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Facts[]

Karroll had sustained a broken leg when she collided with another skier while participating in a downhill recreational skiing competition sponsored by the resort. The resort had retained Vernon Ski Club to provide starters, timers, recorders and gate keepers for the race, and had paid club an honorarium for their services. Vernon had been told by the resort it and its members were covered by the resort's liability insurance and by waivers releasing them from liability. Karroll had participated in the event for four years prior to the race in which she was injured, and had always been required to sign a release. Prior to participating in the race, she had signed a one-page document headed "Release and Indemnity-Please Read Carefully". The heading was in capital letters. In signing the release, Karroll agreed to assume risks inherent in participating in the race and release the resort and its agents from all claims resulting from personal injury arising out of participation in the race. She did not recall whether she read the heading at the top of the form, and asserted she did not read the body of the document. She acknowledged she could have read the document in one or two minutes, but was unable to recall if she was in fact given an opportunity to take the time to read it. Karroll contended she was not bound by the release, arguing she was not given adequate notice of its contents or sufficient opportunity to read and understand it. Alternatively, she submitted that the document afforded a defence only to the resort, not to the ski club and its members.

Issue[]

  1. Is the indemnity agreement binding, and if so, on whom?

Decision[]

Action dismissed.

Reasons[]

McLachlin held that it was not a general principle of contract law that a party proferring for signature an exclusion of liability must take reasonable steps to bring it to the other party's attention. The burden was on Karroll to show fraud or misrepresentation, or that Silver Star knew or had reason to know she was mistaken as to terms of the document. Relevant factors to consider in determining whether there was a duty to take reasonable steps to advise of an exclusion or waiver include:

  1. the effect of the clause in relation to the nature of the contract;
  2. the length and format of the contract; and
  3. the time available for reading and understanding it.

Karroll signed the release knowing it was a legal document affecting her rights. The release was short, easy to read and headed in capital letters. In the circumstances, a reasonable person in would not conclude that Karroll was not agreeing to terms of the release. In any event, Silver Star took reasonable steps to discharge any obligation to bring the contents of the release to Karroll's attention.

As to whom the release covered, the terms of the release were broad enough to encompass Karroll's claims against Vernon Ski Club and its members, even though the club was not a party to the release - the release clearly stated that waiver of liability extended to agents and indicated that resort was contracting on behalf of its agents.

Ratio[]

  • It is not a general principle of contract law that a party must draw attention to an exclusion of liability clause.
  • To find if there is a duty to draw attention, one must look at:
    • the effect of the clause in relation to the nature of the contract;
    • the length and format of the contract; and
    • the time available for reading the contract.
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