Tort Law and Negligence

Tort law in Canada refers to the “body of the law which will allow an injured person to obtain compensation from the person who caused the injury” (Tort Law, n.d.). Two categories of torts exist: intentional and unintentional. Intentional torts consist of assault, battery, trespass, false imprisonment, nuisance, and defamation. Unintentional torts primarily consist of negligence (Tort Law, n.d.). In tourism, most lawsuits involve negligence, with one party seeking financial compensation.

Tourism operators must consider their exposure to unintentional torts, primarily negligence. Negligence can be defined as “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something a prudent and reasonable man would not do” (Cloutier, 2000, p. 13). In other words, if the safety standards of a business fall below an established standard and injury occurs as a result, the injured person may sue for negligence.

Pursuing legal action against an operation for negligence is a process that needs to be initiated by the party who has been injured (plaintiff). To be successful, four elements have to be proved: injury, duty to care, breach in the standard of care, and causation.

The first of these, injury, means that it must be shown that the person suing did, in fact, receive an injury that resulted in damages. This might be physical damage, such as a bodily injury, or it may be damage to property.

The concept of duty to care refers to the relationship between the plaintiff and the defendant, a relationship requiring the defending party to care for the plaintiff. For example, in tourism, duty to care relationships exist between hotels and guests, tour guides and tour participants, and instructors and students. Is it expected that the person or organization in the relationship is responsible for ensuring the other person is safe from reasonable harm.

Once a duty has been established, the next step is proving negligence is to show that there was a breach in the standard of care. Can it be shown that the defendant failed to work to the recognized standard? The standard may be established by professional organizations or simply by the “reasonable person test,” which is an assessment of what other individuals or operations would have done in the same situation. Tourism operators are responsible for determining what current standards in industry are; not being aware of industry standards is not be an acceptable defence in the courts.

The last element that needs to be proved is causation. This means that there must be a strong link between the actions of the defendant that caused injury to the plaintiff. As an example, if a ski resort failed to clear the ice off its pathways, and a guest fell and was injured on the icy path, it is likely that causation could be proved (Heshka & Jackson, 2011).

Contract Law

Contracts are frequently used by tourism operators. Common types of contracts include contracts for service, employment agreements, rental agreements, and legal releases [waivers] (Cloutier, 2000). Given the importance of all of these types of agreements, it is vital that operators use documents that are valid and based in contract law. For a contract to be valid and legally enforceable, it must contain all of the following components: an offer and acceptance, consideration, an intent to enter into a legal relationship, and sufficient capacity (understanding) of those involved involved (Longchamps & Wright, 2007). Each of these is described below.

Offer and acceptance means that the “offer” (e.g., a rental car agency will advertise a car for rent) must be clear, unequivocal, and include all of the important and relevant terms in the contract. The acceptance also must be clearly expressed (e.g., the renter agrees to rent the car according to the terms and conditions offered by signing the contract). Once the offer is accepted, it becomes a promise with both parties being bound by the terms of the contract.

Consideration refers to the value that is exchanged between parties in the contract, such as money or services (e.g., the renter pays for use of the rental car). Sometimes consideration is waiving your legal rights for a right to participate in an activity.

Capacity refers to the ability of individuals to enter the contract. If a person signing a contract does not have sufficient capacity, the contract will not be binding. The most common reason for not having sufficient capacity is age. In most cases, a person who has not reached the legal age of majority cannot contract with someone else. Other requirements for capacity include having sufficient mental capacity, and being the authorized signatory (the person with the authority to sign on behalf of an organization) (Longchamps & Wright, 2007).

The implications of contract law to the tourism and hospitality industry are extensive; any contact signed needs to have unambiguous terms, be clearly accepted, have an exchange of value, and be signed by an adult with full mental capacity or by an authorized signatory of the organization. Failing to adhere to any of these conditions will likely result in the contract being considered void.

Waivers

For many tourism operators, waivers are considered a key part of their risk management process. Waivers are particularly important in the adventure, outdoor, and sport tourism sectors where there is a greater risk of personal injury, and have been proven as an effective risk management tool.

