Case File No.________

ONTARIO COURT OF JUSTICE

Between:

Tom Gucci (APPLICANT)

and

Big Snow Ski Resort & Jay Biglow (DEFENDANTS)

Defendants Factum

Jay Biglow

Counsel for the Plaintiff Counsel for the Defendants

Jake Coetzee Mike Malo

Zack Starkman Kyle Fischer

Alex McKay Anthony Adams

AND

Tiana Rasmussen

Riike Olasina

Kyle Barker

Paul Matiychuk

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Introduction

1. This case will address the issue of negligence and liability in regards to the finding of

which party is responsible for the injuries of Mr. Tom Gucci. The plaintiff claims the

injuries were the fault of Big Snow Ski Resort and Mr. Jay Biglow. However, this is

unfounded, as the applicant’s actions, and the resorts failure to ensure the standard of care

as the occupier, led to the injuries suffered by the plaintiff.

Summary of Facts

2. Mr. Tom Gucci (Applicant), a professional Italian engineer on work exchange in Canada,

accompanied a group of colleagues who went to ski at the Big Snow Ski Resort (“The

Resort”) for the weekend.

3. The majority of the group went to free ski, while Mr. Gucci and a fellow colleague opted

to take a two-hour morning lesson before an afternoon ski.

4. Prior to the lesson, Mr. Gucci and his colleague were instructed to pay a fee, and to fill

out required paperwork; including a waiver of liability and the Big Snow Ski School

(“The School”) registration form.

5. The paperwork was completed and signed with pay submitted, the two colleagues

continued on to meet with the group and the instructor, Mr. Jay Biglow (Respondent)

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6. Mr. Biglow, an experienced level II qualified instructor in his second season with The

Resort, inquired about each participant’s ski level prior to the beginning of the lesson.

Mr. Gucci indicated that he was the “same” as his novice-intermediate level colleague.

7. The lesson proceeded to be successful after smoothly completing intermediate level

slopes, and although Mr. Gucci took his share of falls, he continued on.

8. Following the lesson, Mr. Gucci’s colleague asked Mr. Biglow if he could make any

recommendations to a particular slope for the two of them to try in the afternoon.

9. Mr. Biglow stated all the courses at The Resort were enjoyable, but suggested that if they

were up for some excitement, they could try the curves of Rabbit Run.

10. Mr. Gucci went by himself to ski the Rabbit Run, a winding, wooded intermediate slope,

for his first time after having lunch with his colleagues, who had remained inside.

11. While skiing Mr. Gucci lost control once he came across a marked change in terrain,

causing him to fall and throw his body up against a tree.

12. Mr. Gucci did not suffer life threatening problems, or permanent disability, but now has

chronic medical issues, that result in his need to return to Italy.

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Statement of Issues

13. The issues in this motion are as follows:

1) Was there a duty of care owed by any of the parties? And if so, to whom was it

owed?

2) What was the standard of care imposed by this duty?

a. Did the actions and behaviours of Big Snow Ski Resort and Mr. Biglow

fall below the standard of care?

3) What was the proximate cause of the injuries?

a. Were the injuries sustained foreseeable?

4) Did Mr. Gucci sustain the injuries as a result of his negligent actions or those of

Big Snow Ski Resort and Mr. Biglow?

5) Is the waiver valid and applicable in this case?

a. Was the waiver executed in the correct manner?

b. Did it clearly indicate whom and what is being covered?

Arguments

BIGLOW

14. Mr. Biglow is not liable nor did he contribute to Mr. Gucci’s injuries. His actions were

consistent to those of a qualified ski instructor. Mr. Biglow did not fail in his

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responsibilities as in instructor to keep his students safe. Mr. Biglow has no responsibility

for the injuries suffered by Mr. Gucci.

Duty of Care

15. According to Legal Issues in Sport (2008), under particular circumstances, a duty of care

is created to ensure the safety of another person and it requires one to act responsibly

towards others (Findlay et al, p. 10).

16. In Lyster v. Fortress Mountain Resorts Ltd., it was stated that “The duty to take care is

the duty to avoid doing or omitting to do anything which may have as its reasonable and

probable consequence injury to others, and the duty is owed to those to whom injury may

reasonably and probably be anticipated if the duty is not observed.”

