League and Williams Lawyers

Tag: liability

  • Slip and Fall Injury: Who’s Liable for Icy Sidewalk Injuries?

    Slip and Fall Injury: Who’s Liable for Icy Sidewalk Injuries?

    In a recent incident in Burnaby, a man claimed that the owners of a property he had slipped and injured himself on were liable due to their failure to fully clear the sidewalk of snow and ice. Municipalities across BC have various rules about maintaining sidewalks in front of homes, for example, property owners in Vancouver must clear the snow and ice from the sidewalks around their property before 10:00am each morning. Failure to comply with these rules can lead to fines issued by the district.

    How the Fall Happened

    A shovelled sidewalk is not necessarily ice-free.

    Mr. Der, an elderly man, and his wife were walking home from the grocery store one snowy morning when he slipped and fell on black (clear) ice. Someone had visibly shovelled the sidewalk, which gave Der the impression that it was ice-free. Der fell hard on his back and neck, suffering “serious, life-changing injuries.” The emergency responders who arrived to attend to Der noted how slippery the area was and needed to put blankets on the ground to maneuver and assist him.

    Der was seeking damages for negligence against the owners of the property adjacent to this sidewalk. In Der v. Zhao (2019), Der argued that Zhao and Huang (the property owners) were liable under common law principles of negligence. Sometimes, a slip and fall case like this would find liability under the Occupiers’ Liability Act; however, the City owned the sidewalk, not the defendant. Initially, Der chose to include the City of Burnaby in his lawsuit, but he discontinued the action against them after conducting an examination for discovery with a City of Burnaby representative.

    This case was a summary trial in the BC Supreme Court, which means that it was based solely on written evidence. A judge can hear a summary trial much faster than a traditional trial. The courts used affidavits, expert reports and written arguments as evidence in this case.

    The Sidewalk May Have Been Better Off Without the Shoveling and Salting

    The issue of the case was whether Zhao and Huang owed Der a duty of care. Was this injury foreseeable to a reasonable person given the circumstances?

    Prior to the accident, the couple salted and shoveled the sidewalk, clearing all the ice and snow that they saw. Neither of them was ever aware that there was black ice on the sidewalk. Huang noted that she took particular care to clear the sidewalks this day because her and Zhao were moving into the house the day the incident occurred. She applied salt to all the ice and slippery areas that she noticed – to ensure the movers would not slip.

    The accident reconstruction expert of the trial claimed that the act of clearing the ice and snow actually made this particular area even more slippery. With the temperature fluctuating above and below zero degrees Celsius throughout the day, coupled with shovelling, salting, and snow and rain, the sidewalk developed significant black ice. The expert believed that the snow, if not shovelled, could have made the path less slippery by providing some traction.

    Der argued that leaving the sidewalk untouched would not have led to a voluntary assumption of responsibility. He claimed that the reasonable person in this situation would have foreseen the possibility of black ice developing and removed it.

    Outcome of the Case

    The judge ruled Der unsuccessful in proving his argument. It was deemed common sense that shovelling snow and salting the sidewalks would indeed make it safer or less dangerous – not make it more hazardous. It was unreasonable for Zhao and Huang to foresee this anomaly. The judge also stated that, “it [was] not reasonable to interpret an attempt to comply with a bylaw as a voluntary undertaking to the City to maintain the sidewalk and resolve dangers that later form on it.” Zhao and Huang were not held liable for this injury simply because they may have unintentionally made the sidewalk more dangerous than if it was left untouched. The summary case was ruled in favour of Zhao and Huang.

    Possible Future Implications of the Case

    The judge also referred to the implications that this case would have for the future well-being of society. If Der was successful with this claim, people may be less willing to clear their sidewalks, leading to an increase in injuries. If the claim were succesful, it could mean that property owners who attempt to clear sidewalks assume greater liability for slip and fall injuries.

    Going forward, homeowners should continue to clear snowy sidewalks around their homes. This will minimize the risk of injuries and help to avoid bylaw fines. Pedestrians walking in snowy conditions should always be extremely cautious as black ice could be anywhere.

    Looking for more information? Read our page on slip and fall injury claims in BC.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Slip and Fall Injuries: When the Business is Liable for an injury

    Slip and Fall Injuries: When the Business is Liable for an injury

    In North Vancouver, a tragic accident occurred at a Real Canadian Superstore when a woman slipped and fell, resulting in severe injury to her head. The case of Harrison v. Loblaws Inc. (2018) details the importance of safety procedures in businesses and when a store can be held liable for an accident such as a slip and fall.

    How the Slip and Fall Injury Occurred

    In this case brought to the BC Supreme Court, a woman was shopping at the Real Canadian Superstore (owned by parent company Loblaws Inc.). As she walked down an aisle, she failed to notice a large pool of liquid laundry detergent spilled on the floor. She stepped into the spill and immediately “extended her hands in a manner akin to what one does when surfing as she started to slide towards the end cap.” The woman eventually fell, hitting her eyebrow on the end cap of the aisle. Still sliding, the woman fell backwards, smashing the back of her head against the floor and landing in the pool of blue laundry detergent. A customer rushed to her aid, as there was blood underneath her. Her clothing and hair were soaked with the detergent. An ambulance arrived at the scene and she was taken away on a stretcher to the hospital. The woman had no recollection of the time between hitting her eyebrow to landing on her back. She also could not recall various pieces of the day, such as periods of time spent in the ambulance or at the hospital.

