By: Jassmine Girgis
PDF Version: Incorporating Waivers of Liability into Contracts
Case Commented On: Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)
Standard form agreements raise unique contracting issues. They are drafted by the more powerful party, they are take-it-or-leave-it agreements with no room for negotiation, and they typically contain waivers to limit the drafting party’s liability. And yet, most providers of services and/or goods use them to transact with the public. Given the fact that consumers rarely read these agreements before signing off on them, how can the requirement of consensus ad idem – i.e. a meeting of the minds – be established? Anticipated or expected terms do not give rise to this issue, but, if a clause is particularly onerous or unexpected, such as an “own negligence” clause, the drafting party must establish that the other party was notified of the clause, either through reasonable notice or previous experience. Otherwise, the clause will not be incorporated into the agreement.
These issues were raised in the recent BCCA decision in Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII) (Apps), a case involving a snowboarding accident at a British Columbia resort. After a summary of the decision, this post analyses the concept of knowledge when it comes to unsigned documents.
This post also argues that the current state of the law does not require as much as it should of occupiers, given the substantial benefit they derive from these waivers at the substantial cost to plaintiffs. It discusses the public policy choices involved in providing occupiers such broad scope to limit their liability, and proposes stricter rules to govern these kinds of clauses to better protect customers. Continue reading