Lyster v. Fortress Mountain Resorts Ltd., 1978 CanLII 688 (AB QB) [19]

17. As an instructor, Mr. Biglow owes a duty of care through the principle of proximity.

Proximity is “when it is foreseeable that our conduct may cause injury to those in

proximity (near/close) to us, there is a duty to avoid that conduct” (Findlay et al, p. 10).

18. His actions or directions can reasonably be foreseen to have an effect on the safety of

those under his care during a lesson or while he is skiing.

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19. In the case at bar, as soon as Mr. Gucci joined Mr. Biglow’s lesson, Mr. Biglow began to

owe him a duty of care for the duration of the lesson.

20. It would be reasonable to assume students expect that Mr. Biglow, as an instructor, will

keep them reasonably safe during the course of a lesson. This was also stated in

Rozenhart v. Skier’s Sport Shop, a case involving injuries resulting from inline skates

during a lesson. It was ruled that an instructor is “… under an obligation not to expose his

or her student to any unreasonable risk.” During the lesson, Mr. Biglow did not fail in his

obligation.

Rozenhart v. Skier’s Sport Shop (Edmonton) Ltd., 2002 ABQB 509 [95]

21. Mr. Biglow is responsible for keeping the class safe and properly instructing them, so it

would be reasonable to expect that each student will follow his instructions, as that is

why they took this course. A student’s failure to do so would be out of Mr. Biglow’s

control and could result in injuries occurring to the student. In Knowles v. Whistler

Mountain Ski Corp., it was ruled that “an instructor cannot be expected to assume full

responsibility for the actions of a student, particularly after the lesson is over.” As such,

anything Mr. Gucci did following the lesson or outside of Mr. Biglow’s instructions is

not the responsibility of Mr. Biglow.

Knowles v. Whistler Mountain Ski Corp., 1991 CanLII 1037 (BC SC) [27]

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22. Alternatively, Mr. Biglow did not breach his duty of care as he reasonably ensured Mr.

Gucci’s safety at all times during the lesson and he did not lead him into a situation of

great risk or danger.

23. Mr. Biglow delivered instruction in accordance with how he was taught to by the Canada

Ski Instructors Alliance (CSIA) when completing his Level II certification.

24. There is insufficient evidence to establish a relationship of proximity at the time of Mr.

Gucci’s injuries and it is reasonable to determine one did not exist, as Mr. Gucci and Mr.

Biglow were not in proximity when the injuries occurred.

25. Only during the lesson did a relationship of proximity exist between these two parties.

Standard of Care

26. Emerges from a duty of care, the standard of care acts on what an average, ordinary, and

reasonable person would do in similar circumstances (Findlay et al, p. 11).

27. Since Mr. Biglow is certified by the CSIA, it would be reasonable to assume that he has

greater knowledge about skiing than the average skier. In Roumanis v. Mt. Washington

Ski Resort Ltd., it is stated that an instructor “… would be expected to exercise the skill

and judgment of an ordinary competent ski instructor”. In his position, Mr. Biglow is

relied upon by his students to be not just a teacher, but also to keep them safe and help

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them navigate the slope. In Taylor v. R, this is reiterated when it is stated that an

instructor “… undertakes to do more than teach skiing. He also teaches safety and he acts

as a guide.” This requires Mr. Biglow to be very careful in his instruction and to take all

the necessary steps to keep the students safe. Based on the evidence, he did not breach his

required standard of care.

Roumanis v. Mt. Washington Ski Resort Ltd., 1995 CanLII 763 (BC SC) [28]

Taylor v. R., 1980 CanLII 408 (BC CA) [23]

28. The standard of care placed upon Mr. Biglow as an instructor is to take great care for

those under his guidance. The standard of care required by a ski instructor is described in

Taylor v. R as “… to take such care as a parent would take of his own children.”

Taylor v. R., 1980 CanLII 408 (BC CA) [13]

29. As an instructor, Mr. Biglow upheld his standard of care as no injuries occurred during

the course of the lesson, and he did not lead the students in his care to a situation of

unreasonable risk.

Proximate Cause

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30. Proximate cause is defined as "Given the circumstances, was it reasonable to expect the

defendant’s actions or inaction would have led to the harm that occurred?" (Findlay et al,

p. 21).

31. It was not reasonably foreseeable to Mr. Biglow that Mr. Gucci would have skied on the

Rabbit Run, or even went by himself. He made a suggestion, not instruction, to Mr.

