ROCK CLIMBING LAWSUIT: COURT REJECTS ATTEMPT TO "REVERSE ENGINEER" A WAIVER

Rare Possibility for Guide and Guiding Association to be Held Accountable

REVELSTOKE, BC, April 23, 2024 /CNW/ - On April 18, 2024, the B.C. Court of Appeal¹ upheld the lower court's decision in Manson v Mitchell² confirming that the liability waiver signed by the plaintiff, Manson, did not cover the climbing trip on which a rockfall climbing incident occurred.  The defendants in Manson's negligence lawsuit are the guide Mitchell, his operating company and the Association of Canadian Mountain Guides (ACMG) that certified Mitchell as a mountain guide.³

Parks Canada: Mitchell’s helmet damaged in his fall (CNW Group/Ian Manson)

Parks Canada: staging area after extraction of fallen climbers (CNW Group/Ian Manson)

As to the basis of the defendants' appeal the court wrote: "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."⁴

And, as to the defendants' impermissible argument, the court wrote: "The appellants were not able to point to a specific palpable error or error of principle committed by the judge …. Rather, their submissions amount to an argument that her conclusion ought to have been different. They refer to Mr. Mitchell's subjective intention, and to the normal commercial practice of requiring a waiver for any expedition, and then attempt to reverse engineer this into an argument that it therefore must have been intended that this Waiver apply to expeditions to which it makes no reference. Again, that is not an approach that is open to this Court."⁵

The incident occurred on July 15, 2021 on Mt. Rogers in Glacier National Park, BC.  Parks Canada described the rock as being a "large fridge-sized rock".⁶  Manson alleges that Mitchell dislodged the rock when Manson was in view below Mitchell. The rock fell towards Manson grazing him in the helmet and causing him to lose his balance and then fall backwards.  Manson's fall caused the safety-rope between Manson and Mitchell to spring tight, catapulting Mitchell from his unanchored stance, causing Mitchell to fall overhead of Manson and then striking the rock face below Manson.  The fallen climbers were evacuated from the rock face by Parks Canada's elite long-line helicopter rescue team.⁷

The ACMG's Mission Statement includes "to protect the public interest in mountain travel…".⁸  To that end, the ACMG previously maintained an incident reporting and learning system.  That system is now "suspended / dead"⁹ over concerns incident reporting may increase the ACMG's exposure to legal action. 

In Manson v Mitchell, the guide Mitchell voluntarily filed a learning submission that included a safety-instruction explaining how he could have avoided a catastrophic fall.¹⁰  Mitchell's safety-instruction when shared with the public could help to protect the public.

The trial to determine if Mitchel and or the ACMG were negligent is set for October 2025 in BC Supreme Court.

See article by Ian Mulgrew at Liability chasm hazard in back country | Vancouver Sun

For more information please contact Michelle Kloet

Endnotes

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¹  Mitchell v Manson, 2024 BCCA 142, 2024 BCCA 142 (CanLII)

²  Manson v Mitchell, 2023 BCSC 723, 2023 BCSC 723 (CanLII)

³  ACMG What We Do, Public Accountability Tab: ACMG Public Accountability

⁴ Supra #1 Paragraph 10.

⁵ Supra #1 Paragraph 71.

⁶  Parks Canada, Visitor Safety, Mount Revelstoke and Glacier Field Unit, Parks Canada Agency, 2021-07-15, Incident: 2021-VS-1128-MRGFU-0002

⁷  Supra #2 Page 3 "Overview", Paragraphs 1-4.  See also Manson's Notice of Civil Claim – available online from CSO - Search Civil by Party Name (gov.bc.ca) civil search terms: Manson, Ian, S-219805. 

⁸  ACMG Who We Are, Mission Statement Tab:   ACMG Mission Statement

⁹  ACMG Arete:    ACMG Arete Winter 2024   The State of Incident Reporting in Canadian Guiding, Mark Klassen, Page 50, Paragraph 2.  See also ACMG AGM President's Report, Sylvia Forest, Page 6, Strategic Planning, Item #1, Paragraph 2.

¹⁰  Document available to be viewed in person: Law Courts, 800 Smithe St, Vancouver, BC, File: S-219805, Document 59 – Transcript, 2-November 2022, Page 40, Lines 22-25.

SOURCE Ian Manson