Victim of Formality

Schuster v. Blackcomb Skiing Enterprises Ltd. Partnership, [1994] B.C.J. No. 2602, [1995] 3 W.W.R. 443, 100 B.C.L.R. (2d) 298 (BCSC)

¶ 1 HALL J.: This is a case that arises out of a skiing accident that occurred on December 23, 1992 at Blackcomb Mountain. The defendant now applies under to the provisions of Rule 18A for an order that the action against it be dismissed on the basis that the plaintiff is not able to successfully maintain this suit because of a waiver document that she signed a short time prior to taking part in a ski programme called Ski Esprit at Blackcomb Mountain.

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¶ 11 After the advent of the railway, we find that most of the cases after the middle of the 19th century typically deal with railroad passengers. An example is Van Toll v. Southeastern Railway Company (1862), 31 L.J.C.P. (N.S.) 241, wherein the defendant was successful in upholding a waiver clause. In that case, the plaintiff traveller had deposited a bag containing apparel and jewelry in a cloakroom at the railroad office and had received a ticket. In addition to the writing on the ticket there was also a prominent sign situate in the cloakroom where she had checked the items. So because the plaintiff had adequate notice, she was bound by the waiver. Not along after came the case of Harris v. Great Western Railway Companyk (1876), 1 Q.B.D. 515. There, the railway passenger who had deposited luggage with a clerk at the defendant’s cloakroom and received a ticket with limiting conditions was also held to be bound by the notice limiting liability.

¶ 12 In the next year was decided the case of Parker v. Southeastern Railway Company (1877), 2 C.P.D. 416, a case that is often quoted and that is usually considered to be a leading case in this area. That case settled the law in that it provided that a defendant who sought to rely on a waiver or exemption clause was obliged to do what was reasonably necessary to give to a customer adequate notice of conditions limiting liability if a defendant was to successfully to rely on such as a defence to an action for loss of goods entrusted to it. Again, this case resulted from the deposit of goods in a cloakroom at a railway station. From the proliferation of cases involving the Southeastern Railway Company in that era, one is constrained to think that they either ran a rather insecure cloakroom system or else thieves were uncommonly active at the time.

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