Gucci’s friend, who was more experienced than Mr. Gucci. If Mr. Gucci was to have

skied the Rabbit Run, it would be reasonable to foresee his colleague joining him.

32. It was not reasonably foreseeable to Mr. Biglow that Mr. Gucci would have skied out of

control and ignored the posted signs while he was skiing. It is reasonable to assume Mr.

Biglow would have expected Mr. Gucci to ski in control and observe and follow all

posted warnings.

33. It is also not reasonably foreseeable to Mr. Biglow that the Resort would breach its duty

as an occupier and fail to reasonably ensure the safety of those on its premises.

34. It is therefore reasonably assumed that Mr. Biglow did not expect Mr. Gucci to behave so

recklessly while skiing, nor did he expect that the Resort would allow such a hazard to

exist on the slope.

Waiver

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35. A waiver is a specialized contract with the purpose of ensuring the signee will not make a

claim against an organization in the event an injury or damage occurs (Findlay et al, p.

195). The argument can be made that the waiver signed by Mr. Gucci does not protect the

resort.

36. As an agent of The School, Mr. Biglow was allowed, via contract, to conduct his lessons

on their property. When he wasn’t teaching for The School, Mr. Biglow was a third party

who taught his own lessons on the property. In both instances, The Resort is responsible

for his conduct while he’s on the premises.

37. However, the waiver does protect Mr. Biglow, should negligence be found on his behalf,

though this is unlikely. As the only contact he had with Mr. Gucci was during the school

lesson, Mr. Biglow falls into the scope of the waiver’s protection as an agent of The

School.

GUCCI

38. Mr. Gucci was reckless in his actions and did not take the proper requirements while he

was skiing to reasonably ensure his safety. His actions while skiing were reckless and

negligent, and they greatly contributed to the injuries he suffered. He brought great risk

upon himself by the way he was skiing. He is 60% responsible for his injuries.

Duty of Care

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39. As a skier, Mr. Gucci owes a duty of care to those in his proximity as it is reasonably

foreseeable that other individuals can be affected by his actions while skiing on the hill.

40. Mr. Gucci breached his duty of care to those in his proximity by skiing in an aggressive

manner and not keeping a proper lookout, which could have foreseeably caused injury.

41. As this was his first time skiing this slope, with limited experience, it would be

reasonable to expect Mr. Gucci to have been more careful in his skiing and more aware in

his observation. This was not the case as he did not see the change in terrain, even though

he was warned abut it by the posted signs. The judgment in Wilson v. Blue Mountain

Resorts Ltd. stated “… the skier, however, has an obligation of keeping an especially

good look-out when skiing down a new slope and is contributorily negligent in failing to

do so.” To apply this decision to the case at bar, Mr. Gucci failed to see the change of

terrain while skiing on a new slope and contributed to his own injuries.

Wilson et al. v. Blue Mountain Resorts Ltd., 1974 CanLII 562 [1]

42. Alternatively, Mr. Gucci established a relationship of proximity to all the other skiers that

were on the slope at the same time as him, as it is reasonably foreseeable they could have

been affected by Mr. Gucci’s actions. By skiing recklessly, Mr. Gucci put all those near

him on the slope at risk of injury.

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Standard of Care

43. Every skier is required to ski in control. This standard exists to mitigate the risk skiers

present to others as well to ensure the own skiers’ safety.

44. Abbott v. Silver Star Sports Ltd. is a leading case for the standard of care required by

skiers. In Abbott, the plaintiff sustained a serious fracture of her spine with resultant

paraplegia as a consequence of a skiing accident. The court ruling set a precedent that has

been upheld in many cases with the decision at para. 32:

In my opinion a skier is not skiing “under control” when he or she cannot stop or

take appropriate avoiding action within the range of his or her vision. It is

universally acknowledged by all engaged in the sport, […] that a skier must ski

“under control” at all times. […] Failure to ski “under control” constitutes

negligent conduct which […] may well result in liability for damages being

imposed upon the skier who is not skiing “under control.” (Edited for brevity).

Abbott v. Silver Star Sports Ltd., 1986 CanLII 972 (BC SC) [32]

45. The standard of skiing in control is upheld multiple times in many cases. Feniuk v. Board

of School Trustees of School District No. 54 reaffirms this when it is stated “there are

numerous decisions of courts across Canada that stand for the principle that a skier

must ski under control, and … that is the obligation of every skier who participates in this

particular sport.” This principle exists to ensure the safety of the skier and those on the

hill.

