rules on that. For now, the general question appears settled; and as for the facts at bar, in my view, the consent in this case falls squarely within the ambit of the authorities cited.
This case is also worth reviewing for the Court’s discussion of the extent of testing that can take place during a Court ordered exam. Dr. Mund wished to conduct electro-diagnostic testing of the Plaintiff. The Plaintiff refused. Mr. Justice Brown held that this test was permitted and in so finding stated as follows about doctors discretion during the testing process: I accept Dr. Makin’s explanation that electro-diagnostic studies are considered an extension of neurological examinations. I find the testing is minimally invasive, and would not invade the plaintiff’s privacy…
 Given the variety of causes attributed to the plaintiff’s symptoms, which include thoracic outlet syndrome, myofascial factors, soft tissue pathology in the neck and right shoulder, cervical spine disc disease with a degenerative factor and even diabetes II, diagnosis is obviously a not straight forward exercise in this case.
 I am satisfied nerve conductions studies are relevant to the issues raised and the pleadings and in the medical reports written for the plaintiff. The defendant submits there is at least a possibility the plaintiff’s tingling and numbness could result from degeneration in his cervical spine or unrelated nerve problems in his right arm; and the origin and causation of his neck, shoulder and arm symptoms are related to the pleadings.
 I also agree that affording Dr. Makin leeway to conduct nerve conduction studies he sees as necessary is required in order to ensure reasonable equality between the parties. The studies will not necessarily duplicate earlier ones. An electro-diagnostic study is a reasonable extension of the clinical examination if the examining physician comes to judge it necessary to form, or confirm, their professional diagnostic opinion.
 Therefore, the plaintiff will submit to electro-diagnostic testing by Dr. Makin if requested to do so.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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