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					   COTA Insurance and
Risk Management Program

HANDBOOK          2005
Publication Disclaimer
This publication is current at the time of writing but the reader should be aware that information may change after the

publication date. The author has tried to make the content of this publication as complete and accurate as possible, how-
ever, there may be mistakes, both typographical and in content.

This publication is intended only as a general guide to the reader and is not intended to be used as a substitute for

professional advice.

The recommendations provided in this publication are based on the author’s experience and research, believed to be reliable

and accurate, but not infallible. The examples presented in this publication have been chosen solely to demonstrate given

points. In all cases, the reader should carefully consider whether these recommendations, examples, sample plans or operating

guidelines are suitable for the reader’s individual circumstances. Sample risk management plans and operating guidelines

published by COTA are of a general nature and are not intended as specific advice for a particular reader or business.

As a general publication, it is impossible to offer specific advice to a particular reader. As such, the reader assumes all risk

of, and the author and publisher disclaim responsibility to any person or entity for, any liability, damage or loss that

results, directly or indirectly, from the use or application of the information contained in this publication.
TA B L E O F C O N T E N T S

PART 1 — INTRODUCTION                                1   APPENDIXES                                     10
1. Council of Tourism Associations of                    1. Trip Plan                                   10
   British Columbia                                  1     a) Trip or activity description              10
2. The COTA Insurance Program                        1     b) Itinerary                                 10
  a) Program background                              1     c) Suitability of clientele                  10
  b) Program philosophy and description              1     d) Logistics                                 10
  c) Program participant agencies                    2     e) Trip approval                             10
  d) The insurance policy                            2     f) Trip or activity policies                 10
3. The BC Tourism Industry Insurance and                   g) Hazard identification and risk analysis   11
   Financing Project                                 2
                                                           h) Loss controls                             11
PART 2– A RISK MANAGEMENT PRIMER                     4     i) Emergency contacts                        11
1. What is risk management?                          4   2. Guide Protocols                             11
2. The Five Stages of Risk Management                4     a) Incident response types                   11
  a) Prevention and Prevention Strategies            4     b) Response protocols                        11
  b) Preparedness                                    4     c) Communications                            12
  c) Operations                                      5     d) Media and Public Interviews               12
  d) Response                                        5   3. Safety Talks                                13
  e) Recovery                                        5     a) Introduction                              13
                                                           b) Trip specifics                            13
PART 3 – THE APPLICATION PROCESS                     6
                                                           c) Assess the participant                    13
1. Application, Assessment, Quotation, Billing
   and Payment Process                               6     d) Participants’ responsibilities            13
  a) Insurance application                           6     e) Medical information                       13
  b) Application process and fees                    6     f) Food                                      13
  c) The application form and activity supplements   6     g) Expectations of the company and guide     13
  d) Application assessment and review process       6     h) Waiver                                    13
  e) Premium quotation, billing and payment          7     i) Participant’s clothing and equipment      13
2. Risk Management Requirements of the COTA                j) Group equipment                           14
   Insurance Program                                 7     k) Terrain and activities                    14
  a) Risk management documentation                   7     l) Emergency procedures and first aid        14
  b) Loss control program                            8     m) Closing                                   14
  c) Operating guidelines                            8   4. Loss Control Program                        14
  d) Waivers                                         8   5. Incident Report Form Sample                 15
  e) Post-incident actions                           8   6. Waver Forms                                 17
  f) Record keeping                                  8
  g) Audits                                          9
3. Operational guidelines                            9
·   COTA INSURANCE AND RISK MANAGEMENT PROGRAM
PA R T 1 — I N T R O D U C T I O N

1. Council of Tourism Associations of British Columbia
COTA is a federation of tourism associations and businesses representing the interests of 18,000 tourism operators
in British Columbia. It speaks on behalf of the provincial tourism industry, providing a tourism perspective to
the public, government, business community, and media.
COTA remains at the forefront working with industry and government to foster sustained growth. It is particularly
concerned about matters affecting transportation infrastructure and policies, a skilled workforce, land use,
taxation and regulation, and funding for tourism marketing. The organization is committed to advising the
provincial and federal governments on tourism policy development and ways to improve the business and
investment climate to eliminate barriers to tourism growth.
For the latest tourism news, reports and research, visit COTA online at www.cotabc.com


2. The COTA Insurance Program
The premise of the COTA program is that accurately and expertly assessed business information, in conjunction
with an appropriate risk management program, should reduce the insurance premium charged to a tourism business.

A) PROGRAM BACKGROUND
The COTA Insurance Program is an insurance program developed by COTA, AdventureInsurance.ca, and the risk
management firm Pinnacle Risk and Insurance Consultants Inc. to provide the adventure tourism industry
with reasonably priced insurance coverage.

B) PROGRAM PHILOSOPHY AND DESCRIPTION
The program is based upon the philosophy that properly implemented risk management actions will reduce the
frequency and the severity of accidents, and that premiums should reflect these efforts. The insurers have worked
with Canada’s leading adventure risk management consulting firm and adventure sport defence attorney in
the design of the program.
The COTA Insurance Program is based upon the premise that the risk to an insurer is influenced by a number
of interrelated factors. These include the:
 • Number of user days
 • Operational controls and supervision
 • Operating terrain
 • Guide competencies (training, qualifications, and experience)
 • Administrative procedures (contractual exclusion of liability program, risk management planning,
   emergency response planning, and safety briefings)
 • Post-incident management and intervention
 • Claims history
 • Moral risk (the human, subjective element of the risk)
 • Expertise applied in rating the risk inherent in adventure sports



HANDBOOK                                                                                                            1
The COTA Insurance Program adopts a well rounded approach to risk management and consists of the following
interrelated components:
    • An application process that is intended to gather enough business information to accurately assess the
      type and level of business operations
    • An expert assessment and review of the application against the risk management requirements of the program
    • Written operating guidelines for each sport that provide operating guidelines for businesses insured in
      the program
    • Standardized risk management plans, emergency response protocols, and client safety talks
    • Expertly crafted exclusion of liability program
    • Loss control program to reduce frequency and severity of incidents
    • Operational audits
    • Appropriate record keeping

 C) PROGRAM PARTICIPANT AGENCIES
—COTA
In an attempt to provide a service to its membership, COTA is the facilitator of this insurance and risk
management program.
—Insurance Broker
The insurance broker for the program is: Adventure Insurance Agency
Tel: (866) 889-4762 ext. 22 Fax: (514) 394-1180 (www.adventureinsurance.ca).
—Insurers
Information on the insurers of the program can be obtained by contacting the Insurance Brokers.
—Risk management consultant
The risk management consultant for the program is Pinnacle Risk and Insurance Consultants Inc.
(www.Pinnacle-Risk.com).
—Consulting attorney
The consulting attorney for the program is Robert Kennedy of Farris & Company (www.farris.com).

D) THE INSURANCE POLICY
The complete coverage summary insurance policies may be found on the web at www.adventureinsurance.ca.
Individual businesses may receive policies that contain additional riders. These riders may considerably
change the content of the policy and the applicant must carefully read these addendums.
Please refer to the policy on the www.adventureinsurance.ca website for coverage amounts. Additional
coverage may be requested at the time of application.