    The Injuries Sustained

    The woman was described as active, engaged, outgoing, fun loving and hard-working prior to the accident. After suffering this severe blow to the head, she was unable to work her job, her mood and personality have completely changed, and she suffers frequent headaches, dizziness, difficulty concentrating, and frustration. Unfortunately, this woman’s quality of life diminished significantly as a result of the injury.

    Why the Defence was Unsuccessful Against the Slip and Fall Injury Claim

    Businesses must take reasonable steps to keep their premises safe at all times.

    Under the Occupiers’ Liability Act in BC, to not be held responsible for injuries sustained on one’s property, the property owner or occupier must take reasonable steps to keep their premises safe. This act is meant to protect both parties involved in an accident. Customers can expect businesses’ premises to be safe and not have to fear for injury; and on the other hand, businesses can expect to be safe from liability in the event of an accident, assuming that they are acting in a reasonably safe manner.

    The woman sued Loblaws Inc. for negligence, claiming that the employees did not take the reasonable steps to keep the store’s premises safe. To summarize, Loblaws’ defence was that they had “sweep logs” for employees, where they specified which employee was responsible for cleaning each section of the store every hour. The sweep logs vaguely described the various areas of the store. The aisles had recently been moved and the logs did not accurately reflect these changes. Problems arose when the employees could not, in specific detail, describe each section of the store according to the sweep log. Because of this ambiguity in the sweep logs, the defence could not prove that the location of the detergent spill was recently monitored or cleaned.

    This Loblaws location also failed to follow the company’s incident reporting policy. The store manager did not fill out an incident report, keep a copy of the sweep log, record the names of staff that were working, take photos of the scene, produce a drawing of the scene or get a statement from each employee working at the time of the accident. This made it clear to the courts that, while Loblaws did have a policy in place to reasonably prevent accidents like this, the store failed to follow the policy for this accident.

    If the sweep logs accurately represented the premises and the manager closely followed the safety procedures following the incident, it may have been deemed that the business did take the reasonable steps to keep their premises safe. However, this was not the case and the judge ruled in favour of the woman. She received a total of $755,000 in compensation for

    • Non-pecuniary damages,
    • Past loss of income,
    • Loss of future capacity,
    • Cost of future care and,
    • Special damages.

    While the woman won this settlement, she still must live with the injuries she sustained, possibly for the rest of her life. We encourage everyone to be careful in their everyday lives and to be aware of where you are stepping. If you or someone you know has been injured in a slip and fall, contact an experienced injury lawyer to help.

    For more information, read our page on slip and fall injury claims in BC.

    Have a question about slip and fall claims or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • You signed a waiver, but did you say goodbye to your right to sue in BC?

    You signed a waiver, but did you say goodbye to your right to sue in BC?

    A waiver (or release) is an incredibly common and powerful clause.  Hardly a day goes by without coming across one or more of them.  Getting on a chairlift or a ferris-wheel, parking a car, or even leaving clothing at a dry cleaner often involves agreeing to a waiver.  A waiver is an agreement not to claim for damages caused by someone else’s carelessness.  They are often effective in avoiding liability, however, under certain circumstances they will not be enforceable.

    Agreeing not to sue

    The core purpose of a waiver is to promise not to sue for any injury, death or property damage arising out of an activity.  This includes not suing for loss caused by the clear negligence of another person.  In British Columbia, claims against businesses and activity operators are barred as a result of an agreed upon release.

    Insurance companies like releases because they reduce the number of claims they have to pay because they reduce the likelihood their insured will be successfully sued.  

    Businesses like releases because they reduce the cost of their insurance.  If a business cannot get liability insurance, a well-drafted and presented waiver enables a business to avoid legal responsibility for negligence of the business and its employees.

    The idea that a person may be badly injured by the obvious negligence of another, and be without legal recourse is frightening. However, just because a person has signed a release, does not mean that the waiver will be enforceable (effective).  In order to be effective, the waiver must meet specific legal tests.  If the waiver fails to meet these requirements, a person or business may still be successfully sued.

    The legal tests waivers must meet to be effective

    Many releases are enforceable, such as the one upheld in a recent case (Loychuk v Cougar Mountain Adventures Ltd.).  However, for a waiver to be upheld, it must meet several legal tests.  In general, the waiver must meet the following three tests:

    1. Must actually apply to the facts of how the accident occurred;

    2. Must not be unconscionable; and,

    3. Must not be against public policy.

    1. A waiver must apply to the facts of the accident

    Waivers must apply to the facts of the accident. To meet this test, the court considers whether the terms of the waiver included a description of the risks that caused the person’s injury.  A release only covers risks considered at the time the waiver is signed or accepted.

