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
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
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Endnotes
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1 Mitchell v Manson,
2024 BCCA 142, 2024 BCCA 142 (CanLII)
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2 Manson v Mitchell, 2023
BCSC 723, 2023 BCSC 723 (CanLII)
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3 ACMG What We Do, Public
Accountability Tab: ACMG Public Accountability
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4
Supra #1 Paragraph 10.
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5
Supra #1 Paragraph 71.
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6 Parks Canada, Visitor
Safety, Mount Revelstoke and Glacier Field Unit, Parks Canada
Agency, 2021-07-15, Incident: 2021-VS-1128-MRGFU-0002
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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.
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8 ACMG Who We Are, Mission
Statement Tab: ACMG Mission Statement
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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.
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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.
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SOURCE Ian Manson