Online waivers enforceable for recreational activities in BC

In April 2024, the BC Court of Appeal confirmed that waivers and releases from liability entered into online can be legally enforceable. However, the provider of the recreational activity in Mitchell v Manson¹ failed to ensure its waiver applied to the activity on the date the injuries occurred.

The incident

On July 15, 2021, Ian Manson was injured while climbing Mount Rogers. His guide was Jeffrey Mitchell, a professional mountain guide operating under his company named Revelstoke Alpine School Inc.

During the climb, Mr. Mitchell, who led the climb directly above Mr. Manson, caused a rock to dislodge and fall towards Mr. Manson. Though he dodged the falling debris, Mr. Manson lost his balance and fell backwards. He then fell seven meters down the rope and stopped his fall on a ledge, suffering injuries. Mr. Mitchell was also injured, as Mr. Manson’s fall tightened the rope and caused him to lose his stance.

The waiver

On June 17, 2021, Mr. Manson inquired about booking a guided climb through the Revelstoke Alpine School Inc. webpage and exchanged emails with Mr. Mitchell about his objectives. Once a date was agreed upon with Mr. Mitchell, Mr. Manson was directed to complete an online “release of liability” waiver on the business’s webpage.

The waiver contained fields for Mr. Manson to fill out information such as his name, telephone number, medical information, and emergency contact information.

The waiver also contained a “Trip Date” field that, when selected, opened a drop-down calendar. The calendar only allowed Mr. Manson to select one specific date, as opposed to multiple dates or a date range.

At that point, Mr. Manson had only confirmed one guided mountaineering expedition with Mr. Mitchell for the next day. Understandably, Mr. Manson selected “June 18, 2021” as the date. He then signed the online waiver by initialing the letter “M” in two spots, one of which was above the words “Participant’s Signature.”

Mr. Manson completed the June 18 expedition without incident. On the same day, he paid $450 for the expedition by e-transfer to Mr. Mitchell’s company’s email address. 

On June 21, 2021, Mr. Manson arranged with Mr. Mitchell a three-day climbing expedition starting June 25. Following the successful completion of that expedition, Mr. Manson booked another three-day climb for July. 

Key issues

Mr. Manson sued Mr. Mitchell in the BC Supreme Court for physical and psychological injuries as a result of the fall on July 15.

An issue at the Supreme Court, and the key issue before the Court of Appeal, was whether the online waiver was broad enough to waive Mr. Manson’s claims, and release Mr. Mitchell and his company from liability, beyond the June 18 date selected by Mr. Manson when he completed the online waiver.

Mr. Mitchell appealed the Supreme Court decision which he lost, arguing the waiver applied to release him and his company from liability on all the expeditions he went on with Mr. Manson that summer. He said it was implicit and mutually understood that the waiver was to apply to all climbing activities that summer and not just the one on June 18. 

Mr. Mitchell also said the waiver was discussed between them during the expedition from June 25-27. However, Mr. Manson denied such a conversation took place and asserted the waiver could not apply other than to the June 18 expedition.

The Court of Appeal’s decision

The Court of Appeal upheld the trial decision and declined to find that the release applied beyond June 18, 2021 – the date selected in the online waiver.

Importantly, the court determined the waiver and its terms would have been enforceable if it had agreed that it applied to the July 15 expedition.

The court also noted Mr. Mitchell’s company was described as “Revelstoke Alpine School” in the waiver, instead of its full, proper corporate name – “Revelstoke Alpine School Inc.” However, the court did not decide whether this misnomer was material, as the waiver did not apply in any event.

Key takeaways

The Court of Appeal’s decision in this case confirms that online waivers, such as the one signed by Mr. Manson, can be legally enforceable in BC – even if they are accepted through a webpage.

The Court of Appeal concurred with Mr. Manson’s concession that had the fall occurred on June 18, the online waiver would have barred any claims by him against Mr. Mitchell, stating, “Notably, this is not a case about whether the Waiver, by its terms, would protect the appellants from a claim in negligence, breach of contract or breach of statutory duty arising from an activity coming within its scope. It clearly would…” 

This is useful confirmation from the Court of Appeal that waivers from liability communicated through a business’s webpage can be binding on activity participants. 

While the drafting error in the name of the company in this case did not affect its outcome, the Court of Appeal’s comments serve as an important reminder for business owners when seeking to rely upon waivers to properly and fully identify all of the entities they seek protection for, in addition to making sure the specific activity and its date(s) are adequately identified. 

As well, one should also never overlook the importance that a waiver of liability be accepted by the customer before the customer pays for the activity. It is also a general rule that “negligence” itself must be specifically named and liability for it excluded.