    The cause of the injury that the release seeks to avoid legal responsibility for, must be clearly described in the waiver; and, be generally foreseeable by the parties. For example, if you are skiing it is likely in your mind you might ski off a poorly marked trail and injure yourself. It is foreseeable to be injured in an avalanche that could have been prevented. However, being shot by an employee carelessly handling a firearm would not be foreseeable.  You would also not imagine that poor practices in the ski lodge would result in food poisoning.  Events that are not foreseen, are not covered by a waiver.  

    Waivers must use clear language to be effective.  The courts will consider whether the participant actually understood what they signed.  A signed release is assumed to have been read and understood.  However, being told to sign a release in a hurried or casual manner; or, failing to give adequate time to read and understand the release will result in the waiver being ineffective.  This is because the service provider knew or should have known that the participant was unaware of the legal or practical effects of signing the waiver.  Service providers and businesses must take reasonable steps to advise those who are signing waivers, even though there are no special obligations to ensure people have understood what they have signed.

    2. A waiver must not be unconscionable

    Secondly, a valid waiver must not be unconscionable.  In other words, even if the release applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  A release is unconscionable when a person has abused their power to get the release signed and then relies upon the waiver. 

    That said, participants almost always have the choice between agreeing to the release and participating, or not participating at all.  Courts uphold releases even in cases where the participant travels long distances to participate in an activity, only to find that if they don’t accept the release they will be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a release as an inequality in bargaining power that makes signing the waiver unconscionable.

    3. A waiver must not be against public policy

    The third main requirement of a valid release is that the waiver must not be against public policy.  That is, the waiver cannot be contrary to the interests of the general public as a whole.  In BC, courts have rarely exercised the power to overturn a waiver because of public policy.  Releases in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities with reasonable care of the business, should be low risk.  A court might find it is against public policy to enforce a release where doing so discourages routine safety practices.

    When in doubt seek legal advice out

    Properly drafted and presented waivers can provide business owners with strong legal protection from claims.  Business owners should seek legal advice to draft the waivers they use to ensure they can be relied upon if and when needed.  

    Those injured should never assume a signed release provides a complete bar to suing for damages. Injured victims should seek out legal advice before assuming they cannot claim fair compensation. This is particularly true in cases where there has been significant injury, property damage or death.  Under those circumstances, it is not unreasonable to ask a judge to decide whether the release is enforceable.

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Don’t be Sorry for Saying Sorry – the BC Apology Act

    Don’t be Sorry for Saying Sorry – the BC Apology Act

    What is an Apology and What is the Apology Act?

    Many people know that a simple, sincere apology, can avoid a lot of legal trouble.  Whether you might have caused a car accident, said something defamatory, broken a contract, or perhaps even committed a minor criminal offence, an expression of remorse can go a long way in avoiding a dispute and solving problems.  That is why the law in BC encourages people to apologize by ensuring that if they do apologize, it cannot be used against them as proof they did something wrong.  This BC law is called the Apology Act, and is a very short piece of legislation that very few British Columbians know about.

    The Apology Act defines an apology as:

    …an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

    Legal Consequences of Making an Apology are Limited

    The Apology Act states that an apology made by, or on behalf of a person, does not constitute an express or implied admission of fault or liability by that person.  Importantly, the law provides an apology cannot be taken into account by any court in determining whether a person is at fault for an event.  An apology cannot be used as evidence in court.  For example, if you are in a car accident, and you apologize to the other driver, the other driver cannot raise this apology in court as proof you think you might be at fault for the accident.

    Some people believe that apologizing for an accident can void their insurance coverage.  Generally speaking, insurance policies require people not to prejudice the insurer’s ability to defend them, and if they do, the insurer can avoid providing coverage to that person.  The Apology Act however, provides that an apology cannot void insurance coverage.

    Many people know that if you are in an accident, you only have two years to file a claim in court to preserve your right to compensation.  This is called a limitation period.  In some circumstances, that we discuss in previous blogs, the limitation period can be extended beyond two years.  However, the Apology Act is clear that an apology does not serve to confirm the basis for bringing a claim, or postpone the running of the two-year limitation period.  This means that if someone denies they caused you harm, and then later apologizes for it, your two year limitation period runs from the time they caused you harm, not when they later apologize.

    I hope you have learned something from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  If you have a personal injury, estate dispute or marine law issue – contact us for a free consultation at 250-888-0002 or email us at info@leaguelaw.com.

  • ICBC Hit and Run Accident Claims (Video Blog)

    ICBC Hit and Run Accident Claims (Video Blog)

    ICBC Hit and Run Claims

    British Columbia insurance law makes sure that every vehicle licensed in this province carries at least basic coverage of $200,000 in third party liability insurance through ICBC.  This basic level of required ICBC coverage means that if someone else injures you with their vehicle, you at least have some certainty that you will at least have access to some insurance funds.  Even if the minimum insurance is inadequate for most serious injuries, the driver that injured you will be able to, at least a certain extent, compensate you for things such as your lost wages, medical expenses not covered by the medical services plan (MSP), and for your pain and suffering.  To access this coverage, however, you need to know who the other driver was, or at least have enough information so that the vehicle can be found and the appropriate insurance policy identified.  But what happens if the driver that hurt you fled the scene of the accident and you can’t identify either the driver or the vehicle?

