Introduction
Hello and welcome to the inaugural edition of Canadian Climbing Law.
To kick this project off, I thought I’d start with a case called Arif v. Li, 2016 ONSC 4579 (CanLII) It is not a recent case but it is a rare one. At this time, it is the only reported case where a Canadian court has ruled on liability for a climbing accident. Hence it is an important precedent for the climbing community and landowners/managers.
This case concerns a plaintiff who was injured while participating in a rock climbing course. The course was held in a conservation area. He sued the instructor (guide company) and the landowner (conservation authority). The court decided neither of these parties was liable to the plaintiff for his injuries. This decision was based on the fact the plaintiff had:
signed liability waivers releasing each defendant; and
voluntarily assumed the risks of climbing.
In the result, the court dismissed the plaintiff’s claim.
Background
This court decision arose out of a summary judgment motion. This is a procedure whereby a party can ask a judge to decide a claim on the basis of affidavit evidence instead of oral testimony at a trial. Affidavits are written statements made under oath.
While the judgment is from 2016, the accident at issue happened in 2013. The accident occurred during an introductory climbing and rappelling course offered by the defendant guide company. The course was held at a crag near Toronto called Rattlesnake Point, which is owned and managed by a local conservation authority. Rattlesnake Point is a popular place to teach climbing. The plaintiff injured his leg when he fell from a height of approximately two meters while climbing (presumably) on a top rope. He was being belayed by another course participant.
Court Enforces the Waivers
As a condition of participating in the course, the plaintiff was required to sign two liability waivers (also known as releases), one from the conservation authority and the other from the guiding company.
To determine whether the waivers defeated the plaintiff’s claims, the court analyzed whether:
the plaintiff was bound by the terms of the waivers?
the waivers covered the plaintiff’s claim?
The court answered each of these questions in the affirmative.
With respect to the first question, the court found the plaintiff understood the purpose of the waivers, he signed them with intention, and the defendants had taken reasonable steps to make him aware of their content. The court also concluded the waivers were neither unconscionable nor contrary to public policy.
With respect to the second question, the court found both waivers contained broad releases of liability. That is, the ordinary meaning of the wording of the releases unambiguously conveyed to any reasonable person that the plaintiff had agreed to release the defendants from all claims for personal injury arising from his rock climbing activities due to any cause whatsoever. The waiver explicitly included causes such as negligence, breach of contract, or breach of any statutory or other duty of care (these are all different grounds on which plaintiffs can, facts depending, advance claims).
Given the court found the liability waivers enforceable against the plaintiff, his lawsuit could not succeed.
Court Finds Plaintiff Voluntarily Accepted All Risks of Rock Climbing
The waivers alone would have been sufficient to defeat the plaintiff’s claim, but the defendants also argued, regardless of the waivers, the defendant had voluntarily assumed all risks of climbing. This is a defence known as volenti non fit injuria.
The defendants advanced this additional, and independent, basis on which the plaintiff’s claim could be dismissed in case the court refused a dismissal on account of the waivers. In litigation, this is known as making an argument “in the alternative”.
The court also agreed with the defendants’ second ground for dismissal. It found the plaintiff knowingly rock climbed and understood it was risky. There was also no evidence his judgment was clouded by alcohol or anything else.
Accordingly, this was another reason the plaintiff’s claim could not succeed.
Takeaways
For anyone interested in Canadian law applied to climbing, especially as it relates to third party liability, this is a significant case. As I mentioned: it is presently the only instance of a court ruling on liability in a lawsuit arising out of a climbing accident. There are few court decisions addressing climbing at all, let alone liability for a given claim. Given the popularity of the sport, this is noteworthy.
Canadian law can offer powerful protection to landowners who permit climbing and climbers who teach it. Courts will enforce waivers of liability relating to climbing. Courts can also decide claims will not succeed where a plaintiff has voluntarily assumed the risks of climbing.
Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.