3. The BC Tourism Industry Insurance and Financing Project
The events of 9/11, the stock market downturn in 2001—2002 and other global events had a far—reaching
effect on many industries around the world as insurance costs soared. One of the hardest hit industries was
tourism, particularly the nature—based tourism sector, which generates an estimated $800 million a year in
British Columbia.
Recognizing the serious harm soaring insurance costs would have on BC's tourism industry, the Council of
Tourism Associations of British Columbia (COTA) in 2003 conducted a survey of 450 tourism operators, who
said that insurance availability and cost were hurting their business more than SARS, wildfires and global
instability. Ninety-four per cent said that cost increases for liability insurance were hurting their business.




2                                                 COTA INSURANCE AND RISK MANAGEMENT PROGRAM
With support from the provincial Ministry of Small Business and Economic Development and Western Economic
Development, COTA embarked on the BC Tourism Industry Insurance and Financing Project.
COTA assembled a panel of experts from industries in tourism, financing, insurance as well as government to
oversee the development of a report that would provide recommendations on how to deal with the insurance
difficulties facing numerous sectors of the tourism industry in BC.
After further industry input gathered at its November 2003 symposium covering the issue, COTA published
“The British Columbia Tourism Industry Insurance and Financing Report (December 2003)", detailing the extent
of the insurance crisis within the tourism industry and providing many recommendations on ways to:
  • Increase the affordability of insurance for tourism operators in all sectors,
 • Encourage consistency with good business and safety practices,
 • Provide a safe environment for tourists, operators and employees, and
 • Provide adequate protection of operators through insurance and financing availability.
Among its many findings, the report stated that professionalism, risk management and increased communication
with insurers would need to be the foundation of a new approach to better insuring the tourism industry in BC.




HANDBOOK                                                                                                         3
PA R T 2 — A R I S K M A N A G E M E N T P R I M E R

1. What is risk management?
Risk management is a logical and planned approach taken by a business to manage the risks to participants,
staff, and business. It is about managing or optimizing risks; it is not necessarily about eliminating them.
Risk is inherent in adventure activities—and should remain so. Risk management is concerned with all types
of risk and involves choosing appropriate techniques for dealing with the hazards faced by a business.
Risk management should be looked on as a complete loss control program, not as any one technique, action
or document. A well rounded approach to risk management needs to be taken and is comprised of the following:
    • Identifying the hazards in the business’s activities
    • Evaluating these hazards
    • Implementing loss control strategies to reduce the frequency and severity of accidents
    • Adequately informing participants of the risks involved in the activitie
    • Pre-planning appropriate responses to incidents
    • Responding appropriately when incidents occur
    • Maintaining appropriate records and documentation


2. The Five Stages of Risk Management
Risk management is a series of actions that fall into five general stages. These are:

A) PREVENTION AND PREVENTION STRATEGIES
In this stage, hazards are identified and preventative strategies are implemented. Examples of prevention
activities include:
    • Identifying potential hazards
    • Analyzing the frequency and severity of hazards
    • Analyzing the impact of the hazards (vulnerability analysis)
    • Developing an occupational health and safety plan (which is a WCB requirement separate from this
      insurance program)
    • Developing transportation policies

B) PREPAREDNESS
In this stage, preparation is made for an emergency, and emergency plans are rehearsed. Examples of
preparedness activities include:
    • Identifying field operating standards
    • Developing trip plans
    • Developing emergency response plans




4                                                   COTA INSURANCE AND RISK MANAGEMENT PROGRAM
 • Developing emergency protocols for guides
 • Identifying evacuation methods
 • Developing contingency plans
 • Conducting staff training
 • Undertaking the simulation of emergency situation scenarios

C) OPERATIONS
In this stage, operational procedures are implemented to ensure the ongoing safety of participants, staff and
business. Examples of operations activities include:
 • Giving safety talks
 • Implementing guide to participant ratios
 • Using appropriate communication systems
 • Following operating standards
 • Following appropriate instructional progressions
 • Exercising appropriate control and supervision over participants

D) RESPONSE
In this stage, emergencies are responded to in a timely and professional fashion. Examples of response
activities include:
 • Giving first aid treatment
 • Conducting search or rescue activities
 • Responding to near misses
 • Conducting liaison with emergency services
 • Keeping written journals of response actions
 • Collecting witness statements and contact information
 • Writing incident reports

E) RECOVERY
This stage is the implementation of recovery processes to return to the routine. Examples of recovery
activities include:
 • Public relations
 • Media relations
 • Family relations
 • Insurer relations
 • Attorney relations
 • Incident investigation and information gathering
 • Record keeping
 • Participant and staff debriefing
 • Dealing with erroneous information
 • Participant and staff counselling




HANDBOOK                                                                                                        5
PA R T 3 – T H E A P P L I C AT I O N P R O C E S S

1. Application, Assessment, Quotation, Billing and Payment Process
The following section describes how the application, assessment, quotation, billing, and payment processes
work for the COTA Insurance Program. Detailed information about how to fill in the application can be
found in the Application for Insurance Help Guide on the www.adventureinsurance.ca website.

A) INSURANCE APPLICATION
The application forms are intended to gather appropriate information that will enable the insurer to accurately
and fairly assess the risk of underwriting the business. It is important that the information provided by the
operator to the insurer is accurate and truthful and that the operator is diligent in implementing the risk
management program. The premise of this insurance program is that accurate and expertly assessed business
information, in conjunction with an appropriate risk management program, should reduce the insurance premium
charged to an adventure tourism business.

B) APPLICATION PROCESS AND FEES
The application for insurance is to be completed and submitted electronically through the secure website
www.adventureinsurance.ca
At the time of submission, a $200.00 application fee is required. This annual fee is payable directly to the
insurance broker.
After the application is assessed the broker will receive a premium quotation from the insurer who will then
advise the operator.

C) THE APPLICATION FORM AND ACTIVITY SUPPLEMENTS
The application form and activity supplements can be found on the www.adventureinsurance.ca website.
Operators must complete the general application form and any activity supplements that apply to their business.
Operators will not be insured for activities they do not apply for. If you do not see a supplement for your
activities, please contact the broker to determine eligibility. For more detailed application information, please
see the “Insurance Application Help Guide.”

D) APPLICATION ASSESSMENT AND REVIEW PROCESS
The application for insurance will be forwarded to Pinnacle Risk and Insurance Consultants Inc. and assessed
to determine if the application meets the standards of the risk management program. Variances above and below
the risk management program standard will be acknowledged by the insurer. It is anticipated that variances
above or below this program’s risk management requirements will affect the premiums charged or the operator’s
participation in this program.
It is the obligation of the insured business to report any material changes in the business’s risk to the broker.
Coverage reassessments may be required whenever business operations change. Reassessments are required when:
    • New activities are added to a business that were not included in an earlier application assessment
    • The contents of the business’s risk management documentation change
    • The contents of the business’s loss control program change
    • Any changes to the operations that the insurer should be aware of



6                                                 COTA INSURANCE AND RISK MANAGEMENT PROGRAM
Note: Operators should not assume that changes to their business operations are covered in their insurance
policy without a reassessment.
Applications and reassessments will be assessed solely on the merits of the application and required
documentation. The documentation might be requested at the time of making an application or during the
policy period. Operators will have 15 days to submit the necessary documentation when requested to do so
by the insurer.

E) PREMIUM QUOTATION, BILLING AND PAYMENT
The insurance premium will be determined by the insurer (this is the underwriting process) and a quotation
will be provided to the broker who will then advise applicant.