    Some insurance coverage is still available even if your collision was a hit and run.  Section 24 of the Insurance (Vehicle) Act still provides basic coverage through ICBC for anyone injured by a vehicle in BC, even if the vehicle or driver can’t actually be identified.  This coverage provides up to $200,000, the same amount as the minimum provided by any BC licensed vehicle.

    This insurance is last resort, however, and isn’t available if there is other insurance coverage available elsewhere, such as if the vehicle’s owner can be found but not the driver.  There are also requirements that you be proactive in attempting to identify the other driver, which usually means making a police report and attempting to find witnesses.

    In addition to still not being able to identify the driver after taking reasonable steps, there are two other requirements to access this coverage through ICBC:

    1. That the incident leading to the injury must have occurred on a highway in British Columbia, and;
    2. That the injury came from the use or operation of a motor vehicle.

    A highway in BC has a broader meaning than the usual sense and is broadly defined as most roadways that are meant for public use.  Beyond this, it’s not necessary that you have any insurance of your own to access this coverage or for you to prove that the driver that injured you actually had any insurance.  This is because hit and run coverage is a matter of public policy intended to ensure those without a way to directly access the insurance of the person that hurt them won’t be left entirely unprotected from the actions of someone who has wronged them twice, first in the collision, and second by leaving the scene.

    If you do have your own vehicle insurance, this provincial hit and run coverage also extends to the Yukon, the Northwest Territories, and the United States, provided you can show that another vehicle hit you.

    Accessing hit and run coverage can be a technical area of insurance law with some strict time limits in reporting the collision and making a claim.  If you find yourself in a situation where you were injured by an unknown driver, you should contact an injury lawyer experienced in making ICBC hit and run claims as soon as possible to make sure that you preserve your rights.

    If you have a question about this issue topic or another legal issues, please feel free to contact us for a free legal consultation.  We may be reached at our offices at 250-888-0002, or via email at info@leaguelaw.com.

  • Video Blog: Speeding Cyclists and BC Law

    Video Blog: Speeding Cyclists and BC Law

    School Zones, Speeding Cyclists and BC Law

    Last week, a local cyclist was ticketed for speeding in a school zone.  The event attracted considerable news attention and a lot of discussion on social media – with many wondering if speeding cyclists are subject to the Motor Vehicle Act.  In this week’s blog, we will discuss how BC’s Motor Vehicle Act applies to bicycles and why this might be.  Viewers should be warned that some of the images in the above vlog may be disturbing to some viewers.

    Despite being call the “Motor” Vehicle Act, section 183 of the BC’s Motor Vehicle Act states:

    In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.

    In other words, all of the rights and duties provided to cars, apply to bicycles as well.  This applies to speed limits, the manner in which bicycles and vehicles enter and leave roadways, and how they negotiate intersections and interact with each other.  In my view, this is a good thing. There is a significant power indifference between motor vehicles and bicycles, and similarly, between bicycles and pedestrians.  Speeding cyclists are a road safety hazard.

    It may seem obvious that, because of the simple physics of mass times velocity, a vehicle can cause more damage to a cyclist, than a cyclist to a pedestrian, but that comparison bears little comfort for a pedestrian who suffered a brain injury when they are knocked to the ground by a careless cyclist.  In other words, an object traveling at speed does not need to weigh even a fraction of what a vehicle weighs in order to cause significant injury.  Section 183 provides for pedestrians the same increase in safety from being injured by cyclists, as it provides cyclists from being injured by motorists.

    Lack of Liability Insurance Carried by Cyclists Put Victims at Peril

    What many people overlook in this debate is that while every person, including a cyclist or pedestrian, injured by a motor vehicle in BC will have some form of insurance coverage to help pay for medical expenses and wage loss while they are injured, the same is sadly not true of pedestrians injured by speeding cyclists.  In other words, ICBC and private automobile insurers will not pay for the medical expenses or wage loss of a pedestrian injured by a cyclist.  It is only if the cyclist has liability insurance through their home or renters insurance that they will have some source of money to help pay for the injured person’s expenses.  If that insurance is not available, the cyclist will be personally responsible to pay for the injured person’s expenses. Often, this can mean personal bankruptcy for the cyclist, as many injuries result in hundreds of thousands of dollars in damages.  Both the injured pedestrian and the cyclist are the ultimate losers in that scenario.

    Imagine for a moment a cyclist speeding though a school zone, colliding with a small child who is crossing the road, leaving the child with a brain injury.  The cyclist would likely have no insurance and the child would be left with minimal resources to pay for medical care and income loss through their life.  In short, there is good reason the safety precautions set out in the Motor Vehicle Act apply to bicycles as well as motor vehicles.

    Inability to Gauge Speed is No Excuse

    In closing, I reviewed one blog in the last few days that questioned whether a cyclist should be ticketed for speeding when bicycles do not have a speedometers and therefore cannot gauge their speed.  This raises an interesting issue that we will cover in more detail in a future blog, but for the time being, it will suffice to say that cyclists should always err on the side of caution if they are unable to reasonably judge their speed.

