Dear Colleagues:

I post this on behalf of Jacob Ziegel:      

  Loychuk v. Cougar Mountain Adventures Ltd. (2012) 347 DLR (4th) 591, BCCA. Colleagues, If you haven't already done so, I urge you to read this decision. In my view, the Court gave far too narrow a reading to the reach of the unconscionability doctrine by limiting it to procedural unconscionability. The question the Court should have asked itself was whether it was reasonable for the commercial enterprise to impose on its patrons the risk of an accident caused by the negligence of the enterprise's employees. The answer surely was that it was not (a) because the enterprise best knew what the risks were, hired the employees,  was responsible for training them, and was in the best position to obtain insurance coverage; and (b) because the plaintiff couldn't reasonably have anticipated the risks she was running in releasing the enterprise from all liability in the event of an accident.

        The judgment refers to various reports addressing the liability of the sponsors of sporting events but fails to appreciate the significance of the recommendations in the reports and (even more significant) the fact that more than 20 years ago the English Unfair Contract Terms Act outlawed exclusion clauses for personal injuries for precisely the reasons I've outlined above.

        I'm also troubled by the SCC's denial of leave to appeal. I haven't seen the appellant's factum so I can't comment on it but it seems unlikely that it wouldn't have raised the above issues. Even it  didn't , shouldn't the SCC panel itself have appreciated the distinction between procedural and substantive unconscionability? I'm troubled too by what may be taught in current contract classes. Is it conceivable that students are being told that substantive unconscionability doesn't matter so long as there's no procedural unconscionability provided the consumer 'willingly and knowingly' signed the release form?

        All the best. Jacob

JACOB S. ZIEGEL, Professor of Law Emeritus
Faculty of Law, University of Toronto,
78 Queen's Park,
TORONTO M5S 2C5, Canada

(T) 416 978 3717
(Fax) 416 978 2648

-- 
Jason Neyers
Cassels Brock LLP Faculty Fellow in Contract Law
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435