2. Risk Management Requirements of the COTA Insurance Program
It is the responsibility of an adventure operator to exercise due diligence in the application of risk management
processes to his or her business operations. The following section describes the risk management expectations
of the COTA Insurance Program. These actions need to be implemented before insurance coverage. The application
for insurance will be assessed against the following criteria.

A) RISK MANAGEMENT DOCUMENTATION
Risk management documentation is an important part of demonstrating that due diligence has gone into the
Prevention and Preparedness stages of the risk management process. The preparation of documentation such
as trip plans, risk management plans, emergency response plans, and emergency protocols demonstrates a
professional approach to the identification of, and preparation for, the risks associated with the adventure activities.
Not having this documentation is an indication to the insurer of a lack of planning. The following documents
are required by operators in the COTA Insurance Program.
 i.    Trip or activity plan
       Trip plans are intended to demonstrate diligence in the planning of trips or activities. Plans may be written
       for individual trip itineraries or for activities. For example, one business may find it more appropriate
       to demonstrate its planning process by writing pre-plans for each trip undertaken, while a different
       business may find it more appropriate to write pre-plans for each activity (that is, sport such as canoeing
       or skiing). Either may be suitable. Such a plan also outlines the trip— or activity—specific emergency
       response actions that will be taken if required. For a list of the suggested trip or activity plan contents,
       see the appendixes.
 ii.   Risk management plan
       A risk management plan is a document intended to demonstrate diligence in the development of appropriate
       business risk management policies and procedures. It is a standard document that explains corporate
       philosophy and operating guidelines. It identifies hazards to the business and outlines strategies for dealing
       with them. The contents of this COTA Insurance and Risk Management Program Handbook prescribe
       many of the actions a business insured by this program must undertake. Furthermore, the content of
       this handbook replaces much of what would normally be found in a risk management plan. For a suggested
       list of risk management plan contents to accompany this handbook, see the appendixes.
 iii. Emergency protocols for guides
       Emergency protocols are intended to demonstrate diligence by providing written directives to guides
       about how they should respond in the event of an emergency. For example, guides require knowledge
       about acceptable actions in the event of a minor or major incident, they should carry emergency contact
       numbers, and they should have forms readily available for incident logs and first-aid treatment records. For
       a suggested emergency protocol format, see the suggested list of contents found in the appendixes.
 iv.   Safety talk outline
       Diligence must be undertaken to demonstrate that all participants of an activity have been adequately
       informed of how to undertake the activity, the responsibilities of participants, the safety and response
       techniques used by the business, and the risks inherent in the activity. Safety talks must be provided



HANDBOOK                                                                                                                   7
          clearly, and often, to ensure participants are informed. For a safety talk outline, see the suggested list
          of contents found in the appendixes.
B) LOSS CONTROL PROGRAM
A loss control program includes risk management activities implemented to reduce the frequency and severity
of losses. It is a program designed to minimize accidents and reduce financial losses. An application to the
COTA Insurance Program must indicate the actions taken in each of the following five loss control areas.
These areas are:
i. Exposure avoidance (not engaging in an activity)
ii. Loss prevention (actions that reduce the frequency of accidents)
iii. Loss reduction (actions that reduce the severity of accidents)
iv. Loss segregation (actions that segregate exposure units)
v. Non-insurance transfer of risk (actions intended to share risk with others)
For a loss control program outline, see the suggested list of contents found in the appendixes.

C) OPERATING GUIDELINES
It is important for adventure businesses to adopt and adhere to an operational standard. This includes the
adoption of “normal industry operating procedures.” The activity specific guidelines that are acceptable to
the insurers can be accessed, downloaded and printed from the www.adventureinsurance.ca website.
More activities will be added to this program as guidelines are accepted by the COTA Insurance Program’s risk managers.

D) WAIVERS
A comprehensive exclusion of liability program using a properly drafted release of liability, or waiver, is a critical
component of any applicant’s risk management program. It is unlikely than any application for insurance by
an adventure tourism operator will be approved unless such a program is in place. This program should
include an effective method of presenting the program to the guest. Please refer to Appendix 6, Guidelines
for Implementation of Release of Liability Program, for more on this subject. Sample waivers are available on
the www.adventureinsurance.ca website.

E) POST—INCIDENT ACTIONS
The action taken by a business after an accident is very important to an insurer’s determining how to respond
appropriately to the event. A timely and professional response to the incident, along with adequate
documentation and record keeping, are crucial to the insurer. Depending upon the incident, the insurer may
involve its risk management consultant, insurance adjustor, or attorney to assist with post-incident intervention.
The following post-incident actions are required of insured businesses of the COTA Insurance Program:
i.    Incidents that require minor first aid treatment are to be recorded and records kept at the business office.
ii.   Incidents that require evacuation are to be reported to the insurer immediately.
iii. Incidents that require the assistance of external agencies for response or evacuation, and fatal incidents,
     are to be reported to the insurer immediately.
iv. On-site guiding staff must record, in writing (and with photographs or film, if appropriate), the
    following actions:
      •    First aid and drug treatment provided
      •    Log book, including times, of actions taken and who undertook them
      •    Photographs of the site and response efforts
v.    The business office must gather all records of the trip including participant applications, correspondence,
      trip plans, safety talks, signed waivers, and incident report forms.

F) RECORD KEEPING
Record keeping is a crucial element in defending claims. In the case of returning participants, records of par-
ticipation on earlier trips (sometimes years earlier) are helpful. The following records should be kept for at



8                                                    COTA INSURANCE AND RISK MANAGEMENT PROGRAM
least 10 years by a business.
 • Trip plans
 • Risk management plans (including historic versions)
 • Guide protocols (including historic versions)
 • Safety talk outlines
 • Guide field books
 • First aid treatment reports
 • Participant applications and correspondence
 • Signed waivers

G) AUDITS
Insurance coverage provided is based upon the information provided by the business applicant. Audits are a
way of ensuring the accuracy of this information. It is the intent of the insurers of the COTA Insurance
Program that audits of selected businesses’ operations may be undertaken to verify the information contained
in an application. There is no cost to the insured business for this service. Material non-disclosure or misrep-
resentation of the risk may serve as a basis for denial or cancellation of coverage by the insurer in the event
of a claim. Therefore, it is important for the information in an application for insurance to be accurate, and
for any changes to business operations to be reported to the insurer.


3. Operational guidelines
Operational guidelines have been developed for the activities listed below. The guidelines are available on the
www.adventureinsurance.ca website. These guidelines closely represent what could be considered normal industry
operating standards for these activities. Variances above or below these guidelines may affect insurance
premiums. Guidelines for additional sports may be added in the future.
1. Ski touring (being different from heli-skiing)
2. Sea kayaking
3. Whitewater kayaking
4. Rafting
5. Bicycle touring
6. Mountain biking
7. Caving
8. Day hiking
9. Backpacking
10. Canoeing
11. Snowmobiling
12. Nature viewing
13. Top-rope rock climbing/rappelling
14. Rock climbing (being different from top-rope rock climbing)
15. Mountaineering (being the same as Alpine Climbing)




HANDBOOK                                                                                                       9
APPENDIXES
The following appendixes provide suggested tables of contents with narrative notes to assist businesses in the devel-
opment of risk management documentation as well as sample forms that may be adapted by a business for its use.
These include:
1. Trip or activity plan
2. Guide protocols
3. Safety talk outline
4. Loss control program
5. Incident Report Form
6. Guidelines for Implementation of Exclusion of Liability Program


1. TRIP PLAN
The following is an outline for a trip or activity plan. This can be adapted as required for an individual business.

