The British Columbia trial court held last year that releases signed by participants in ziplining were a complete defence to the negligence of the operator: Loychuck v Cougar Mountain Adventures Ltd, 2011 BCSC 193. The trial judge found that the operator’s waiver was not unconscionable either at common law or under BC consumer protection legislation. The BC legislature had, furthermore, declined to act on a 1994 report which recommended limitations on waivers of liability for commercial recreational activities.
The BCCA has upheld the trial judgment: 2012 BCCA 122. The releases were discussed in the light of Tercon Contractors Ltd v BC (Transportation and Highways), 2010 SCC 4, and found not to be unconscionable. There was no inequality of bargaining power or substantial unfairness in requiring a release as condition of participating in a dangerous activity; this did not offend ‘community standards of commercial morality’. The releases were also not offensive to public policy (and no amount of law reform commission reports recommending legislation to preclude waivers for recreational activities established a public policy against them). It would be against public policy to attempt to rely on a release where one had knowingly or recklessly endangered the public, but not in a situation where there had merely been negligence that caused injury to a participant with ‘some measure of control’ over the activities in question. The releases were not unconscionable under consumer protection legislation (assuming it applied) and arguments predicated on misleading advertising or lack of consideration also failed.