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B.C. Supreme Court strikes down lawsuit against Cougar Adventures

Plaintiffs allege they slammed into each other on a zipline, causing injury



The Supreme Court of British Columbia has shot down a lawsuit against Cougar Mountain Adventures Ltd., saying a waiver form provides a complete defence.

The incident, which took place on August 18, 2007, saw the plaintiffs, Deanna Loychuk and Danielle Westgeest, the owner of a fitness business and a law student respectively, collide with each other while on a zipline being operated by Cougar Adventures.

Loychuk was sent down the line first and became suspended on the line without reaching the opposite platform. About 500 metres away, Westgeest was sent down the line without being able to see the bottom platform. She flew down the zipline and slammed into Loychuk while she was still suspended there. Both sustained injuries.

Loychuk and Westgeest filed their lawsuit based on four criteria: the waiver was unenforceable because a "reasonable person" would have known the plaintiffs were not consenting to its terms; the waiver is unconscionable; the waiver is invalidated by Section 3 of the Business Practices and Consumer Protection Act; and the waiver is invalid because it was obtained without any, or past, consideration.

Justice Richard Goepel shot down all of these grounds, saying the plaintiffs signed the waiver knowing that it was a "legal document affecting their rights."

Cougar Adventures admitted that the negligence of its employees caused the accident but even with that, the plaintiffs signed a waiver of liability as a requirement of participating in the ziplining activity.

Westgeest, he noted, had just completed a law degree and was "fully familiar with legal terminology."

The release, Goepel went on to say, sets out that the consideration for the waiver is Cougar's agreement to allow the plaintiffs to take part in ziplining. For that reason and others, the waiver was considered valid and enforceable, giving the defendants a complete defence against the plaintiffs' claims.