A) TRIP OR ACTIVITY DESCRIPTION
This section of the plan should include a description of the trip or activity, identify its location, and provide
a short narrative of the activity.

B) ITINERARY
This section of the plan should include a description of the trip itinerary or approved activity locations, identify
evacuation methods, and analyze the terrain.

C) SUITABILITY OF CLIENTELE
This section of the plan is to provide a description of the type of clientele suitable for the trip. This should
include age, sex, fitness requirements, experience levels, prior training required, etc. The intent is to demonstrate
an appropriate trip—clientele match.

D) LOGISTICS
This section of the plan should outline logistical considerations including transportation, personal and group
equipment requirements, communication checks for staff in isolated work sites, and any special demands on
program support services.

E) TRIP APPROVAL
This section is to identify who approved the trip, that person’s title, and the date the approval was given.

F) TRIP OR ACTIVITY POLICIES
Any trip—specific policies should be consistent with the COTA Insurance Program Handbook and the business’s
risk management plan. For example, driving policies may be found in the risk management plan and instructor
to student ratios will be found in the operational guidelines of the COTA Risk Management Program. Trip or
activity policies may include things like rules for isolated river trips, the use of firearms in bear country, etc.




10                                                  COTA INSURANCE AND RISK MANAGEMENT PROGRAM
G) HAZARD IDENTIFICATION AND RISK ANALYSIS
Specific to a trip or activity, the hazard analysis should identify the things both human—caused and natural
which could pose a threat to the people (including clientele and staff), and property on the trip. Answer the
following questions:
What are the hazards in this activity or trip?
How likely is an incident to occur?

H) LOSS CONTROLS
Loss controls include those risk management actions that are taken to reduce the frequency and severity of
losses for the hazards identified in the preceding section. Answer the following question:
What can I do to avoid, prevent, or reduce the impact of the hazard by applying the following strategies?
 • Exposure avoidance (not engaging in an activity)
 • Loss prevention (actions that reduce the frequency of accidents)
 • Loss reduction (actions that reduce the severity of accidents)
 • Loss segregation (actions that segregate exposure units in order to prevent or reduce loss)
 • Non-insurance transfer of risk (actions intended to share risk with others)

I) EMERGENCY CONTACTS
A list of telephone numbers and radio frequencies of internal and external resources should be compiled and
maintained. This should be readily available at the program office and instructors in the field should carry
any numbers that may be needed.


2. GUIDE PROTOCOLS
The following is a sample protocol intended to provide directions for guides in the field on how they should
respond to emergencies and to provide direction to them regarding their financial authority in an emergency.
Businesses may change this format to suit their specific needs.

A) INCIDENT RESPONSE TYPES
While it is the intent of the program that emergencies be responded to in as self-contained a manner as pos-
sible, it is recognized that there may be instances where outside assistance is required.
 i.    Type 1 Response
       It is anticipated that most injury evacuation will be Type 1. This is an accident where the instructor
       and guests on the scene will be able to facilitate both first aid treatment and evacuation with person-
       nel and materials that are with the group. The response is self-contained.
 ii.   Type 2 Response
       This is an accident which requires the assistance of additional personnel, and may include a
       helicopter evacuation.
 iii. Type 3 Response
       This is an accident with complications which requires external assistance (usually the assistance of
       organized responders).
 iv.   Type 4 Response
       This is a fatality.

B) RESPONSE PROTOCOLS
TYPE 1 incidents should be reported to the insurer immediately.
TYPE 2 incidents may require either additional personnel and/or helicopter assistance to evacuate the patient.
Additional personnel may include other guides, clients, or recreationists in the vicinity. In this type of incident,




HANDBOOK                                                                                                          11
it is anticipated that the lead guide will oversee first-aid treatment prior to evacuation. If a land—based evacua-
tion is not suitable and air evacuation is required, on-scene guides may authorize an air evacuation.
This type of incident should be reported to the insurer immediately.
TYPE 3 incidents may require organized rescue responders to affect the evacuation or rescue. These responders
might include personnel such as National Park Service Wardens, Kananaskis Country Rangers, Department of
National Defence, or the BC Provincial Emergency Program SAR volunteers. On—scene guides may authorize
the initiation of such services if deemed necessary.
This type of incident should be reported to the insurer immediately.
TYPE 4 incidents should be reported to the closest RCMP detachment and the operations manager at the earliest
possible time. The patient should not be moved from the accident site until authorized by the coroner or RCMP.
The insurer must be notified immediately.

C) COMMUNICATIONS
Guides should attempt to communicate with the business about emergencies by secure landline means.
Caution must be exercised when communicating about emergencies when using non-secure communication
means such as mobile radios, cellular phones, VHF or UHF radios.
When attempting to communicate with the business regarding emergency situations, guides should contact,
in the following order, one of:
 • Business’s operations manager
 • Other senior business staff
 • Business’s public relations director
Clients should not be required to communicate with the business regarding emergency situations. This is the
domain of the guide.

D) MEDIA AND PUBLIC INTERVIEWS
Guides are expected to not give interviews or other information to either members of the media, the general
public, or the patient's family until such time as permission is given by the business. The business should provide
a liason person with the responsibility to provide information regarding the incident to the media, public and
family. This should be done in conjunction with the on-scene guide and the insurer’s risk manager, adjustor,
or legal counsel.


 CONTACT PERSON AND PHONE NUMBERS                           Work                  Home                Cellular
 Operations manager
 Senior staff
 Business public relations staff
 Local police authority
 Local SAR group
 Ambulance Service Air Dispatch
 Local helicopter company
 Local guiding businesses
 WCB (for reporting serious accidents to staff)




12                                                 COTA INSURANCE AND RISK MANAGEMENT PROGRAM
3. SAFETY TALKS
Diligence must be undertaken to demonstrate that all participants of an activity have been adequately informed
of how to undertake the activity, their responsibilities, the safety and response techniques used by the business, and
the risks inherent in the activity. Safety talks must be provided clearly, and often, to ensure participants are informed.
The following provides a suggested safety talk outline which may be amended to suit the particular activity.

A) INTRODUCTION
• Introduce yourself and other staff
• Explain to participants the need to listen and think—they share the responsibility for safety

B) TRIP SPECIFICS
 • Introduce the trip (e.g., geographical area, weather forecast)
 • Describe the trip itinerary
 • Describe inherent dangers (e.g., cold water, falling, hypothermia, and other environmental conditions)
 • Explain what to do in case of an emergency (e.g., if someone falls in the water, if someone gets lost)

C) ASSESS THE PARTICIPANT
  • Fitness
 • Experience and background
 • Skills

D) PARTICIPANTS’ RESPONSIBILITIES
 • Explain the level of physical involvement
 • Ask participants to identify any medical or physical conditions they have that might be affected by the
   trip’s activities
 • Explain that NO alcohol or drugs are to be taken before or during the activity
 • Explain the responsibility of participants to apply care and attention
 • Ask participants to notify guides if they observe any problems with the equipment and to report any
   incidents or accidents

E) MEDICAL INFORMATION
  • Who is on medications
 • Medical conditions

F) FOOD
  • Explain menu
 • Determine food allergies

G) EXPECTATIONS OF THE COMPANY AND GUIDE
 • Tone setting
 • Behaviour expectations

