The guiding and adventure communities are closely watching a lawsuit that could change the way guides and guiding companies operate.
Here’s the backstory.
In November 2021, Ian Manson of Whistler, BC, filed a civil claim against the Canmore-based Association of Canadian Mountain Guides (ACMG), mountain guide Jeffrey Mitchell and the Revelstoke Alpine School.
Manson, 63, injured his hands, arms, torso and right leg in an accident while being guided by Mitchell on Mount Rogers in Glacier National Park in July of 2021.
Both men were hurt and evacuated by helicopter from the mountain face by a Parks Canada rescue team.
In a 13-page notice filed on Manson’s behalf by the Vancouver-based law firm MacKenzie Fujisawa LLP, the civil claim alleges, “The injuries, loss and damages of the plaintiff arising out of the incident were caused by the breach of contract of Mitchell and/of Alpine School and/or negligence of the defendants.”
Manson, an international tax consultant, is seeking costs and damages.
Like anyone on a guided trip, whether it’s whitewater rafting, mountain climbing, backcountry skiing, or other outdoor adventures, Manson signed a waiver acknowledging the inherent risk of the activity.
The civil suit hinges on Manson signing a waiver for a previously guided climb with Mitchell on Mount Begbie near Revelstoke.
The defendants argued that this waiver should apply to the Mount Rogers climb, which occurred a few weeks later and which Mason was never asked to sign.
In May 2023, Madame Justice Hughes of the BC Supreme Court ruled that Manson’s civil suit could proceed.
In her judgment, Justice Hughes said, “The Waiver applies only to the June 18th Begbie Climb; it does not apply to the July 14–15, 2021, Mt. Rogers Expedition during which the Incident occurred. The defendants failed to make out their claim for rectification. In the result, the Waiver provides no defence to the action brought by Mr. Manson against the defendants.”
This paves the way for Manson’s legal action to be heard in court.
Fast Forward to This Year
The defendants requested that key evidence be removed from the civil suit, but the British Columbia Court of Appeal dismissed the request.
In the suit, Manson claims Mitchell and Revelstoke Alpine School failed to take reasonable care to provide a safe trip, the guide lacked the necessary knowledge, and serious technical errors were made that day.
The suit also says the ACMG breached its duty of care.
The climb in question was the third in a series of guided trips Manson went on with Mitchell that summer.
He had signed a waiver prior to the first trip, a day of rock climbing at Begbie Bluffs near Revelstoke.
Mitchell, Revelstoke Alpine School and the ACMG are arguing that the waiver covered all the trips.
Manson disagreed, and so did Justice Jacqueline Hughes, who heard the initial request to remove the waiver evidence in the B.C. Supreme Court.
The recent BC Court of Appeal ruling upholds Justice Hughes’s original decision.
“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.”
In an email to the Rocky Mountain Outlook , Mason explained that the appellate court’s ruling clarifies that guides must not presume a client has signed a waiver unless it is obtained before the trip.
“The court will not force a waiver on a client after the client has been injured,” he said.
This case is being closely watched by outdoor guides and companies across Canada.
Mountain climbing comes with risks, such as rock fall and snow avalanches.
These risks can’t be entirely eliminated or controlled by professional guides.
The standard ACMG waiver states the following at the top:
“By signing this document, you will waive or give up certain legal rights, including the right to sue for negligence, breach of contract, or breach of the occupiers liability act, or claim compensation following an accident.”
In Manson vs. the ACMG, Mitchell, and Revelstoke Alpine School, the courts have agreed that the waiver Manson signed earlier in the summer does not cover that ill-fated climb on Mount Rogers.
The lawsuit will proceed on the basis of that decision.
Needless to say, the mountain guiding community will be closely watching this case.
