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Appeal court upholds evidence for civil lawsuit against guide, alpine school, ACMG claiming negligence, breach of duty

An appeal to remove key evidence in a civil suit against a guide, guiding company and the Association of Canadian Mountain Guides (ACMG) was dismissed by the British Columbia Court of Appeal.

VANCOUVER – An appeal to remove key evidence in a civil suit against a guide, guiding company and the Association of Canadian Mountain Guides (ACMG) was dismissed by the British Columbia Court of Appeal.

The court upheld a previous 2023 decision by the B.C. Supreme Court that a waiver signed by a Whistler resident on a 2021 guiding trip was not necessary evidence to dismiss the case due to it being for a previous guiding trip and not the specific one where the man was injured.

“There is no law against mountaineering without agreeing to waive liability; it is simply what guides generally require through contracts of adhesion,” stated the appeal court’s decision, written by Justice Christopher Grauer and agreed to by justices James Fitch and Joyce DeWitt-Van Oosten.

“But if no waiver is proffered for the expedition in question, the expedition may lawfully be undertaken without it. That is solely a matter between the parties.”

The appeal stems from the launch of a notice of civil claim filed by Ian Manson in 2021 in the B.C. Supreme Court against the ACMG, Revelstoke Alpine School and guide Jeffrey Mitchell.

Manson suffered multiple injuries that led to loss of skin on his hands, arms and torso; cuts on his hands, arms, torso and right leg; hematoma to his right leg and multiple psychological injuries such as anxiety and post-traumatic stress disorder.

Manson was seeking medical costs – past, present and future – from the injuries sustained. The civil case is scheduled to be heard in October, 2025.

Manson hired Mitchell as a guide for a mountaineering trip in Glacier National Park in July, 2021, for an ascent on the face of Mount Rogers near Revelstoke. The two had climbed with one another two times that summer.

They were climbing at about 3,000 metres elevation and were connected with belay loops with about 10 metres of working rope, according to Manson’s suit.

When Mitchell was climbing first to set up the upper belay station, he let Manson know it was safe to move up, stated Manson’s 2021 statement of claim.

However, as Manson began climbing upwards, Mitchell was testing the stability of a large rock roughly the size of a fridge with his foot, leading the boulder ti dislodge, falling toward Manson, according to the 2021 lawsuit.

The rock grazed his head and Mitchell let go of the rope connecting them, causing Manson to fall backwards at least seven metres and reached the end of his line.

Manson found a small ledge to stand on and the rope tightened, moving Mitchell from the belay stance, pulling Mitchell into the air and down the face of the mountain. Manson was able to hold onto the rope, braced himself and tried to slow Mitchell’s fall, stated the statement of claim.

A Parks Canada search and rescue team provided a helicopter long-line to rescue both Mitchell and Manson.

Manson’s civil claim named 14 breaches of the contract between him, Mitchell and the Revelstoke Alpine School. Among the breaches were failure to take reasonable care to provide a safe trip, lacking appropriate knowledge as a guide and multiple technical errors that led to an unsafe climb.

It also had eight breaches of duty of care by the ACMG.

Kevin Dumba, the executive director of ACMG, said due to the lawsuit being ongoing the organization was unable to comment. An attempt to reach Revelstoke Alpine School and Mitchell was unsuccessful.

The ACMG has a membership of about 1,500 active members of climbing instructors, hiking guides and mountain guides. The ACMG was the first member of the International Federation of Mountain Guides Association from outside of Europe.

In their decision, the three justices wrote “the case illustrates the sort of problem that can arise when a liability waiver is completed online”, with it not serving as “complete defence”.

The court noted Manson had signed a waiver June 17, 2021, before his first climb with Mitchell, but not the subsequent two climbs.

Justice Jacqueline Hughes, who heard the initial request to remove the waiver evidence in B.C. Supreme Court, stated in the 2023 decision, that the waiver didn’t work for the Mount Rogers climb.

“The appellants raise a number of issues, which are essentially six different ways of saying the same thing: that the judge erred in interpreting the waiver as applying only to the June 18 climb,” stated the Court of Appeal decision.

“The appellants contend that the judge palpably erred in finding that there was no further discussion about the waiver, asserting that the parties discussed it in the car on the way to the Begbie Bluffs climb … and discussed it again during the Mt. Denman climb.”

Mitchell, Revelstoke Alpine School and the ACMG contended the waiver “represented the first day in a series of guided outings that the parties planned to undertake together that summer,” according to the appeal court’s findings and review of Hughes’ decision.

However, Hughes stated in 2023 the waiver specifically mentioned the Begbie Bluffs climb and no other climbs. The appeal court noted Manson included previously signed waivers from 2018 and 2019 that listed multiple climbing trips for specific dates.

The appeal court agreed with Hughes’ decision, highlighting Mitchell didn’t raise the waiver at the time of the Mount Rogers climb.

“What is undoubtedly clear on even Mr. Mitchell’s evidence is that he did not raise the waiver himself or communicate any intention at any time that the waiver applied to any expeditions beyond the Begbie Bluffs,” stated the appeal court’s decision. “Nothing about this evidence compelled the conclusion that the parties mutually understood that the waiver applied to the Mt. Denman climb.”

The appeal court noted the case wasn’t about whether the waiver would protect the ACMG, Revelstoke Alpine School and Mitchell for negligence or breach of contract, but whether Hughes “erred in failing to find it broad enough to apply to any expedition other than the first climb on June 18, 2021.”

The appeal court noted both Manson and Mitchell disagreed about evidence presented to the appeal court.

“The appellants were not able to point to a specific palpable error or error of principle committed by the judge in undertaking this process,” according to the appeal court’s decision. “Rather, their submissions amount to an argument that her conclusion ought to have been different.

“The appellants seem to be arguing that because Mr. Manson almost certainly would have signed a waiver for the Mount Rogers expedition, or indeed for the entire summer, if asked to do so, it must be inferred that he intended this particular waiver to have that application,” stated the appeal court. “But respectfully, that is false logic. It is not what Mr. Manson might have been prepared to agree to that matters. What counts is what he did in fact agree to when he signed the waiver.”

Manson said in an email to the Outlook the appeal court’s decision makes it clear if a guide does not request a client to sign a waiver before a trip, then the court will not deem the client to have signed a waiver.

“The court will not force a waiver on a client after the client has been injured,” he said.

He added his hope is the law in B.C. and Alberta is eventually changed to align with Quebec law, where it’s not allowed for a climbing guide to be released from liability for their potential negligent conduct if a client is injured.

He said he felt “climbing guides should be treated the same as any other professional whose negligent conduct injures their client.”

Hughes’ decision noted Mitchell is insured through the ACMG’s insurance program, which requires all clients sign the ACMG’s release of liability.

Hughes’ role was to read the contract and see if the waiver was intended for just the June 18, 2021, Begbie Bluffs climb near Revelstoke or also any subsequent climbs Manson did with Mitchell and Revelstoke Alpine School.

“After reviewing the evidence, the judge concluded that the objective mutual intention of the parties as stated in the waiver, interpreted in the context of the surrounding circumstances, was that the waiver was limited in its application to the one trip of June 18, 2021,” stated the appeal court’s overview of Hughes’ decision.

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