    If you have a question about this issue topic or another legal issues, please feel free to contact us for a free legal consultation.  We may be reached at our offices at 250-888-0002, or via email at info@leaguelaw.com.

  • Are Waivers (for Accidents) Enforceable in BC? (Video Blog)

    Are Waivers (for Accidents) Enforceable in BC? (Video Blog)

    This week, I am going to talk about the enforceability of waivers, which are incredibly common and powerful clauses in contracts we all come across almost every day.  From getting on a chairlift or a ferris-wheel, to renting a car, a bicycle or piece of garden equipment, or even leaving a jacket at a coat check, waivers are everywhere.  Giving up, or waiving, the right to claim for the consequences of someone else’s carelessness is something we all frequently do.

    Waivers are Agreements not to Sue

    A waiver is a promise not to sue for any injury, death or property damage arising out of the activity, including loss caused by the clear negligence of another person.  British Columbia is the most waiver-friendly province in Canada, and Canada likely the most favourable country in the world for enforcing waivers.

    Insurance companies like waivers because they reduce the number of claims they have to pay out because waivers reduce the likelihood their insured will be successfully sued.  Businesses like waivers because they reduce the cost of their insurance and when a business cannot get liability insurance, a well-drafted and presented waiver offers the opportunity to avoid legal responsibility for the negligence of the business and its employees.

    For many people, the idea that they might be badly injured by the obvious negligence of an another person and have no legal recourse to pay for wage loss or medical expenses, can be frightening. And it should be.

    Waivers are Enforceable When They Meet Legal Tests

    While many waivers are enforceable, they must meet several legal tests.  In order for a waiver to be effective in removing someone’s right to sue for another’s negligence, the waiver must meet the following three part test:

    •  First, the waiver must actually apply to the facts of how the accident occurred;
    • Second, the waiver must not be what’s called unconscionable; and
    • Third, the waiver must not be against public policy.

    Waivers Must Apply to the Facts of the Accident

    So, regarding the first part of the test, does the waiver apply to the facts, this means the court must consider whether the terms of the waiver include a description of the risks that caused the person’s injury.  This means a waiver can only cover potential risks which were in the mind of the person at the time they signed the release.  For example, if you are skiing, it is likely in your mind you might ski off a poorly marked trail and injure yourself, or be injured in an avalanche which could have been prevented.

    You would not, however, contemplate being shot by an employee who was carelessly handling a firearm, or being food poisoned by poor practices in the ski lodge.  In other words, the cause of the injury that the waivers seek to avoid legal responsibility for, must be reasonably described in the waiver and be generally foreseeable by the parties.  Clear language is required if a business operator wishes to release themselves from liability for the negligence of their employees or agents.  The courts must also consider whether the participant actually understood what they signed.

    Generally, by signing a waiver, it is presumed that the participant has read and understood it.  The activity operator is under no special obligation to ensure that participants understand what they have signed.  However, where the operator knew or should have known that a participant was unaware of the legal or practical effects of signing the waiver, they have to take reasonable steps to advise the participant.

    This can arise where the participant was told to sign the waiver in a hurried or casual manner and not given adequate time to read and understand the waiver.

    Waivers Must not be Unconscionable

    The second main requirement of a valid waiver is that it must not be unconscionable.  In other words, even if the waiver applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  To prove that a waiver is unconscionable, the person who signed the waiver and the person relying on the waiver must have been in significantly unequal bargaining positions.  The business operator must also have abused this power to get the participant to agree to an unfair waiver.

    That said, participants almost always have the choice between agreeing to the waiver and participating, or not participating at all.  Courts have upheld waivers even in cases where the participant has traveled long distances to participate in an activity, only to find that if they didn’t accept the waiver they would be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a waiver as an inequality in bargaining power that makes signing the waiver unconscionable.

    Waivers Must not be Against Public Policy

    The third main requirement of a valid waiver is that the waiver must not be against public policy – that is, the waiver is contrary to the interests of the general public as a whole.  The power to overturn a waiver because of public policy is rarely exercised by the courts in BC.  Waivers in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities, however, with reasonable care of the business, should be low risk, and a court might find it is against public policy to enforce a waiver where to do so would discourage routine safety practices.

    When in Doubt, Seek Legal Advice Out

    A properly drafted and presented waiver can provide business owners with strong legal protection from claims.  However, it should never be assumed that a liability waiver will provide complete protection from law suits.  In cases where there has been significant injury or property damage, or death, a judge should be asked to decide whether the waiver is enforceable.

    We hope you have learned something from this week’s blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Liability for Unsafe Premises – BC’s Occupiers Liability Act (Video Blog)

    Liability for Unsafe Premises – BC’s Occupiers Liability Act (Video Blog)

    Unsafe Premises, an Overview of Occupiers Liability Law in British Columbia

    In British Columbia, the law provides that a person who is in physical possession or control over premises has duty of care to see that another person, and that person’s property, is reasonably safe in using the premises (basically, a law against unsafe premises).  This area of law is referred to as “occupiers liability law” because under BC legislation, a person who is in physical possession or control property is called an “occupier”.