A waiver is a form of contract that transfers acceptance of the risk to the participants by requiring them to acknowledge the risks present in the activity. It also requires participants to waive their right to take legal action if an accident occurs. In Canada, these have been repeatedly successful in defending against lawsuits. Despite their effectiveness, there have been cases where waivers have failed to protect an organization, often because the waiver was poorly written or delivered incorrectly (Importance of Waivers in Recreation Programs, n.d.).

To be effective, a waiver should include the following four components:

1. It should clearly outline the risks in the activity; this is ‘voluntary acceptance of risk’ in that the signee accepts the risks of the activity.
2. It should waive the participant’s right to pursue legal action against the tourism operation in case of negligence; this is a ‘waiver of claims’ in that the signee agrees not to pursue legal action.
3. It should be relatively short and easy to read, be easily recognized as a legal document, and include a place for signature that can be witnessed by a company employee. Current best practices indicate a waiver should not be signed by a friend of the signee or another guest.
4. It should be signed by participants only when they have been given ample time to read and understand it well in advance of the event or activity. Failure to provide enough time may be interpreted by the courts as signing under duress, which would make the contract void and mean that the waiver could not be used as a defence against negligence

The components above are brief summary of what components should be included in waiver documentation; legal counsel should be sought to draft a waiver for specific operation (Importance of Liability Waivers in Recreation Programs, n.d.; Karroll v. Silverstar Resorts, 1988).

Statutory Requirements for Tourism and Hospitality in BC

All tourism companies must adhere to the laws in the jurisdiction in which they operate. In BC there are certain statutes (laws) that are particularly relevant to tourism and hospitality. These are outlined in brief below.

Hotel Keepers Act

The Hotel Keepers Act allows an accommodation provider to place a lien on guest property for unpaid bills, limits the liability of the hotel keeper when guest property is stolen and/or damaged, and gives the provider the authority to require guests to leave in the event of a disturbance (Hotel Keepers Act, 1996).

Hotel Guest Registration Act

The Hotel Guest Registration Act requires hotel keepers to register guests appropriately, which includes noting a guest’s arrival and departure dates, home address, and type and licence number of any vehicle (Hotel Guest Registration Act, 1996).

Liquor Control and Licensing Act

The sales and service of alcohol in BC hospitality establishments is highly regulated by the provincial government through the Liquor Control and Licensing Branch (LCLB).

Hospitality operators and their staff must be aware of fundamental requirements of the Liquor Control and Licensing Act, which defines the ways in which alcohol can be made, imported, purchased, and consumed in BC. As these requirements change frequently, it is the responsibility of operators and staff to keep up-to-date on the particulars of liquor legislation.

Travel Industry Regulation

As part of the Business Practices and Consumer Protection Act, the Travel Industry Regulation outlines the requirements for licensing, financial reporting, and the provision of financial security for travel sales. Additionally, it requires licensed travel agents to contribute to the Travel Assurance Fund, which compensates consumers if a travel provider is unable to provide the purchased product due to insolvency (Travel Industry Regulation, 2009).

Occupiers Liability Act

The Occupiers Liability Act specifies the responsibilities of those that occupy a premise such as a house, building, resort, or property to others on their property. It includes a definition of a premise, as well as the duty of care the occupier has to care for the condition of the premises, activities on the premises, and the conduct of other people (third parties) on the premises. It also outlines when occupiers liability is excluded, such as on Crown land or private roads (Occupiers Liability Act, 1996).

Resort Associations Act

The Resort Associations Act was developed to provide opportunities to fund a variety of promotional services for a resort community. It outlines the organizational structure for the community and allows funding through member fees for activities such as marketing, planning special events, developing signage, and acting as a central booking agency (Resort Associations Act, 1996). To meet the criteria for this Act, resort areas are required to be within a designated resort region, have alpine ski lift operations, and provide year-round recreational facilities or commercial overnight accommodation (Government of BC, 2015).