On August 25, 2010, the Quebec Court of Appeal handed down a judgment dealing with the duty of safety of ski resorts that offer skiing lessons to young children. In Les Stations de la vallée de St-Sauveur inc. v. M.A.[i]the Court analyzed in depth the principles of contractual civil liability that apply to the operators of a downhill ski school in supervising pupils. The scope of this decision is such that it could reach beyond ski resorts and affect any organization that offers supervised sports activities for children. A synopsis of the facts is provided below as an aid to a fuller understanding of the reasons of Nicholas Kasirer, J.A., in which Duval Hesler and Chamberland JJ.A., concurred.
On January 12, 2003, M.A. and N.A. took their minor children X and Y to Mont Olympia, a ski resort north of Montreal managed by appellant Mont Saint-Sauveur International ("MSSI"). Both children were registered for group ski lessons under the supervision of appellant Les Stations de la Vallée de Saint-Sauveur inc. ("Stations"), a wholly-owned subsidiary of MSSI. X, who was nine years old at the time, had only started skiing the previous season and had always skied with an adult. Based on representations made by his parents when registering X by telephone, Stations had registered X as a novice skier. The group he joined consisted of eight other children of about the same age and level of proficiency (step 1 and step 2 skiers). The 17-year-old instructor held a Canadian Ski Instructors Alliance (CSIA) certification. Although it was not her first experience of ski instruction at this level, she had only one year of experience and had never had to supervise a group of more than four pupils.
At the end of X's lesson on January 12, 2003, the nine children and the instructor were at the top of the hill preparing to ski down to the meeting point with their parents at the base of the hill. The run was classified as "easy" and was often used for ski lessons due to its gentle slope; however, one of the children began to cry and refused to ski down. The instructor then told the remaining children to continue down on their own to the meeting point. From where the instructor stayed with the reluctant child, she could not see either the base of the slope or the meeting point.
As he skied down, X lost control of his skis and went off the trail. He was found lying in the woods. The ski patrol rendered immediate first aid and he was rushed to hospital. He had sustained a cranial fracture, swelling and severe brain lesions (his helmet was shattered). Both lungs were punctured. His heart failed for 18 minutes. After he was resuscitated and stabilized, X underwent specialized cranial and neurological surgery, following which he was in a coma for 13 days. As a result of his neurological injuries, X has significant cognitive disabilities that will permanently affect his ability to earn a living.
The Judgment at Trial
On their own behalf and on behalf of their two children, X's parents sued appellants on the ground that, as the manager of the ski hill and the operator of the ski school, they were liable for X's injuries. At trial, Zerbisias J. found that appellants, through the instructor, had failed to discharge their obligation to ensure the children's safety. According to Zerbisias J., this fault was the direct cause of X's injuries and consequently appellants were liable to make full reparation to both X and his parents. Meanwhile, the action taken on behalf of X's sister was dismissed in the absence of evidence of prejudice sustained by her. Appellants were ordered to pay X's parents $2,364,169 in their capacity as tutors to a minor, and damages of $134,162 to the father and $206,835 to the mother in their personal capacity, with interest and the additional indemnity calculated from 2003. As of today's date, the total award amounts to over $4.1 million.
The Judgement of the Court of Appeal
The Court of Appeal commenced its analysis by clarifying an ambiguity in the lower court's decision, namely, whether the source of the parents' action was contractual or extracontractual liability. Kasirer J.A. considered that the language used by Zerbisias J. and the authorities she cited confirmed that she treated the liability as contractual. One of those authorities was L'Écuyer c. Quail,[ii]which states that the operator of a sports facility that charges the public for the use of its facilities has an implicit contractual duty to supervise and monitor its patrons. This obligation of means, which is accessory to the paid service, requires the operator to take [Translation]"all necessary precautions to ensure the safety of the persons frequenting its establishment."[iii]Relying on another decision of the Superior Court in a ski school case,[iv]the Court of Appeal observed that a contract for ski lessons contains a similar obligation of means which requires the operator to ensure the safety of pupils. Thus, by accepting payment for lessons, Stations (and its parent MSSI) undertook to take all reasonable precautions to ensure X's safety.
Kasirer J.A. went on to address one of appellants' arguments that, when registering X for group lessons, which cost less than private lessons, the respondents could not expect X to be under constant supervision. According to the judge, even though it is reasonable to expect that a child would receive less personal attention from the instructor in a group lesson, there was nevertheless an implied agreement in the contract between respondents and appellants that X would not be required to complete an unaccompanied run. To find otherwise would be to deny the expectations of those registering children for ski lessons. Although the respondents had tacitly accepted the inherent risks of downhill skiing by registering their children for the course, their expectation that the instructor would constantly supervise X's downhill runs was legitimate.
For these reasons, the Court found that the appellants had failed to discharge their obligation of safety owed to the respondents due to the instructor's failure to provide adequate supervision of X. Kasirer J.A. agreed with Zerbisias J. as to the causal link between this failure and the injuries sustained by X, since evidence was adduced that if the instructor had not stayed behind with the other child, she would have led her pupils down by a safer route, far from the spot where X fell.
The Court agreed with the trial judge on the quantum of damages awarded to X and to his parents in their personal capacity.
Relevance of the Judgment
This judgment confirms the principle first laid down in L'Écuyer that the operator of a sports facility which charges for use of the facility has an obligation to take appropriate measures to ensure the safety of its patrons. However, it could be argued that with this case the Court of Appeal has now set a higher standard of care for organizations that supervise groups of children. The Court emphasized that when the instructor was faced with the dilemma of caring for the tearful child and the need for the other eight children to meet their parents at the bottom of the hill, she should have requested the assistance of other instructors or skiers and should not have allowed the children to attempt the run without accompaniment.[v] This may suggest that the Court considers that young children should never practise any sports activity that involves an element of risk without constant supervision by the organizers.
One may well wonder what impact this judgment will have on the standards of conduct not just for ski resorts but also all organizations that offer similar activities, such as water sports and various team sports with adult supervision. This judgment will certainly be proposed by plaintiffs' counsel as guidance for the courts in analyzing the conduct of defendants in future litigation.