H) WAIVER
 • Delivery of the waiver if this has not been done previously

I) PARTICIPANT’S CLOTHING AND EQUIPMENT
  • Assess participant’s clothing and equipment
 • Describe what is appropriate
 • Recommendations



HANDBOOK                                                                                                                 13
J) GROUP EQUIPMENT
  • Demonstrate proper use of equipment
 • Limitations
 • Hazards
 • Practice session if required

K) TERRAIN AND ACTIVITIES
 • Introduce the terrain
 • Describe hazards
 • Explain how to avoid the hazards
 • Teach commands required

L) EMERGENCY PROCEDURES AND FIRST AID
  • Explain what to do if something happens
 • Who does what
 • How to use the radio & telephone
 • Where the first aid kit and response supplies are
 • Evacuation procedures
 • Worst—case scenarios
 • What to do if a guide is injured

M) CLOSING
 • Tell the group to ask if something is not clear
 • Answer questions


4. LOSS CONTROL PROGRAM
A loss control program includes risk management activities that are implemented to reduce the frequency and
severity of losses. It is a program designed to minimize accidents and reduce financial losses. An application
to the COTA Insurance Program must indicate the actions taken in each of the five loss control areas.

1. EXPOSURE AVOIDANCE (NOT ENGAGING IN AN ACTIVITY)
Decisions made not to undertake specific activities or program in certain locations. For example, not rafting on
Grade 4 or above water, portaging around specific levels of rapids rather than running them, banning an activity
such as cliff jumping from canoe trips, or banning certain slopes from skiing in defined snow conditions
would all fall into this category.

2. LOSS PREVENTION (ACTIONS THAT REDUCE THE FREQUENCY OF ACCIDENTS)
Decisions made to reduce the frequency of involvement. For example, only permitting drivers with a higher
level of driver training to drive business vehicles should reduce the frequency of vehicle accidents would fall
into this category.

3. LOSS REDUCTION (ACTIONS THAT REDUCE THE SEVERITY OF ACCIDENTS)
Decisions made to reduce the potential severity of an accident. For example, having one person at a time
cross an avalanche slope rather than allowing the whole group to cross at the same time, or having one
kayak at a time enter a rapid would fall into this category.




14                                               COTA INSURANCE AND RISK MANAGEMENT PROGRAM
4. LOSS SEGREGATION (ACTIONS THAT SEGREGATE EXPOSURE UNITS TO REDUCE THE FREQUENCY OR
   SEVERITY OF LOSSES)
Decisions made to segregate units of exposure. For example, assigning responsibilities and duties that will help
reduce the risk of erroneous and inappropriate actions, such as ensuring lead guide supervision, sharing the
planning, approval, and action functions among employees, such as guiding teams, or implementing daily
guide meetings to spread decision—making responsibility would fall into this category.

5. NON-INSURANCE TRANSFER OF RISK (ACTIONS INTENDED TO SHARE RISK WITH OTHERS)
Decisions made to share the level of risk in an activity with other parties is known as risk transfer. This is
normally done through different forms of contract. For example, leasing equipment or vehicles shares potential
losses with vehicle rental companies, and having clients sign waivers communicates which risks are inherent
in the activity and shared by the client.


5. INCIDENT REPORT FORM SAMPLE
The following is an example of an incident report form that can be used to provide information about incidents
to the insurer. This form may be modified as long as suitable incident information is gathered and kept.




HANDBOOK                                                                                                      15
                 INCIDENT REPORT FORM SAMPLE                            Date of Incident
                                                                                                 Day/ Month/Year


                 Company Name
                 Activity                                                    Business
      OPERATOR




                 Address                                                     Mobile
                                                                             Fax
                                                                             Email
                 Person
                                                                             Date report
                 completing
                                                                             completed
                 Report                                                                        Day/Month/Year


                 Name
                                                                                        Male                    Female
INJURED
 PARTY




                 Address                                                                Business
                                                                                        Mobile
                 Date of Birth                                                          Residence
                                  Day/Month/Year              Age

                 Objective description of incident
      INCIDENT




                                                                                                           Attach additional page if needed


                 Injury, Signs and Symptoms                         Treatment
FIRST AID
 INJURY




                 Name                                               Business
                 Address                                            Residence
      WITNESS




                                                                    Mobile

                 Name                                               Business
                 Address                                            Residence
                                                                    Mobile

                   Witness statements
INVESTIGATION




                   Photographs of incident site                        IMMEDIATELY TELEPHONE, FAX OR EMAIL
                                                                           THIS REPORT TO THE BROKER
   INCIDENT




                   Diagram of incident site
                                                                               tel:     866-889-4762 EXT.22
                   Notify RCMP – serious injury or fatality                    fax:     514-394-1180
                                                                               email:
                    Notify Workers Compensation – employee
                                                                               info@adventureinsurance.ca
                 only
6. WAVER FORMS
The following are guidelines for the implementation of waiver or release of liability forms.




HANDBOOK                                                                                       17
                                                          COTA Insurance and Risk Management Program



1. GUIDELINES FOR THE IMPLEMENTATION OF WAIVER OR
   RELEASE OF LIABILITY

         COUNCIL OF TOURISM ASSOCIATIONS OF BRITISH COLUMBIA

GUIDELINES FOR IMPLEMENTATION OF WAIVER OR RELEASE OF LIABILITY
         PROGRAMS FOR ADVENTURE TOURISM OPERATOR1

    ____________________________________________________________

                                                                                  Robert B. Kennedy

                                                                                  Barrister & Solicitor

                                                           Farris, Vaughan, Wills & Murphy LLP

                                                                      Vancouver, British Columbia

                                                                                            March 2005



INTRODUCTION

As we are all aware, adventure tourism operations can involve a variety of risks,
dangers and hazards, including risks that are inherent in the sport or activity itself.
Inherent risks can be managed, but cannot be altogether eliminated, without
fundamentally changing the sport or activity.

Most adventure tourism operators will have at least some involvement in terms of
supervision, guiding, education or control over guests. This supervisory function
involves the exercise of discretion, judgment, and decision making, which in
retrospect and after an accident has occurred, may be viewed to have been in error.
A suggestion of error on the part of the operator may serve as the basis for a liability
claim brought on behalf of the guest. The purpose of this section of the handbook,
is to directly address the risk of civil liability claims brought against adventure tourism
operators and to clarify the responsibilities as between the operator and the guest in
respect of injuries or accidents involving guests participating in adventure tourism
activities.

The principal purpose of civil litigation in the personal injury context, is to award
monetary damages to persons who have suffered injury or loss as a result of the
negligence or breach of contract of someone else. The party advancing the claim
(usually the injured person, or in the case of a fatal injury claim, the next-of-kin) is


1
The guidelines are intended for operators based in the common law jurisdictions of Canada, which are all
     provinces and territories with the exception of Quebec
referred to as the plaintiff. The party being sued (in the context of this discussion,
usually the adventure tourism operator) is referred to as the defendant.

A monetary award (referred to as “damages”) is assessed by the court in order to
compensate the plaintiff, to the extent that money can compensate, for the injury or
loss sustained by the plaintiff as a result of the negligence or breach of contract of
the defendant. The heart of the system is therefore monetary compensation paid to
persons who have sustained loss. A secondary function of the civil litigation system
in the personal injury context, is to discourage conduct which may result in harm to
others. This secondary goal however may have less relevance in the context of
adventure tourism, where the risk of injury is in many cases, inseparable from the
sport or activity itself.