    This law often comes into play when someone suffers a fall in a grocery store or a restaurant, slips in an icy parking lot, trips on an uneven sidewalk, or falls down uneven stairs.  Notice, however, that I also said the law applies to people’s property as well.  That is, a person’s property, such as a vehicle, must also be reasonably safe in using another’s premises.

    While we do not like to think of domestic pets or farm animals, such as dogs or horses as “property”, as they can often be part of the family, the law considers them to be property and also provides that these creatures should also be reasonably safe in using another’s premises.  However, the majority of cases in this area of law relate to injuries to people.

    The Law Does not Require Perfection but Merely Reasonable Actions to Ensure Safety

    Some people believe that if they injure themselves when they are on another person’s property, through no fault of their own, that the owner of the property is automatically responsible for having unsafe premises.  This is incorrect.  The law only requires a person to take reasonable steps to see that another person or their property is reasonably safe in using the premises.  In other words, the law does not require perfection in ensuring premises are absolutely safe.  The most common example of injuries on premises are slip and falls on residential or commercial property due to slippery substances such as water, ice, or food.  In these cases, the law requires the person controlling the premises to exercise a reasonable standard of inspection and maintenance for hazards.  This does not mean that the occupier will be liable for any accident, only an accident where reasonable inspection and maintenance could have avoided the accident – where negligence on the part of the property owner has resulted in unsafe premises.

    For example, the courts have found that grocery stores in British Columbia should do regular inspections of their floors about every 30 minutes to two hours depending on the type of store, the area of the store, and how busy it is.  As long as the store has a system to ensure this inspection is occurring, and can show that it actually occurred, the store may not be held liable for an injury even if somebody innocently slips on something such as grapes in the produce aisle.

    As an example, imagine that you walked into a grocery store and ten minutes before you come along another customer spilled grapes on the floor without noticing.  This could totally happen, right?  Then you slip on the grapes before the store employees had a chance to notice them and remove the hazard.  You fall hard onto the concrete floor, perhaps breaking a bone.  It is possible the store would not be liable for your injuries, provided they could show the system they had in place was reasonable and it was being followed, even though the grapes were on the floor for several minutes before you stepped on them.

    Again, the law does not require perfection, or for the occupier to be responsible for any serious injury; rather, it only requires they exercise care that is reasonable in all of the circumstances.

    Failure to Have and to Follow Systems of Inspection & Maintenance will Result in Liability for Unsafe Premises

    That said, I continue to be surprised how large and sophisticated companies, such as large grocery store chains, either fail to have effective systems of inspection and maintenance in place to safeguard the safety of their customer, or simply don’t follow the system they do put in place.

    I hope you have learned something from this week’s blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Waiving Goodbye to Rights in Marine Accidents – Effective Liability Waivers

    Waiving Goodbye to Rights in Marine Accidents – Effective Liability Waivers

    When is a Liability Waiver Effective?

    Giving up, or waiving, the right to claim for the consequences of someone else’s carelessness is something we all frequently do.  A surprising number of activities we regularly engage in involve a written, but often unseen, contract which contains a “waiver” clause, being a promise not to sue for any injury, death or property damage arising out of the activity, including loss caused by the clear negligence of another person.

    Born and legally tested in the heli-ski and white-water rafting industries decades ago, waivers have grown exponentially in popularity and can now be found in the fine print of almost any activity we undertake, regardless of how risky they are.  From hiring a tug, to stepping aboard a whale watching vessel, to getting on a chairlift, to renting a piece of garden equipment or even leaving a jacket at a coat check, waivers are everywhere.  Indeed, British Columbia is the most waiver-friendly province in Canada, and Canada likely the most favourable country in the world for enforcing liability waivers.

    Insurance companies like waivers because they reduce the number of claims they have to pay out.  Businesses like waivers because they encourage more accessible and affordable insurance, and where business liability insurance is not available for the business, a well-drafted and presented waiver offers the opportunity to avoid legal responsibility for the negligence of the business and its employees.  Some people argue that while waivers deprive people of their otherwise just right to sue for harm caused by a careless person, waivers do allow businesses to operate and thrive (thus provide needed services) where they might otherwise not be able to because of the threat of successful law suits.  The fairness of the bargain, of course, depends on which end of the stick you are on at the time.

    A good example of the use of a liability waiver in the marine context was touched on in our blog where we addressed the sinking of the Leviathan II, and whether whale watching vessels undertake an “adventure tourism” activity or not.  This is an important issue because, although international convention prohibits the use of waivers in vessel passenger agreements, Canadian marine law provides an exemption to this by allowing the vessel owner and operator to rely on a waiver if the vessel is undertaking an “adventure tourism” activity.  The balance of that article addressed the current ambiguity of when a marine activity is an “adventure tourism” activity or not – a surprisingly vague and uncharted area of law.  That said, even if such an activity were adventure tourism, and a waiver was placed in the passenger agreement, the owner and operator of such a vessel could only rely on the waiver if the remaining legal requirements of an enforceable waiver are met.  In other words, having a waiver written in the passenger agreement does not mean it is automatically enforceable.  The following legal test needs to be met for the waiver to be enforceable:

    1. the waiver must actually apply to the facts of how the accident occurred;
    2. the waiver must not be unconscionable; and,
    3. the waiver must not be against public policy.

