NEGLIGENCE LAWSUIT NOT BARRED BY WAIVER: MOUNTAIN GUIDE'S WAIVER PROTECTION UNZIPS IN GLACIER NATIONAL PARK

REVELSTOKE, BC, May 16, 2023 /PRNewswire/ - On May 2, 2023, Madame Justice Hughes of the B.C. Supreme Court decided a case arising out of injuries suffered by the plaintiff, Ian Manson, from a mountaineering incident ("Incident"), which occurred on the face of Mt. Rogers in Glacier National Park, B.C., on July 15, 2021 ("Mt. Rogers Expedition"). See 2023 BCSC 723 (CanLII) | Manson v Mitchell | CanLII. 

Manson claims against his mountaineering guide, Jeffrey Mitchell, and his company, Revelstoke Alpine School Inc. ("Revelstoke Alpine"), for negligence and breach of contract. He also claims against the Association of Canadian Mountain Guides ("ACMG"), a society that provides, among other things, accreditation and training for mountain guides. Manson is alleged to have suffered physical and psychological injuries and resulting economic loss as a result of the Incident.

More specifically, Manson alleges that while Mitchell was belaying Manson and when Mitchell was directly above Manson on the mountain, Mitchell tested the stability of a rock, thereby causing the rock to dislodge and fall towards Manson. Manson says that he moved to avoid the rock and then Mitchell either lost control of, or let go of, the rope, which in turn caused Manson to lose his balance and fall backwards.

Manson fell approximately seven meters before reaching the full length of the working rope, then arrested his fall on a ledge. As a result of the tightening of Manson's rope, Mitchell was dislodged from his stance. Both men were injured and evacuated by helicopter.

The defendants sought, by way of summary trial, a declaration that a waiver signed by Manson on June 17, 2021 ("Waiver") applies to the mountaineering trip on which the Incident occurred, and therefore served as a full answer and defence to Manson's claim.

The details of the Incident and a determination on liability were not before the Court, and so the Court did not make any findings in that regard.

The Court decided that the Waiver does not apply to the Mt. Rogers Expedition and accordingly is not a defence to Manson's negligence claim against the defendants.

Manson argued that the Waiver does not bar his claim because it is expressly date-specific, and therefore only applies to the June 18th Begbie Climb.

The defendants argued that the Waiver applies to all rock climbing and mountaineering trips where Mitchell guided Manson in the summer of 2021, including the Mt. Rogers Expedition. They also argued that if the Waiver did not apply to the Mt. Rogers Expedition as drafted, then the defendants say it ought to be rectified to replace "June 18, 2021" with "Summer of 2021".

The Court disagreed with the defendants stating that, as a starting point, what Manson and Mitchell indicated to the outside world is to be determined within the four corners of the Waiver and on its face, the Waiver expressly applies to the Begbie Climb on June 18, 2021.

The Court stated that interpreting the Waiver in light of the surrounding circumstances does not yield a different result. Rather, the surrounding circumstances support a finding that Mitchell and Manson's mutual intent, objectively determined, was that the Waiver applied to the June 18th Begbie Climb.

The Court stated that, at base, the defendants' proposed interpretation of the Waiver invites the Court to do exactly that which is not permitted by the law, allow the surrounding circumstances as they were subjectively understood by Mitchell to overwhelm the words of the Waiver by adding to, varying or contradicting a written contract. And, that accepting the defendants' position would allow Mitchell's subjective intention to effectively create a new agreement on terms that were never discussed by Mitchell and Manson.

The Court stated that limiting the applicability of the Waiver to the June 18th Begbie Climb is also consistent with the requirement that as a matter of law, a waiver requires an unequivocal and conscious intention to abandon rights, and, because the Mt. Rogers Expedition had not even been raised by Mitchell as of June 17, 2021, it was not within Manson's contemplation at the time he signed the Wavier. The Mt. Rogers Expedition was also an entirely different trip in nature, activity level, duration, and risk profile than the June 18th Begbie Climb. Considered within this factual context, the defendants' assertion that the Waiver applies to the Mt. Rogers Expedition runs afoul of the well-settled principle that a release "will not be construed as applying to facts of which the party making the release had no knowledge at the time of its execution".

As to the defendants' rectification argument, the Court stated that the defendants have not established by clear and cogent evidence that Manson and Mitchell entered into a definite and ascertainable agreement at the June 15th Meeting that Mitchell would guide Manson for the summer of 2021 and so the Court was not prepared to rectify the Waiver.

In conclusion, the Court held that the Waiver signed by Manson for the June 18^th Begbie Climb does not apply to the later July 14–15, 2021, Mt. Rogers Expedition during which the Incident occurred. In the result, the Waiver provides no defence to the negligence action brought by Manson against the defendants.

Manson's negligence trial against Mitchell, his company and the Association of Canadian Mountain Guides is set for six weeks commencing October 2, 2023. The outcome of the trial may have important consequences for the adventure tourism industry. See Ian Mulgrew: Liability chasm hazard in back country | Vancouver Sun

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SOURCE Massey's Avalanche