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Feniuk v. Board of School Trustees of School District No. 54, 1991 CanLII 646 (BC SC)

[63]

46. Mr. Gucci breached the required standard of care when he was skiing out of control and

not following the posted signs and warnings. Mr. Gucci was required to ski in control at

all times and he failed to do so.

47. Mr. Gucci also breached this standard by not being observant enough, as stated in para.

41.

48. Even though The Resort failed to put up adequate signs warning of danger or reminders

about proper ski conduct, Mr. Gucci still is expected to ski in control and should not have

to be warned in order to do so. In Abbott, the trial judge ruled: “I cannot accept the view

that a skier is entitled to presume, because of an absence of warning signs, that there will

be no impediment to his skiing ‘out of control’, in the sense of being unable to stop or

take appropriate avoiding action within the range of his vision.” As a reasonable adult,

Mr. Gucci should not have to be warned or told that his skiing out of control is

dangerous.

Abbott v. Silver Star Sports Ltd., 1986 CanLII 972 (BC SC) [48]

Proximate Cause

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49. Mr. Gucci contributed to his injuries by taking an unreasonable risk, failing to properly

observe, and failing to ski in control.

a. Taking an unreasonable risk

50. Mr. Gucci took an unreasonable risk by going to ski alone on a hill when he had a lack of

necessary training, did not know about it’s difficulty, and was not sure he would be able

to handle it.

51. Mr. Gucci was reckless in regard to his own safety, as he did not take the proper steps to

ensure he would be safe before skiing down the hill.

b. Failing to properly observe

52. As stated in para. 41, Mr. Gucci was contributorily negligent for failing to properly

observe the terrain while skiing for the first time on a new slope.

53. There was nothing to stop Mr. Gucci from observing and following the posted signs,

other than a lack of adequate time to prepare, which is the fault of The Resort. In Swartz

Bros. Ltd. v. Willis, the court ruled: “Where there is nothing to obstruct the vision and

there is a duty to look, it is negligence not to see what is clearly visible.”

Swartz Bros. Ltd. v. Wills, [1935] SCR 628, 1935 CanLII 20 (SCC) [23]

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54. Mr. Gucci was not prepared for the change of terrain because he was not as observant as

he was required to be. His injuries were contributed to by his failure to properly lookout

for any hazards that may be on his path, as stated in Marshall v. B.C. (Gov’t.).

Marshall v. B.C. (Gov’t), 1988 CanLII 2984 (BC CA) [6]

55. Additionally, Mr. Gucci failed to observe the Alpine Responsibility Code (The Code). In

Lownds v. Sperker, it is stated that “the Alpine Responsibility Code provides guidance on

the conduct of skiers on Canadian ski hills.” He did not observe two standards of the

code: (1) “Always stay in control. You must be able to stop, or avoid other people or

objects” and (7) “Observe and all posted signs and warnings.”

Lownds v. Sperker, 2014 NSSC 405 [70]

56. The Code serves as a guide for the duties of skiers on the hill, but failure to follow it does

not always have legal consequences. In Lownds is it clarified that The Code “… is not

necessarily determinative, however, of whether a skier has been negligent and is liable

for any resulting injury. The standards set out in the Code are relevant, but, as with the

relationship of the Motor Vehicle Act to drivers’ negligence, they are not the final word

in establishing negligence.” The court should use The Code in helping it make a decision

whether Mr. Gucci’s actions were that of a reasonable skier.

Lownds v. Sperker, 2014 NSSC 405 [70]

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57. Failure to observe The Alpine Responsibility Code would mean Mr. Gucci was skiing in

a manner dangerous to those around him.

c. Failing to ski in control

58. As stated in para. 43, Mr. Gucci was required to ski in control at all times.

59. Mr. Gucci was not skiing in control, as he did not have the ability to stop or take

appropriate action to avoid harm when he encountered danger on the slope.

60. By not skiing in control, he posed a risk to the skiers in his proximity. Not only did his

actions contribute to his injuries, they could have injured other skiers. Mr. Gucci was

reckless in his actions and put himself and others at risk.

