B.C. appeal court holds Release and Waiver that included subsequent activities does not bar claim for MVA injuries

In Niedermeyer v. Charlton, 2014 BCCA 165, the British Columbia Court of Appeal, by a 2-1 majority, reversed the summary trial decision that had found a Release and Waiver Agreement barred the plaintiff from suing for injuries sustained in a motor vehicle accident that took place after she engaged in zip-lining activities.

The majority found that the Release and Waiver was contrary to public policy which provides for a compulsory and mandatory automobile insurance scheme and parties cannot contract out of that program.

The majority stated, in part:

72 In my opinion, it is contrary to public policy to permit the owner and/or operator of a motor vehicle to contract out of liability for damages for personal injuries suffered in a motor vehicle accident in British Columbia. British Columbia has a statutory scheme of compulsory universal insurance coverage for damages for personal injury arising from motor vehicle accidents, as well as other types of insurance not pertinent to this discussion. In the face of the legislature’s intention in enacting that statutory scheme, and for the reasons that follow, I believe it would be contrary to public policy to permit the respondents to enforce the release of liability for a claim that arose not from an injury that occurred in the course of the Ziptrek activity, but rather in the course of transportation to the site of that activity.

Arguably, and subject to closer scrutiny, this reasoning would apply to all provincial automobile insurance regimes that are compulsory and mandatory, even where there are differences, (most notably, in B.C., the establishment of the Insurance Corporation of British Columbia, which administers what is called a “universal compulsory vehicle insurance” scheme for residents of British Columbia, but which also provides that non-resident drivers are eligible for compensation under the scheme). The majority alludes to this at para. 107 of their reasons, where they state, “that universal and compulsory insurance coverage for injuries sustained in motor vehicle accidents [has] achieved a high level of societal acceptance is illustrated by the fact that, in one form or another, every province in Canada has enacted such legislation”.