As a method of awarding compensation to injured persons, civil litigation is viewed
by many as an inexact, blunt, time-consuming, expensive, and often unsatisfactory
process. In order to succeed, the plaintiff must prove negligence or breach of
contract on the part of the defendant. Except in the clearest of cases, this may
prove to be an extremely complex and expensive process. A four-year time span
from the initial injury to a resolution at the trial level in court is not uncommon.
Appeals taken from a trial decision may lengthen the entire process to in excess of
six years. Throughout the litigation process, there is rarely any certainty as to the
outcome.

An alternative approach to compensation to persons sustaining loss, is through what
is referred to as “first party insurance coverage” or in other words, compensation
based on a contract directly between the injured person and an insurance company.
Life insurance, health insurance, travel insurance, disability insurance, income
replacement policies, and accident benefit policies, are all examples of “first party
insurance coverage”. Under a first party insurance program, the insurer is
contractually obligated to compensate the person suffering the injury, in accordance
with the policy terms. There is no need to prove negligence on the part of an
alleged wrongdoer. In most cases, first party insurance claims are handled without
the need to retain legal counsel. Under a first party insurance coverage system,
guests may determine what level of compensation they require in the event of an
accident or injury, based on their individual circumstances. For example, a guest
with a non-working spouse and dependent children, may place considerable higher
value on comprehensive life insurance, than would a guest without dependants.
Many guests will already have arranged their first party insurance affairs to provide
for an adequate level of compensation in the event of accident, death or disability.
Some guests will have access to comprehensive medical insurance programs.
Other guests without such benefits, may supplement their coverage through, for
example, short-term travel insurance policies.

The principle behind the adventure tourism program is to encourage adventure
tourism guests to make their own arrangements for compensation in the event of
accident, death or disability, through first party insurance coverage, rather than look
to the adventure tourism operator for compensation, through a civil claim based in
negligence or breach of contract. As mentioned, the first party insurance approach
is direct, efficient, and can be custom tailored to the needs of the individual guest.
The avoidance of third part liability claims against the adventure tourism operator
permits the operator to offer its services as a reasonable rate, or in some instances,
considering an increasingly tight insurance market, to continue to offer its services to
the public at all.

A waiver or release of liability is the mechanism by which this understanding
between the adventure tourism operator and the guest is formalized. The balance
of this section of the handbook will deal with suggestions for implementing of an
effective release of liability program.



RELEASE OF LIABILITY AND WAIVER DEFINED

In the adventure tourism context, a release of liability or waiver is a contractual
agreement between the tourism operator and the guest, whereby the guest agrees
to release the operator from liability in the event the guest is involved in an accident
or is injured. The terms “release of liability” and “waiver” are frequently used
interchangeably. In these guidelines, the term “waiver” will be used for simplicity,
with the understanding that it also includes a release of liability.

Although a waiver may take the form an oral agreement between the parties, or
conditions printed on a ticket, most frequently a waiver takes the form of a written
contract signed by the guest. General principles of contract law apply to the
interpretation and application of waivers, the foremost amongst which is the doctrine
of strict construction.

Under this principle of law, a contract will be strictly construed or interpreted against
the party drafting, relying upon, or putting forward the contract, which in our case, is
almost invariably the adventure tourism operator. It is for this reason that operators
are encouraged to pay close attention to details when designing and implementing
their waiver programs.



VOLUNTARY ASSUMPTION OF RISK

Most operators will have some familiarity with the concept of assumption of risk in
the context of adventure tourism activities. We all know that sports such as
backcountry skiing, river rafting, canoeing and kayaking involve some degree of
inherent risk. Injuries, and in the rare case, fatalities may occur and are viewed by
all participants to be inherent risks of the sport. Most participants in these activities
are aware of the risks involved and willingly accept and assume those risks as a fair
exchange for the benefit of participating in these sorts of activities. It is important
from the point of view of good public relations as well as the enforceability of the
waiver program, for a guest to be reasonably well informed of the risks involved in
any particular adventure tourism activity. That being said however, the legal
defence of “voluntary assumption of risk” is not all that well developed in Canada, as
compared to other jurisdictions, such as the United States. Without getting unduly
technical, an adventure tourism operator may have little scope for defending a
negligence claim based solely on the argument that the guest “assumed the risk of
injury” inherent in the activity. Invariably, the courts will require a much stronger
defence: either clear evidence of no negligence on the part of the operator, or
alternatively, a binding contractual waiver or release of liability.

It is for this reason that risk statements signed by guests in which the guest
acknowledges the risk inherent in the activity, and agrees to assume the risk, are
frequently of little force or effect under Canadian law. You will see statements
dealing with assumption of risks in the sample waivers that have been provided
under this program. These assumption of risk statements are useful in terms of
providing a contextual background for the exclusion of liability language that follows.
The assumption of risk language however in and of itself, has little force or effect in a
court of law in Canada, without the accompanying agreement dealing with exclusion
of liability, waiver or release of liability.



ELEMENTS OF A WAIVER

As mentioned, a waiver or release of liability is a legal contract between two parties
– in our case, the adventure tourism operator and the guest. Under the doctrine of
strict construction referred to earlier, the courts will strictly construe or interpret any
vagueness, ambiguity or errors in the waiver against the tourism operator and in
favour of the guest. Moreover, courts in Canada will subject the waiver defence to
reasonably rigorous scrutiny, before agreeing that a claim of negligence or breach of
contract is defeated by a waiver signed by the guest. Legal counsel for the guest
will search long and hard for a means to convince the court that in the particular
circumstance of the case, the waiver should not be enforced against the guest. This
apparent one-sidedness in the legal relations between the adventure tourism
operator and the guest places considerable onus on the part of the operator to
ensure that the waiver meets all of the requirements that the law may impose. The
sample waivers included with the adventure tourism program, illustrate many of
these requirements. It is important for adventure tourism operators to bear in mind,
that there is absolutely no guarantee in any particular case that a court will uphold
and enforce a release of liability as a defence to a claim in negligence or breach of
contract. A waiver program must be viewed as one element, albeit an important
element, in the operator’s comprehensive risk management program. Some
guidelines for the operator to bear in mind when working with its insurance broker or
legal counsel in preparing a waiver program, are as follows.
a)      Naming the Parties to the Waiver
As mentioned, a waiver is a contract between the operator and the guest. It goes
without saying that the name of the guest must be clearly indicated on the contract.
In most cases, this part of the form will be completed by the guest and then
reviewed by the operator.

There is greater scope for error in naming the adventure tourism operator.
Operators that are incorporated, may have both a corporate name and a business
name such as “12345 British Columbia Ltd.”, carrying on business as “High Alpine
Adventure Tours”. The guest will certainly have heard of “High Alpine Adventures”
but is probably unaware of the name of the numbered company. Both the business
name and incorporation name should be included in the section defining the
“releasees”.2

You will note that in the sample waivers, the net is cast fairly widely in terms of who
is encompassed within the definition of “releasees”. The operator will clearly want to
include its employees as parties protected under the waiver. Similarly, protection
should be extended to all other parties who may be the target of a claim by the
guest, who in turn could then bring the operator back into the litigation by way of
third party proceedings.

