A release will not be enforced if it is against public policy.

On April 30, 2014, the BC Court of Appeal ruled in Niedermeyer v. Charlton [2014] B.C.J. No. 763, that a release signed by a plaintiff participating in a zip line activity did not defeat her claim for injuries sustained in a motor vehicle collision on the defendant zip line operator’s bus travelling from the zipline area. The release was contrary to public policy, which did not allow an owner/operator of a motor vehicle to contract out of liability for damages for injuries sustained in a motor vehicle accident..

The plaintiff appealed the decision of the lower court, which at summary trial held that the plaintiff’s claim was defeated by the release. She sought damages for injuries suffered in a motor vehicle accident. The accident occurred while the plaintiff was on a bus operated by the defendant zip line tour company, travelling from the zip line area. Prior to getting on the bus, the plaintiff signed a release of liability against the defendant in which she waived claims arising from “travel to and from the tour areas” and “backcountry travel”.

On appeal, the plaintiff made a number of arguments. First, she said that the release did not cover injuries resulting from motor vehicle accidents because “ordinary people expect to receive compensation for injuries caused by the negligence of the driver of a motor vehicle”. The court rejected this submission, holding that the parties were free to contract out of liability if they choose and the terms of the release were broad enough to apply to injuries sustained due to the operation of the defendant’s bus.

Second, the plaintiff argued that the defendant ought to have done more to bring the specific terms of the release about motor vehicle travel to her attention. The court did not accept this argument because there is no general requirement for a party tendering a document for another to sign to tell that person of onerous terms or to ensure that they read and understand it. Such an obligation arises where it is obvious, objectively speaking, that the person signing the document is not consenting to the terms in question.

The plaintiff was also unsuccessful in arguing that, because no one told her that signing the release would prevent her from any recovery for injuries sustained in a motor vehicle collision, the release was unconscionable. The court relied on Loychuk v Cougar Mountain Adventures Ltd., 2011 BCSC 193 to support the proposition that such releases are not unconscionable.

Nonetheless, the court allowed the plaintiff’s appeal on the basis that the release was unenforceable because it was contrary to the public policy of mandatory motor vehicle insurance and the resulting expectation that people injured in car accidents would be compensated. In making this ruling, the majority of the court relied on cases involving employment contracts that purported to contract out of human rights legislation. These contracts were held unenforceable because individuals could not, as a matter of public policy, contract out of the rights and benefits created by human rights legislation.