Executive Summary: Key Legal and Evidentiary Issues

• A vintage wooden vessel collapsed on the defendant's boatlift, suffering catastrophic damage deemed a total loss at $95,000 insured value

• Enforceability of a signed waiver and release document was the central defence, with disputed timing of the plaintiff's signature

• Spoliation was alleged due to RVYC's failure to preserve video footage of the boatlift events, but the court found no intentional destruction of evidence

• Plaintiff's expert report (Thody) was ruled inadmissible for multiple breaches of the Supreme Court Civil Rules, leaving no admissible expert evidence on negligence

• Advanced rot in the keel's scarf joint, combined with torsional forces from unevenly balanced fuel tanks, was accepted as the cause of the vessel's collapse

• RVYC's counterclaim for full indemnification under the waiver's covenant was deferred for further written submissions

The facts of the case

In 2021, Sarah Pattison purchased a 40-foot wooden vessel named the "Reel Nauti," built in 1969, which she stored at the Coal Harbour facility of the Royal Vancouver Yacht Club ("RVYC"), where she had been a member for 23 years. On July 16, 2023, she arranged to have the vessel hoisted on the smaller of RVYC's two boatlifts so she could access the wooden hull to perform routine maintenance, including power-washing and re-applying anti-fouling paint. The plaintiff and her employee, Koa Nelson, arrived late for the appointment, but three RVYC employees stayed to assist. The plaintiff backed the vessel into the lift, positioning it above the platform where staff had already placed a row of five keel blocks. The expanding arms on either side of the platform were positioned to provide lateral support. The lift was completed by around 5:00 p.m.
Approximately three-and-a-half hours later, at around 8:29 p.m., while Ms. Pattison stood on the vessel mixing anti-fouling paint, she heard a cracking noise. Concerned, she rushed to the office, where a RVYC staff member was working. Shortly thereafter, the vessel lurched sideways and collapsed on the lift. The keel was pushed upwards into the vessel floor. The vessel was eventually towed to the Reed Point Marina. Insurers deemed it a total loss, as it could not be repaired for less than its $95,000 insured value.

The plaintiff's claims and the defendant's position

Ms. Pattison sued RVYC in negligence, arguing that its staff failed to adequately block the vessel. She argued that they ought to have known the vessel required additional moveable tripod stands known as "jack stands" and additional keel blocks supporting the aft portion of the hull. She also alleged that the staff failed to properly position the boat on the boatlift. RVYC defended on two grounds: first, that a waiver signed by the plaintiff provided a complete defence and the basis for a counterclaim for full indemnification; and second, that it was not liable because it lifted the vessel correctly according to its lifter card, thus meeting the standard of care. RVYC further argued that the cause of the damage was the torsional force created by unevenly balanced fuel tanks, exerted upon the keel's weakened scarf joint, the point at which both parties agreed it ruptured.

The waiver and its timing

RVYC's general practice was to present members with a pre-printed document containing operating instructions and a release clause when using the boatlift facilities. The document included prominent language in capital letters releasing and forever discharging RVYC from all claims for loss or damage, specifically mentioning negligence, and also contained an indemnity covenant. This was the fourth such document Ms. Pattison had signed. The vessel had been lifted or partially lifted twice before in 2022, and the plaintiff's previous vessel had been lifted once in 2021. The document text varied slightly over the years but the main provisions were generally consistent. The parties disputed whether she signed the waiver before or after the lift on July 16, 2023. All three RVYC employees present at the lift — Eoin Cotter, Jawid Qiam, and Luis Gonzales — testified that the plaintiff signed the waiver whilst on the boat in the boatlift, but before it was lifted. This was corroborated by the plaintiff's own employee, Koa Nelson, who stated clearly in his evidence that he saw the plaintiff sign the document given to her whilst she stood on the vessel in the boatlift, before it was lifted, while all three RVYC team members were present. The court found that the plaintiff's recollection was mistaken and that she signed the waiver while on the boat but prior to the lift, while the boat was still in the water, as Mr. Nelson described. The court noted that Mr. Nelson had no reason to fabricate this evidence and his memory was clear.

The spoliation argument

The plaintiff invoked the doctrine of spoliation, arguing that RVYC had allowed video footage from its motion-sensor cameras to be automatically overwritten and that the footage would have supported her position that the waiver was signed after the lift. The RVYC had several motion-sensor video cameras, at least one of which was trained to record the lifter area, and its footage was automatically overwritten in a two-week cycle. The court rejected the spoliation argument on two grounds. First, the acceptance of the evidence of Mr. Nelson, as well as that of the three dock employees, established that the plaintiff signed the waiver before the lift, negating the argument. Second, the plaintiff failed to prove that RVYC deliberately overwrote the video with the intention of suppressing evidence. The Harbour Master, Juan Gonzales, testified that he viewed the video the day following the incident and preserved what he considered to be the important portion: the moment of the vessel's actual collapse on the lift, which was shown at trial. Around July 19, he was asked to preserve video more generally, but by that point, the remaining footage had already been overwritten. The court accepted Mr. Gonzales's explanation and could not draw the inference that in allowing the footage to be overwritten in the normal course, RVYC was intentionally attempting to destroy evidence.