61. Mr. Gucci breached the required standard of care when he was skiing out of control and

not following the posted signs and warnings.

d. Foreseeability of injury

62. Skiers must accept that there is the risk of injury when they go skiing. Having skied

before, it is reasonable to expect Mr. Gucci knew the risks of skiing. In Knowles, it was

ruled that skiers are “… a willing participant in a sport that has inherent in it the potential

for falls with consequential injuries.” As Mr. Gucci freely decided to go skiing this day,

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this understanding of risk must apply to him as well, as one who has skied “3-4 times”

before cannot be ignorant of skiing’s risk.

Knowles v. Whistler Mountain Ski Corp., 1991 CanLII 1037 (BC SC) [27}

63. It is not foreseeable that Mr. Gucci would not have skied in control, especially after a

lesson. However, it is foreseeable those skiers on the slope with Mr. Gucci could have

been injured by his recklessness and failure to ski in control.

64. In the alternative, it is foreseeable that Mr. Gucci going off by himself on the Rabbit Run

could cause injuries and bring unnecessary risk onto himself and those around him.

Waiver

65. The waiver is an enforceable legal contract which Mr. Gucci willingly signed. Signing it

was his own conscious decision, and the ruling in Trimmeliti v. Blue Mountain Resorts

Limited can be referred to: “If the plaintiff chose to sign the form and ignore the

consequences, that was a decision freely made by the plaintiff.”

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 [69}

66. The court will find that the waiver is exactly the sort of legal document that can be found

to be in use by similar ski resort operators. The decision ruled on the issue of the waiver

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in Trimmeliti, “the terms set forth in the paragraphs below the title were in fact of the sort

that most people fully expect at ski resorts”, is applicable to the case at bar as well. The

waiver did not contain any clauses that were not drastically different from similar

waivers, nor was there anything added in the waiver that was not commonly found in the

industry.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 [82]

67. Mr. Gucci was clearly told that this form “contained a waiver of liability agreement that

you should read”, and that “completing the waiver agreement was standard practice in the

ski industry and was a requirement of enrolling in the Ski School’s lessons.”

68. The documents title was clear and typed in bold, uppercase letters. It presented it was a

waiver of liability and that it should be read carefully. The waiver itself is clear and easy

to read. It emphasizes important aspects, such as what it is, what it does and what the

signee is agreeing to do by signing it.

69. The risks that may occur were presented in capital letters, which would bring a signees

attention to them. The possible types of injuries and indemnification were laid out clearly

and in an organized, bulleted format.

70. The waiver was clear in its purpose and was created in such a way that it brought the

readers attention to key information about it. In Trimmeliti, it was reasoned that “… it

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would have been impossible for any literate person to have signed this document - even if

they did no more than scan the heading – and remain ignorant of its general purpose and

intent…”, when the waiver was examined by the judge. The same can be concluded about

this document.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 [68]

71. Even if a language barrier existed for Mr. Gucci, which is unlikely considering he came

to work in Canada, it would have been his friend’s duty to help Mr. Gucci understand and

translate the waiver

72. Therefore, Mr. Gucci is bound by the terms of the release under the principles set forth by

the court in L'Estrange v. F. Graucob Ltd., unless he can prove one of two exceptions to

the rule: Karroll v. Silver Star Mountain Resorts. The two rules are laid out in Karroll:

“The first is where the document is signed by the plaintiff ‘in circumstances which made

it not her act’ (non est factum). The second is where the agreement has been induced by

fraud or misrepresentation.” The court will find neither of these exceptions apply to the

case at bar.

Karroll v. Silver Star Mountain Resorts, 1988 CanLII 3094 (BC SC) [24]

THE RESORT

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73. The Resort failed to reasonable ensure the safety of its premises, and as a result,

contributed to the injuries suffered by Mr. Gucci. It allowed an unreasonable danger to

exist on the slope. It also did not adequately warn skiers of the risks that were ahead on

the course due to the placement and type of signage. It is 40% liable for the injuries.

Duty of Care

74. In the case at bar, as soon as Mr. Gucci and his friend came onto the occupier’s premises,

they were owed a duty of care by The Resort.

75. The Occupiers’ Liability Act states in s. 3(1) “An occupier of premises owes a duty to

take such care as in all the circumstances of the case is reasonable to see that persons

entering on the premises, and the property brought on the premises by those persons are

reasonably safe while on the premises”. Section 3(2) of the Occupiers’ Liability Act

states, “the duty of care provided for in subsection (1) applies whether the danger is

caused by the condition of the premises or by an activity carried on on the premises”.