Some adventure tourism operators who operate on crown land or within provincial or
national parks, may be obligated by contract with the province or federal
government, to include the Crown as a releasee on waivers to be signed by guests.
The same situation may apply in respect of municipalities, regional districts, private
landowners, etc, on which the adventure tourism activities may take place.

The process of correctly and comprehensively naming the “releasees” on the
waiver, is an important step in the preparation of a waiver program. This part of the
document should be given careful thought, and ideally, input will be obtained from
the adventure tourism operator’s insurance broker or local legal counsel.


b)      Defining the Activity
In each of the sample waivers, there is an attempt to define the activity which is the
subject of the contractual exclusion of liability. Most adventure tourism activities are
somewhat multi-faceted. For example, a backcountry ski tour operator will likely
provide some form of mountain guiding service. While this may seem like a fairly
obvious component of “backcountry skiing”, what about transportation to the
trailhead, or helicopter travel to the lodge? While skiing down a glacier may seem
like an obvious part of “backcountry ski touring”, what about hiking through the forest


2
“Releasees” refers to those parties receiving the protection of the waiver or release of liability, including
     the tourism operator, its employees, independent contractors, and other parties, businesses or
     companies who are named on the waiver and who are seeking protection under the waiver.
on bad weather days? Is this part of “backcountry skiing” and therefor subject to the
waiver? What if the guest slips, falls and is injured on ice on a walkway outside of
the lodge, or is bitten by the lead guide’s dog? Are these incidents also covered by
the waiver? If a guest suffers an allergic reaction to a peanut-based product
inadvertently included in the menu, is this part of “backcountry skiing” and may the
operator rely upon the waiver as a defence to a claim for negligent food preparation?
All of these questions essentially deal with contractual interpretation. The adventure
tourism operator will need to give some thought to the scope of the activities that
may give rise to civil liability claims, and consider whether the definition of the
activities in the waiver is sufficiently broad to encompass those claims. In a recent
case in British Columbia, the court held that a waiver in respect of “participation in a
race” was not sufficiently broad in scope to encompass injuries arising from a
practice or warm-up session preliminary to the race. This is an example of bad
drafting and no doubt took the operator of the event by surprise.

Consultation with and input from the adventure tourism operator’s insurance broker
or legal counsel will be of assistance in drafting this section of the document.


c)     Assumption of Risks
Each of the sample waivers contains a section dealing with “Assumption of Risks”.
The language in these sections of the sample waivers varies from activity to activity.
In all cases, the assumption of risk section provides only the barest outline of some
of the risks the guest is likely to encounter during the activity. Operators may wish to
expand upon this section, again with input from their insurance and legal
consultants, in order to give the guest a better understanding of the risks, dangers
and hazards that may be encountered during the course of the activity. As an
alternative, the operator may wish to refer the guest to other sources of information
such as brochures or websites in which these risks are more fully explained. In all
cases however, the guest should be given a realistic appraisal of the risks to be
encountered. For example, backcountry skiing and snowboarding involves the risk
of being killed an avalanche. The guest should be told of this.

You will note that in all of the sample waivers, one risk that is always referred to is
the risk that the guest may become involved in an accident or be injured as a result
of negligence on the part of the operator or its staff. As referred to earlier, there will
often be an element, and sometimes a very large element, of supervision and
control of the guest by the operator during the adventure tourism activity. The
exercise of supervision and control by the operator sometimes involves the minute
to minute exercise of discretion, judgment and decision making. On occasion, the
decision making may appear in retrospect to have been wrong. Some may view this
as negligence on the part of the operator or its staff. The waiver however explains
that this is yet another risk that the guest must understand and accept before
participating. Bear in mind, that a lawsuit is not based on the fact that the guest is
injured and requires compensation. Rather, the basis of a civil liability claim is that
the operator is alleged to have breached its duty of care to the guest through either
negligence or breach of contract. If the waiver does not encompass these claims
and protect the operator from allegations of negligence or breach of contract, it is of
little value as a method of risk management.


d)     Release of Liability and Waiver of Claims
You will note that the language in the sample waivers under the heading “Release of
Liability, Waiver of Claims and Indemnity Agreement” is uniform. This language has
been tested in court and has been found to be effective in terms of establishing an
exclusion of liability defence in the face of allegations of negligence on the part of
the operator. An adventure tourism operator will likely not wish to depart markedly
from this language, without the benefit of legal advice.


e)     Choice of Law/Forum Selection
Paragraph 4 of the release of liability section of the waiver stipulates that the waiver
will be governed by and interpreted in accordance with the laws of the province
where the activity takes place. This is referred to as a “choice of law” provision. The
sample form of the waiver may be amended by the operator to specifically name the
province involved, for example as follows:

       “This Release Agreement and any right, duties and obligations as between the
       parties to this Release Agreement shall be governed by and interpreted solely in
       accordance with the laws of the Province of British Columbia, and no other
       jurisdiction;”

The law in Canada, outside of Quebec, in respect of the enforceability of a waiver, is
reasonably uniform. The choice of law provision in the waiver may not be all that
important within the Canadian context. A more serious issue may arise however,
when dealing with guests from other countries who may, for example, have booked
an adventure program online through the operator’s website. Questions may then
arise as to what law governs: the law of the province where the activity takes place,
or the law of the country where the guest resided at the time the contract was
entered into (and which incidentally may be less favourable to the waiver defence
than Canadian law). The choice of law provision attempts to resolve this issue.

A related issue is dealt with in paragraph 5. Guests from other provinces or other
countries may prefer to return home and advance a claim against the operator from
their home jurisdiction, where they are more familiar with the legal system, and enjoy
a “home field advantage”. Defending a claim in a foreign jurisdiction can proof to be
a very significant logistical handicap to the operator. Paragraph 5 stipulates that the
parties agree that any litigation between the parties shall be advanced in the
province where the activity takes place. Although this provision is not necessarily
binding on the court of the foreign jurisdiction, in most situations a contractual
agreement between the parties as to the jurisdiction in which future litigation battles
shall be fought, is usually given considerable weight. This provision will assist your
legal defence counsel in the foreign jurisdiction to have an action stayed in that
jurisdiction, forcing the plaintiff to litigate in the operator’s home province. Once
again, paragraph 5 can be redrafted to specifically name the province in which the
adventure tourism activities will take place.


f)     Waiver Format
In many situations, the operator is under a legal obligation to draw the terms and
conditions of a waiver to the attention of the guest. The sample waivers employ
various techniques in terms of headings, bold print, signature boxes, one page
format, and coloured highlighting to assist the operator in drawing the terms of the
waiver to the attention of the guest. Although the sample waivers contain many
words, which may require three or four minutes of the guest’s time to fully review,
the heading at the top of the form, in bold print with yellow highlighting, clearly
emphasizes the general nature of the document, and should serve to communicate
in no uncertain terms, that the guest’s legal right to claim compensation is effected
by signing the waiver and that the document should be read carefully.

Although there is no legal obligation to adopt any particular format for the waiver, the
suggested format in the sample waivers has proved effective in court and is
recommended to adventure tourism operators. Once again, it is recommended that
significant changes in the format only be adopted after consultation with your
insurance broker or legal counsel.