    Does the liability waiver apply to the facts?

    To answer this, courts have generally split the question in two.  First, the terms of the waiver must include the general circumstances that caused the participant’s injury.  Second, a waiver can only cover matters which were in the mind of the participant at the time the release was signed.

    In answering the first question, the waiver’s language is considered.  The negligence of a person is not a risk people would naturally assume is part of an adventure activity, however risky the activity itself is.  Clear language is required if a tour operator wishes to release themselves from liability for the negligence of their employees or agents.  Ambiguity in the contract is generally interpreted in favour of the injured participant.  In a recent decision, the BC Supreme Court did not uphold a signed waiver.  This case involved a physiotherapist being injured at a training course, but it is relevant to marine activity operators.  The waiver mentioned that there were risks involved in the course’s “techniques and procedures”, but in declining to give effect to the waiver, the court found it did not identify or provide examples of those risks, it did not specify the nature and severity of the risks, and it was ambiguous whether the waiver extended to acts and conduct of other parties beyond the participant’s control.

    Regarding the second part of the question (does the wording of the waiver apply to the facts), courts must consider whether the participant actually understood what they signed.  Generally, by signing a waiver, it is presumed that the participant has read and understood it.  The activity operator is under no special obligation to ensure that participants understand what they have signed.  However, where the operator knew or should have known that a participant was unaware of the legal or practical effects of signing the waiver, they have to take reasonable steps to advise the participant.  This can arise where the participant was told to sign the waiver in a hurried or casual manner and not given adequate time to read and understand the waiver.

    Is the waiver unconscionable?  

    Even if the waiver applies to the facts of an accident, the court may find the waiver unconscionable (essentially unfair).  To prove that a waiver is unconscionable, the participant and the activity operator must have been in significantly unequal bargaining positions.  The operator must also have abused this power to get the participant to agree to an unfair waiver.  That said, in the context of adventure activities, courts have almost always held that it is not unconscionable to require a participant to sign a waiver that prohibits suing for negligence and injury.  Participants almost always have the choice between signing the waiver and participating, or not participating at all.  Even in cases where the participant has traveled large distances to participate in an activity, only to find that if they didn’t accept the waiver they would be turned away, has the court upheld a waiver.  It would be rare to successfully challenge a waiver on the grounds of conscionability.

    Is the waiver against public policy?

    The final test that a waiver must also pass to be enforceable is to confirm the waiver is not against public policy.  The power to overturn a waiver because of public policy is rarely exercised by the courts (at least in B.C.).  When it is exercised, it is done to maintain the certainty and stability of the use of waivers generally in industry.  Waivers in adventure tourism activities generally do not give rise to public policy concerns because, by definition, these activities have inherent risk (note: this is not to say, for example, the Leviathan II was engaged in adventure tourism when it capsized).  Many marine activities, however, with reasonable care of the business, should be low risk, and a court might find it is against public policy to enforce a waiver where to do so would discourage marine safety.  Examples of when a waiver is more likely not to be enforced on public policy grounds include where an activity operator knowingly or recklessly provides a substandard product or service, or where criminal conduct (including criminal negligence) is involved.

    Properly drafted and presented waivers will provide marine owners and operators in B.C. with strong legal protection from claims, and reduce disincentives for providing innovative and necessary marine services.  However, despite recent advances in marine safety, tragic and costly accidents will continue to occur, and it should never be assumed that a liability waiver will provide complete protection for vessel owners or operators.  In cases where there has been significant injury or property damage, or death, a judge will often be asked to decide whether the waiver is enforceable.

    Darren Williams is marine lawyer specializing in accidents and is a partner with League and Williams Law Corp, in Victoria B.C. Canada and can be reached for comment at, or 250-888-0002.  His emergency phone is 250-589-2174.  Matthew Melnyk is a marine lawyer and co-author.

  • Zombie Ships – the Perils of Failing to Neutralize Your Vessel Ownership

    Zombie Ships – the Perils of Failing to Neutralize Your Vessel Ownership

    Captain Black decided to sell his tug and barge to a fellow from up the coast who wanted to start a dock building business.  His wife and warmer weather begged for Black’s attention.  Black signed the bills of sale and pushed them across the sticky galley table.  Hiding his delight, Black pulled the bank draft from the buyer’s oily fingers, shook hands briefly and smiled when the buyer said “I will take care of the rest”.  He stepped out of the galley door into the driving rain thinking he had put his old tug and barge behind him for the very last time.

    Many transactions involving the Canadian Register of Vessels (the “Ship Registry”), the small (commercial) vessel register and the vessel licensing system can be, and are, completed without legal help.  The sale and transfer of both pleasure and commercial registered and licensed vessels is common.  The forms and procedures required by Transport Canada are relatively straightforward and in most cases, with attention to detail, the process can go smoothly even for those unfamiliar with registration and licensing procedures.

