Compensation And Liability Issues For Toronto Ski Injuries

During this winter season, as Toronto residents head out to take advantage of the snowy slopes around Ontario, it is worth considering certain liability issues that may arise from ski-related injuries.



When injured out on the ski slopes, the first question to be asked is, "Who is at fault?" Did the ski resort in question adhere to a professionally accepted standard of care in maintaining the integrity and safety of its slopes and ski trails? How experienced and sophisticated was the injured skier at the time of the accident? Was the skier in some way negligent in failing to follow the posted safety rules? Were there clearly posted signs warning skiers of potential hazards? Was the skier sufficiently made aware of an exclusion of liability or waiver provided by the resort, and if so, what were its terms? The answers to the above questions would generally determine the question of liability pertaining to the ski injury, as well as the quantum of compensation, if any, arising out of a finding of liability.



The Ontario Superior Court of Justice decision of Cejvan v. Blue Mountain Resorts Ltd. provides an instructive guideline as to how courts in Ontario approach issues of liability and compensation in a ski-related personal injury. The court first looked to the standard of care to be expected from the defendant ski resort, noting:



Provincial legislation mandates that an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable. An occupier is to see that persons entering onto the premises are reasonably safe while on the premises.



Having noted that the defendant ski resort had drawn up its own comprehensive safety code and manual, the court then considered whether the defendant’s employees had reasonably administered its safety protocols. In this case, the court concluded that the ski resort had breached its own standard of care, but that wasn’t the end of its analysis, as the court had to consider whether the resort’s posted exclusion of liability would operate to prevent the plaintiff from being compensated for his ski injury.



With regard to this issue, courts look to whether waivers of liability - whether appended to ski lift tickets, admission stubs, or posted on signs throughout the resort - are clear, legible, and presented in such a way that the plaintiff would not be able to reasonably assert that he was not aware of the exclusion of liability for potential injuries. In other words, did the plaintiff willingly assume the risk of injury when he engaged in his skiing activities at the resort?



With respect to this question, the Court noted:



The plaintiff acknowledges that there is an assumption of risk when a patron purchases a ticket to ski or board at the defendant Resort. A finding that [the plaintiff] assumed the risk, however, is dependent on his consent to engage in the activity with full knowledge of the inherent risks. The patron assumes the risk on the assumption that the ski resort has fulfilled its duty of care. The increased risk in this case was not what [the plaintiff] expected to contractually assume.



Yet still, the Court saw the terms of the resort’s waiver as excluding any and all liability on the part of the defendant, as the wording covered "negligence on the part of [the defendant] and its employees." Yet even in this case, there is no hard and fast rule as to whether a waiver can be a complete defence in all circumstances, particularly when gross negligence is involved, and a plaintiff - who is deemed to have not contributed to their ski injury through negligence on their own part - could not have reasonably anticipated the risk being assumed.



Recognizing the possibility that it might be wrong on the question of liability, the court then went on to apportion liability between the parties for the purposes of arriving at a figure of damages. With regard to this question, the court looked at the extent to which the plaintiff’s reckless conduct while skiing offset the negligent conduct of the defendant.



In determining the overall damages - subject to apportionment between the parties - the court examined the scope of the plaintiff’s particular injury. In this case, as in all matters of personal injury litigation, the location and duration of the injury is relevant in determining the figure for general damages.



So, be aware that when you engage in potentially hazardous recreational activities during this winter season, you often assume the risk for your injuries, and that your right to compensation, if any, will often depend on the extent to which you assumed that risk and avoided contributing to your own injury.