MANAGING THE WAIVER PROGRAM

Once the form and content of the waiver has been chosen, the adventure tourism
operator must next design a program whereby the operator obtains an effective
signature on the waiver from each guest. The scope of business practices of
adventure tourism operators varies quite considerably. Some operators do business
from a store front location, where guests walk in off the street, having given only a
few minutes’ thought to participating in the activity in question. In other businesses,
guests will have booked a reservation a year in advance, with considerable
exchange of verbal and written communication between the operator and guest
leading up to the activity. Different business practices will necessitate different
approaches to how a waiver program is implemented. The following general
comments however will be of interest of all operators.


a)     Advance Notice of Requirement to Sign the Waiver
Where possible, the operator should communicate to guests and potential guests
advance notice that they will be required to sign a waiver before engaging in the
activity. For guests who walk in off the street, this may not be possible. For guests
who learn of the activity through the operator’s website, brochures or other
advertising, there is far greater scope for communicating the requirement to sign a
waiver. Communicating to the guest in advance the requirement to sign a waiver,
provides another layer of evidence available to the operator to establish that the
guests knowingly and voluntarily agreed to the terms and conditions of the waiver.
Brochures, letters of confirmation, emails, posters, and other forms of
communication to guests and potential guest are all good opportunities to
communicate the terms of the adventure activity, including the requirement that all
guest are required to sign a waiver.


b)     Misrepresentation
One of the principles of contract law directly applicable to a discussion on waivers, is
that a contract entered into by one party as a result of the innocent or negligent
misrepresentation of another, is subject to being set aside by the court.
Misrepresentation can take many forms, not all of which will be readily apparent to
the operator. Consider, for example, the following statement made on an operator’s
website:

       “We have an unblemished safety record and employ the highest qualified
       guides in the industry”

This is comforting language and will appeal to prospective guests. What is the result
however if on a previous occasion, a guest of that operator had been involved in an
accident, although perhaps not seriously injured? What if circumstances obligated
the operator to employ guides of good standing, but not necessarily of the “highest
standing” available in that particular industry? Do these discrepancies constitute
“misrepresentation” on the part of the operator, allowing counsel for the guest to
argue in court that the waiver is therefore unenforceable? These issues should be
carefully considered by the operator in respect of all forms of communications with
either the guest or the public at large in respect of the adventure tourism activity.

The operator or its staff should of course be very careful not to make any statements
to a guest which may be construed as a misrepresentation in respect of the purpose
or effect of the waiver. An off hand comment such as “this is only for insurance
purposes” or “please sign our registration form”, could adversely affect the
enforceability of the waiver, again on the basis of misrepresentation. For those
guests who require a verbal explanation of the waiver, a helpful practice would be to
refer the guest directly to the language in the heading at the top of the form, with the
operator reading directly or paraphrasing from that wording.


c)     Signature of Guests
At some point in the process, the guest will need to sign the waiver. In the sample
waivers, the guest’s signature (which may be illegible) is backed up by the
requirement that the guest complete the name and address section at the top of the
form and print his or her name below the guest’s signature. These extra steps
required in the sample waiver permit defence counsel to argue that the execution of
the document entailed more than a hasty signature of a few seconds duration.
Many operators will structure their waiver program such that a specially trained
employee is assigned to present the waiver to each guest or a group of guests.
That employee will then witness the guest’s signature and sign as witness on the
waiver. This is a good practice, although the circumstances of some operators may
not allow this procedure to be adopted.


d)     Storage
Like all business records, waivers should be stored for not less than seven years.
Operators who are incident-free, may be tempted to discard waivers from previous
years, on the basis that they serve no useful purpose. In a case however where a
guest disputes his or her signature, or refuses to acknowledge that they were aware
of the nature of the waiver at the time of signing, previous waivers signed by that
same guest, either in favour of the defendant operator, or in favour of other
adventure tourism operators, may be of considerable value in assisting defence
counsel to establish that the guest is bound by his or her signature.



AGE OF MAJORITY ISSUES

The age of majority in Canada varies from province to province at between 18 and
19 years of age. Persons under the age of majority are referred to as “minors”.
Under current law, a contract signed by a minor is unenforceable against that
person, regardless of whether the contract is co-signed by a parent or guardian.
Accordingly, an operator does not have the benefit of waiver protection in respect of
guests who are minors at the time the waiver was signed. Some operators have
restricted operations to guests over the age of majority. Other operators have taken
extra care to communicate the inherent risk in the activity to the minor and his or her
parent or guardian. These steps do not however make the waiver enforceable
against the minor.



ROLE OF INDUSTRY ORGANIZATIONS

Industry organizations can play a very important role in assisting the adventure
tourism operator in implementing an effective waiver program. Although operators
will compete for business against other operators in the same sector, it makes good
sense for operators within the same sector to co-operate on risk management
programs, including implementation of waiver programs. Excellent examples of
such co-operation can be found with ski area operators, heli-skiing and snowcat-
skiing operators, river rafting operators and backcountry ski tour operators. Another
advantage of co-operation in these programs is that guests who frequent a number
of different operators will nonetheless be presented with similar if not identical waiver
programs, thus lessening the burden on the operator when presenting the waiver to
a new guest.



FOREIGN LANGUAGE TRANSLATIONS

As mentioned previously, in most circumstances there is an obligation on the part of
the adventure tourism operator to take reasonable steps to draw that terms of the
waiver to the attention of the guest. The comments thus far in this outline have
assumed English language fluency and comprehension on the part of each guest.
Some operators will be faced with the situation where the guest has no
comprehension or imperfect comprehension of the English language. It is unlikely
that a guest who has no reasonable comprehension of the terms of the waiver, will
be bound by the waiver. Several operators in Canada who have a significant
foreign-language speaking clientele, have had their waivers translated into foreign
languages. This is a time consuming and potentially expensive process for
individual operators to undertake. A co-operative arrangement in terms of obtaining
translations for waivers within common industry sectors, will be of great assistance
to individual operators.



MARINE LIABILITY ACT, S.C. 2001, c.6

The Marine Liability Act is federal legislation which came in to force in August 2001.
The intent of the Marine Liability Act was to consolidate into one law existing marine
liability regimes dealing with such matters as carriage of goods, carriage of
passengers and limitation of liability. Although the principal aim of the legislation
was to regulate commercial shipping, the broad scope of the legislation incidentally
encompassed activities not normally associated with shipping, such as adventure
tourism activities which involve commercial carriage of passengers over water.
There are significant limitations on the ability of adventure tourism operators, dealing
with maritime transport of passengers, in relying upon a waiver, release of liability or
a contractual exclusion of liability provision



CONCLUSION

As mentioned at the outset, a civil liability claim for personal injury is primarily
focused on compensating the injured person. There are however other more direct
and less expensive methods of achieving this goal, through first party insurance
coverage. Most guests will accept that adventure tourism activities involve various
risks, dangers and hazards, including the risk that they may be injured through error
on the part of operator or its staff. A well worded waiver or release of liability
formalises this understanding between the operator and guest and permits the
operator to offer its services at a reasonable cost. Further, the realities of the
present-day insurance market are such that few liability insurance operators are
prepared to underwrite adventure tourism risks if the operator has not put in place a
comprehensive release program.

The design and implementation of an effective release program involves a number
of steps and close attention to detail. Adventure tourism operators are encouraged
to seek advice and input from their insurance brokers, legal counsel and industry
organisations when designing their release program.

Although there have been many cases in Canada where releases and waivers have
been upheld in the adventure tourism context, operators must recognize that these
defences are not failsafe, and are no substitute for liability insurance coverage.

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posted:3/21/2011
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