    That said, it is not uncommon for the registration and licensing of vessels, particularly the transfer of recorded ownership, not to be completed successfully.  There are a variety of reasons for this (and even more potentially negative outcomes) that mariners are wise to be aware of, particularly if they chose to buy or sell a vessel without a lawyer’s oversight.

    Captain Black stirred his margarita slowly and ignored his wife grumbling about “some retirement” as he reached into her beach bag to silence his cell phone.  He had dismissed the first four calls that hour but clearly someone with no respect for Black’s new priorities was trying to reach him.  “Race Rocks ecological reserve”, “holed and hard aground”, “ crane and tanks of diesel aboard”, “registered owner”, “what is your plan”, was all Captain Black’s wife heard as she lowered her sunglasses and watched her husband’s face go from golden brown to pale yellow.  According to the coast guard back in Canada, Black still owned the tug and barge he had sold six months earlier, or at least what was left of them.

    What is a Zombie Ship?

    The concept of a zombie ship, but perhaps not the expression, is common.  A zombie ship is my term for a vessel whose ownership has been terminated but continues to be active without the control of the apparent (registered or licensed) owner.  In other words, zombie ships are vessels (both pleasure and commercial) that are possessed by a new beneficial owner that continue to wander the seas with the appearance of belonging to their previous owners, in many cases causing havoc.  Zombie ships are not a joke and in fact are a common problem.

    How and Why are Zombie Ships Created?

    Zombie ships are typically created when the purchaser of a vessel fails to successfully complete the paperwork necessary to transfer the vessel’s registration or licensing.  In most cases, the vendor is pleased to have disposed of the vessel in return for the purchase monies and does not consider the downstream consequences of the vessel remaining in their name.  There is often an assumption on the part of the vendor that the purchaser of the vessel will be eager to record themselves as the new owner of the vessel and therefore the vendor is safe to assume it will be done.  In many cases, this is a poor assumption and the vendor’s name is never removed from government records, even though their insurance on the vessel was long ago cancelled.

    There are several reasons the transfer of ownership paperwork may not be completed properly.  First, some purchasers are aware that both the Canada Revenue Agency and the B.C. Minister of Finance monitor vessel purchases that are recorded with Transport Canada as a means of tracking what tax is payable on the transfer.  Some purchasers believe they can avoid transfer tax by not recording the transfer and simply leaving the vessel in the vendor’s name.  Second, the registration documents may be rejected by Transport Canada due to errors, and the purchaser fails to follow up and correct the problem so the transfer is never finalized.  The vendor of the vessel does not normally receive notice from Transport Canada that their status as owner has changed, even if the paperwork is successfully completed, so the vendor has no idea whether the paperwork is properly completed unless they check the register.  Third, the purchaser simply may not appreciate they have to do anything to complete the record of their ownership beyond a handshake and the exchange of cash and keys on the dock.  Lastly, nefarious buyers intentionally choose not to change the recorded ownership so their illegal activities with the vessel appear to be carried out in the name of someone else.

    Why are Zombie Ships Dangerous?

    The resulting problem for the vendor is that while they are no longer in control of the vessel, they are exposed to many different liabilities because they remain the recorded owner of the zombie ship.  There are dozens of different offences and penalties under federal legislation that apply to the “owner” of the vessel regardless of whether that person remains the beneficial owner and in possession and control of the vessel.  For example, under section 177 the Canada Shipping Act 2001, an owner is “liable for all expenses incurred in respect of” a vessel detained for a suspected oil pollution offence.  Another example of legal exposure comes from the Fisheries Act, which provides penalties for the negative impacts any vessel (not just a fishing vessel) might have on fish or fish habitat.  Section 80 provides:  “every … owner, … or person actually in charge, either as occupant or servant, shall be deemed to be jointly and severally liable for any penalties or moneys recovered under any provision of this Act or the regulations”.

    Dealing with Zombie Ships

    The best way to deal with a zombie ship is to prevent it from becoming one in the first place.  If you are not working with a marine lawyer, you might do this by taking responsibility for filing the appropriate transfer documentation with Transport Canada; have the purchaser complete their portion of the documentation and provide it to you with the registration fees so that you can register the transfer yourself.  Alternatively, you can closely monitor the purchaser’s steps to record the transfer and confirm with the register the transfer has occurred.   Do not, however, simply assume the purchaser will successfully register the transfer without following up to ensure it has occurred, that is how zombies are allowed to come to life.

    In closing, if you have sold a vessel in recent years you should check the Ship Registry, the small (commercial) vessel register or with the vessel licensing database to ensure the buyer completed the transfer of recorded ownership successfully.  If you have not done this, there may well be a vessel that looks like it belongs to you leaving a wake of destruction along the coast.  If you do find you are the recorded owner of a vessel that no longer belongs to you, immediately contact the buyer to complete the required paperwork.  If you cannot reach the buyer or they are not cooperative, seek the assistance of a lawyer qualified to neutralize the zombie ship, ideally a marine lawyer.

    Darren Williams is a partner at League and Williams Law Corporation in Victoria B.C. and can be reached for question or comment locally 250-888-0002, by emergency cell phone at 250-589-2174 or at dw@MarineLaw.ca.