Enforceability of the waiver

The court addressed seven arguments raised by the plaintiff against the enforceability of the waiver and found none convincing. First, the plaintiff argued she did not know she was signing a waiver due to its title. Although the title did not include the words waiver or release, the court found the release language was signalled by a lead-in of all capital letters, making the provision obvious at the centre of the document, and that it specifically mentioned negligence. Second, the plaintiff claimed the document contained "fine print" that made it hard to read, but this was not supported by particular examples, the plaintiff referring vaguely to "numerous deficiencies." Third, the plaintiff argued that some unknown hand changed the date on the document from 2022 to 2023 and that this after-the-fact correction should bar RVYC's reliance on it based on the principle of ex turpi causa. The court found this had no merit, noting that neither party noticed the typographical error at the time, and that an employee seeking to correct it after the fact did not amount to an immoral act. Fourth, the plaintiff argued that the court could draw an inference of non-consent from the fact that she photographed the document after signing, but the court did not find the act of taking a photograph sufficient to support that inference. Fifth, the court rejected the argument that RVYC should have taken further steps to bring the contents to her attention, finding that the plaintiff was aware of the waiver requirement, having signed it on three previous occasions and having signed a Moorage Agreement on June 18, 2021, in which she agreed to be bound by the Mooring Rules that clearly state members using club lifters must sign a release. Sixth, the lack-of-consideration argument was dismissed; the court found that there was a corresponding obligation on the plaintiff's part — in order to be permitted to use the lifter, any RVYC member had to sign a release as stated in the Rules. Seventh, the duress argument failed; the court found that, at most on the plaintiff's evidence, there was some "haggling" and that Mr. Cotter was "whining" when he gave her the release to sign, but that the plaintiff always had a clear choice to have her boat lifted elsewhere.

The negligence analysis

Although the waiver provided a full defence, the court nonetheless briefly addressed the negligence claim. The plaintiff's expert witness, Kelly Thody, a marine surveyor, produced a report that was ruled inadmissible due to multiple breaches of the Supreme Court Civil Rules, including failure to provide the instructions under which he was operating, failure to set out the questions posed to him, failure to provide his file to defence counsel, reliance on a version of events described by the plaintiff directly that was not in evidence, and reliance on a document that set out standards for a different type of boatlift. The court also found that Rule 11-7(6), which permits admission of non-compliant expert evidence, did not assist the plaintiff. The plaintiff's other key witness, Ross Elkin, an insurance adjuster and marine surveyor called as a fact witness, was permitted to give lay opinion evidence on the physical condition of the wood of the hull, but his conclusions about causation and operational standards were excluded as requiring specialized or technical expertise. Critically, Mr. Elkin did not see the vessel until July 19, three days after the collapse and after spray foam had obscured portions of the keel and hull, and debris on the lifter deck had been cleared. Given these determinations, the plaintiff was left with no expert evidence as to any of her three theories of liability.
RVYC led expert evidence from Ryan Leeder, facilities manager at the West Vancouver Yacht Club, who testified that the WVYC has a similar sea lift and that lifting on five keel blocks, or even fewer, without supplemental jack stands, was standard practice on a sea lift such as this. The court accepted this evidence. RVYC also led expert evidence from Amir Erfanian, who concluded in his report that there was advanced rot in the keel's scarf joint, visible even to the untrained eye in photographs taken before the area was coated with spray foam by the salvage team. This rot weakened the structure of the keel, whose scarf joint would normally withstand the stressors of the lift. The torsional forces caused by the imbalanced fuel load were too much for the weakened scarf joint and it gave way. Mr. Erfanian's conclusions were supported by observational evidence including the bending of the scarf joint screws towards the starboard side, screws ripped out of position with wood fibres visible on the threads indicating tearing, and the darkened appearance of the wood at the two ends of the scarf joint. The court accepted these conclusions, noting they were not undermined by the plaintiff's witnesses.

The ruling and outcome

Justice Lawn dismissed the plaintiff's claim. The court held that the waiver signed by Ms. Pattison was effective to bar her claim and provided RVYC with a full defence against her negligence action. Even apart from the waiver, the plaintiff failed to prove negligence, as her expert evidence was inadmissible and the only admissible expert evidence supported RVYC's position that the vessel collapsed due to a rupture at the keel's deteriorated scarf joint, brought on by the torsional pressure caused by the imbalanced load of the two fuel tanks. The Royal Vancouver Yacht Club was the successful party. Rather than seeking ordinary costs, RVYC counterclaimed for substantive indemnification under the waiver's indemnity covenant, arguing it was entitled to recover all loss, damage, and expenses, including legal expenses, incurred in defending the plaintiff's claim. The issue of the counterclaim was deferred for further written submissions, with the defendant to provide submissions within 21 days and the plaintiff to reply within 14 days. No exact indemnification amount was determined in this decision.