Occupiers' Liability Act, RSO 1990, c O.2

76. The Resort, as the occupier of the property, is responsible for the safety of the premises

and those on it. In Brown v. Blue Mountain Ltd., it was ruled: “An occupier of a premises

owes a duty to take such care as in all the circumstances of the case is reasonable to see

that persons entering on the premises, and the property brought on the premises by those

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persons are reasonably safe while on the premises.” The Resort did not do this as Mr.

Gucci’s injuries were contributed to by the existence of a hazard on the course that was

not adequately marked or warned of.

Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (ON SC)

77. The resort therefore has a duty of care which is established by this legislation.

78. The resort breached its duty under the Occupier’s Liability Act by not reasonably

ensuring the safety of skiers on its premises by not providing adequate warnings of risk

and by permitting an unreasonable risk, for the level of difficulty, to exist on the hill.

Standard of Care

79. In accordance with other ski operators, it would have been reasonable for The Resort to

put up proper warning signs, at adequate distances and mitigate all unnecessary risks

which existed on the slope.

80. The Resort did not properly mark, identify or warn of the change in terrain, which at the

section of the course where Mr. Gucci was injured presented a great risk to skiers. Since

the change of terrain was only noticeable once Mr. Gucci skied over it, he was not

prepared for it and this contributed to his injuries. It was the Resort’s duty to adequately

warn all skiers of this danger. In Wilson, it was ruled that that a danger that cannot be

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seen until it is reached and where the occupier had failed to post adequate warning results

in the occupier being liable to a skier using the trail for the first time for injuries suffered

by reason of the danger.

Wilson et al. v. Blue Mountain Resorts Ltd., 1974 CanLII 562 [1]

81. The resort also breached its duty of care when it posted the warning too close to the risk

present on the hill, when it only posted one warning, as the other sign was just a

reminder, and when it did not reasonably mitigate the risk that existed on the Rabbit Run

slope.

82. As stated in para. 74., the occupier has a duty to reasonably ensure the safety of those on

its premises. The Resort therefore has to take the same procedures and precautions to

ensure the safety of the premises as any other reasonable ski resort is expected to.

83. Additionally, as the occupier, The Resort is also responsible for ensuring the conduct and

safety of third parties on its premises, such as a contracted employee, like Mr. Biglow.

84. The resort did not reasonably satisfy this duty due to the inadequate warnings of the signs

and the presence of a hazard on the Rabbit Run.

Proximate Cause

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85. Several factors can be directly related to the proximate cause of Mr. Gucci’s injuries. The

Resort’s placement of signage on the slope as well as the existence of unreasonable risks

on the slope contributed to Mr. Gucci’s injuries that he suffered as a result.

a. The signs

86. The signs were not a proper warning, nor were they able to sufficiently warn skiers. The

resort placed the signs on the slope that were too close to the actual risk. Therefore, skiers

did not have ample time to understand, appreciate and prepare for the risk ahead.

87. Additionally, there was only one actual warning sign. The second of two signs placed

before the risk read “Ski in Control.” A skier would interpret this to be a reminder, not as

a forewarning that this area requires extra care while skiing. This signs placement at this

location was redundant.

88. The Resort was required to place adequate warnings for skiers so that they could be

aware of upcoming hazards. Placing these warnings right above the actual hazard is not

adequate. To apply the decision in Wilson, in regard to the danger that existed on the

slope: “That being the case there therefore existed an obligation on the occupier who

knew of the dangerous situation to warn skiers of the danger. I have already found that

the warning given as of the day of the accident was quite inadequate.” The same can be

concluded of The Resort’s inaction in the case at bar.

Wilson et al. v. Blue Mountain Resorts Ltd., 1974 CanLII 562 (ON SC) [20]

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b. Existence of unreasonable risk

89. The placement of the signs and their lack of warning resulted in an already dangerous

risk becoming unreasonably risky. The course goes through a wooded area, which in

itself is a risk. Furthermore, at the area where Gucci was injured, the course curves and

changes in terrain.

90. This is an Intermediate hill, but the difficulty of it and the risk presented would make

similar to an Advanced or Expert hill. It is unreasonable to advertise a hill as Intermediate

when skiers would have to contend with risks greater than that of which they would

expect on such a hill.

