Criminal negligence relies on the Supreme Court ruling of R. v. Creighton (1993). It holds that liability of criminal negligence requires a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances. There must a basis to infer on an objective foresight test that the defendant failed to direct his or her mind to the risk and the need to care.
Negligence relies on three previous rulings: Lowry v. Canadian Mountain Holidays Ltd. (1987), Scurfield v. Cariboo Helicopter Skiing Ltd. (1993), and Lapointe v. Hospital Le Grandeur. The conduct of the defendant(s) is measured against accepted practice within the relevant profession or that the practice itself is deficient.
For a waiver of liability to be binding, it must undergo a three-part test. First, non est factum, or whether the signer can escape being bound due to a lack of understanding of the document such as a language barrier. Second, the construction/scope, or if the clause’s wording is not specific enough to the negligence alleged. Third, unconscionability, whether the clause was procured during duress, coercion, or exploitation of unequal bargaining power.
Core Rule: The liability waiver signed for a high risk commercial activity is enforceable, a provider’s conduct meets the standard of care, where the signer had a genuine opportunity to understand the risk assumed, the waiver’s language covers the negligence alleged, and the providers practices matched industry custom.
12 March 1991, Alfonoso Ochoa, along with eight other people, was killed by a large avalanche while heli-skiing with the company Canadian Mountain Holidays (CMH). The 11-person group was guided by defendant Jocelyn Lang, and was the second group making the run that day, following behind another group of the same size guided by defendant Dean Walton. Of the nine individuals swept away by the avalanche, Ms. Lang was the sole survivor and sustained only minor injuries. The avalanche occurred in the Bugaboos mountain range in British Columbia. All individuals had to sign a waiver of liability prior to participating.
Plaintiff: Ms. Lang was criminally negligent as she failed to test snow stability before descending, which was a departure from industry standards. The guide’s collective decision to ski the run and CMH’s avalanche forecasting system fell below industry standards, or that the industry standard itself was deficient. The waiver of liability was invalid due on the grounds of non est factum (language barrier), insufficient scope to cover this type of negligence, and unconscionability. The plaintiff relied on a ‘consumption chart’ to demonstrate Mr. Ochoa’s net worth and future expectations for damages should the court find the defense liable.
Defendants: Lang is not criminally negligent as she had tested snow stability via pole-plant, kept the group to the right as instructed by the senior guide, and that no guide present saw the day as unusual, including Walton who had just skied the run. The decisions and procedures matched customary practice and that no operator tests every run before use, therefore, no defendant can be held for negligence. The waiver of liability is valid because Mr. Ochoa had a history with the English language and had signed previous waivers with CMH, the wording covered the alleged conduct, and there was no evidence of duress, coercion, or exploitation. The defense argued that the ‘consumption chart’ did not accurately reflect the damages alleged due to Mr. Ochoa’s debt load, the instability of the 1994 Mexican economy, and if the asset sale to Mr. Ochoa’s brother reflected fair value.
The court did not find Ms. Lang criminally negligent, dismissed the negligence claims against all defendants, and held the waiver of liability valid and, independently of the negligence finding, sufficient to exonerate the defendants. The court additionally found no evidence that the industry standards of avalanche forecasting were negligent. Because the court found no liability on any basis, it did not assess damages.
