BENCHPRESS | Rock-Paper-Scissors Debts, Napkin Wills & Injured Skiers - LawNow Magazine

BENCHPRESS | Rock-Paper-Scissors Debts, Napkin Wills & Injured Skiers

Rock-Paper-Scissors Debt Cancelled

Primeau c. Hooper, 2020 QCCA 576

Mr. Hooper lost a set of three games of rock-paper-scissors to Mr. Primeau in January 2011. The wager? $517,000 – $258,500 carried over from a previous debt on a quits or doubles bet.

Mr. Hooper signed a mortgage from Mr. Primeau to represent the debt. The mortgage was registered as a second mortgage on Mr. Hooper’s home. Mr. Hooper paid Mr. Primeau ten monthly payments of $1,000 but then stopped. The mortgage was amended to acknowledge the default and the amount owing increased to $553,249.

On February 10, 2015, Mr. Hooper filed a court application asking the court to cancel the mortgage and amending agreement. The trial judge had to decide whether the debt was valid at law, according to Article 2629 of the Civil Code of Quebec. Only two types of gaming and betting contracts are valid:

  1. Contracts expressly authorized by law.
  2. Contracts which relate to lawful exercises and games related solely to the skill of the parties or to the exercise of their bodies AND where the sum involved is not excessive.

The trial judge found paragraph 2 applied to the contract but that both conditions had not been met. The game was one of chance and the amount was excessive – in part because it was the highest ever bet between the parties. The judge decided the contract between the parties was not valid. Mr. Primeau appealed to the Court of Appeal. The Court of Appeal also sided with Mr. Hooper.

McDonald’s Napkin Will is Valid

Gust v Langan, 2020 SKQB 42

After Philip Langan passed away on December 30, 2015, his daughter produced a McDonald’s napkin with his writing on it. She claimed this was his will. The napkin listed seven of Mr. Langan’s children and then said “Split my property evenly”. It was signed by Mr. Langan.

Mr. Langan had eight children – one son died in 2006 and another died in 2015. His surviving children believe Mr. Langan wrote the will sometime between the deaths of his two sons. One daughter challenged the napkin, saying it wasn’t a valid will. The Wills Act of Saskatchewan states that holograph (handwritten) wills are valid wills. However, the Court noted that “holograph wills are [often] drawn so informally that the court is uncertain whether the author of the document intended to create a will.”

The Court based its decision on affidavit evidence given by four of Mr. Langan’s children. The daughter who had the napkin will said her father gave it to her one day and said, “This is my will. I want you to keep this in case something happens.” He signed the napkin in front of her. Another brother was there when this happened. The oldest brother received the napkin will from his sister and gave it to his lawyer. He had dropped his father off at McDonald’s on the day his father allegedly wrote the will. He said his father wrote it because he thought he was having a heart attack. The daughter challenging the will claimed her dad had told her he wasn’t leaving a will because he wanted his kids to fight for it like he had.

The Court found the napkin was a valid will – Mr. Langan had the intention to create a will and the document showed Mr. Langan’s final wishes.

Injured Skier Can Sue Ski Resort

Apps v Grouse Mountain Resorts Ltd, 2020 BCCA 78

Mr. Apps travelled to Canada from Australia just before he turned 20 years old. He wanted to live, work and snowboard at Whistler Mountain. He bought a season’s pass for Whistler, and the next month he got a job in the rental shop there. He considered himself an intermediate snowboarder.

On March 18, 2016, Mr. Apps and three friends decided to go boarding at Grouse Mountain. He bought a lift ticket. The lift ticket and back of the receipt had the usual waivers of liability. But it also said that Grouse Mountain would not be liable for its own negligence, breach of contract or breach of statutory duty of care. Mr. Apps didn’t sign anything.

Mr. Apps entered the Terrain Park. There were two additional signs alerting users to the dangers of the activity. Mr. Apps attempted a jump and was seriously injured. He sued Grouse Mountain for negligence and breach of contract and under the Occupiers Liability Act in the design, construction, maintenance and inspection of the jump.

The trial judge found that Mr. Apps should have known of the exclusion of liability for the mountain’s own negligence, given his experience working at Whistler.

Mr. Apps appealed to the Court of Appeal. The Court had to consider whether:

  • the judge erred in taking into account post-contract notice in determining whether Grouse Mountain had given reasonable notice of the exclusion of liability; and
  • the judge applied the wrong test in dealing with Mr. Apps’ past experience.

The Court found reasonable notice of the exclusion of liability could only be given before or at time of purchase. The exclusion of liability was in tiny print on the receipt and lift ticket and the mountain had not done anything to bring this onerous term to Mr. Apps’ attention. Because of this, there was no basis for the judge relying on Mr. Apps’ experience with snowboarding.

The Court allowed Mr. Apps to continue with his claim against Grouse Mountain.

Authors:

Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.
 


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