91. Coupled with the fact the warnings are inadequate, the occupier failed in its duty to

mitigate, let alone eliminate, an unreasonable risk.

92. As an occupier, The Resort breached its required standard of care by not placing adequate

warnings on the course about dangers. It can be expected that any reasonable ski resort

operator would not put a warning sign only right above or before the danger, but ahead of

it too, and make it visible so that skiers can take the appropriate measures to be safe.

93. It is not foreseeable that the occupier would fail in its duty to reasonably ensure the safety

of those on its premises by failing to adequately warn skiers of risks on the slopes and

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allowing the presence of an unreasonable danger on the slope.

94. Such an error by the occupier can reasonably be foreseen to cause or contribute to a skier

being injured, such as in the case of Mr. Gucci.

Waiver

95. The waiver does not protect The Resort from liability for Mr. Gucci’s injuries as they did

not occur during The School lesson. His injuries occurred in his own time while on the

premises, due to the occupier’s negligence, and hours after the lesson at The School

ended.

Liability

96. As stated in para. 48 & 84, Mr. Gucci’s injuries were caused by factors stemming from

both himself and the occupier.

97. The Resort breached the standard of care expected of a reasonable ski operator, and Mr.

Gucci breached the expected duty of care by a reasonable skier.

98. Thus, both of these breaches can be directly linked to the circumstances that lead to Mr.

Gucci being injured.

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99. In the case of Mr. Biglow, he is so far removed from the factors that caused Mr. Gucci’s

injuries, that it would be unreasonable to find him contributorily negligent.

100. Mr. Biglow had no control over how Mr. Gucci was skiing, his equipment, or any of the

duties that the Resort was supposed to carry out in order to ensure the course’s safety.

Remedy Requested

101. Based on all the evidence presented in this case, we ask that all claims against our client,

Mr. Biglow, be dismissed on all accounts from the proceedings.

102. All statements are respectfully submitted this 27th day of November, 2015

Tiana Rasmussen, Riike Olasina, Kyle Barker, Paul Matiychuk

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Table of Authorities

Cases Paragraph

Abbott v. Silver Star Sports Ltd., 1986 CanLII 972 (BC SC) 32, 48

Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (ON SC) 13

Feniuk v. Board of School Trustees of School District No. 54, 1991 CanLII 646 (BC SC) 63

Karroll v. Silver Star Mountain Resorts, 1988 CanLII 3094 (BC SC). 24

Knowles v. Whistler Mountain Ski Corp., 1991 CanLII 1037 (BC SC) 27

Lownds v. Sperker, 2014 NSSC 405 70

Lyster v. Fortress Mountain Resorts Ltd., 1978 CanLII 688 (AB QB) 19

Marshall v. B.C. (Govt.), 1988 CanLII 2984 (BC CA) 6

Roumanis v. Mt. Washington Ski Resort Ltd., 1995 CanLII 763 (BC SC) 28

Rozenhart v. Skier’s Sport Shop (Edmonton) Ltd., 2002 ABQB 509 (CanLII) 95

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Swartz Bros. Ltd. v. Wills, [1935] SCR 628, 1935 CanLII 20 (SCC) 23

Taylor v. R., 1980 CanLII 408 (BC CA) 13, 23

Trimmeliti v Blue Mountain Resorts Limited, 2015 ONSC 2301 68, 69, 82

Wilson et al. v. Blue Mountain Resorts Ltd., 1974 CanLII 562 (ON SC) 1, 20

Corbett, R., Findlay, H. A., & Lech, D. W. (2008). Legal issues in sport: Tools and techniques for the sport manager. Toronto: Emond Montgomery Publications. Pages 10, 11, 21, 195

Legislation

Occupiers’ Liability Act, R.S.O. 1990, CHAPTER O.2

Relevant provisions:

Definitions

1. In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the

activities there carried on, or control over persons allowed to enter the premises,

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despite the fact that there is more than one occupier of the same premises;

(“occupant”)

“premises” means lands and structures, or either of them, and includes,

(a) water,

(b) ships and vessels,

(c) trailers and portable structures designed or used for residence, business or shelter,

(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O.

1990, c. O.2, s. 1.

Occupier’s duty

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of

the case is reasonable to see that persons entering on the premises, and the property brought on

the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused

by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier

of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990,

c. O.2, s. 3.

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Appendix A

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