With summer weather here, many of us in Ottawa and across Eastern Ontario are taking part in activities where participants are required to sign a waiver of liability; such as attending organized sports and amusement parks. Many participants who sign a waiver may not be fully aware of the legal consequences of doing so and whether the waiver is even valid and enforceable.
In the context of a personal injury claim for damages, this article will explain what exactly a waiver of liability is and the conditions required for an owner or organizer to be able to rely on a waiver.
What is a waiver of liability?
A waiver of liability is a provision that prevents a person from commencing a lawsuit against the owner or occupier for injuries they might incur by taking part in the activity. Certain businesses and organizers, such as amusement and water parks, skydiving facilities, and schools organizing field trips, often require participants to sign a waiver. The waiver can be a separate agreement or part of another document (such as a membership agreement or a ticket).
When will a waiver be valid and enforceable?
Certain requirements must be met in order for a waiver to be valid and enforceable. The language used in the waiver must explicitly refer to the accident’s circumstances. In order to relieve the party relying on the waiver from claims against it in negligence, the waiver must refer to risks and injuries caused by the party’s negligence. There must also be reasonable notice of the waiver to the person whose rights are being waived.
When will a waiver not be enforceable?
There are times when a waiver will not be enforced by the courts. The courts will look at the wording of the waiver and the conditions under which it was signed in order to determine whether the waiver is valid and enforceable.
One exception is when the person signing it is mistaken regarding the “nature and character” of what they are signing (non est factum).
A waiver will also not be valid where a person’s signature is obtained fraudulently, through misrepresentation, if it is found to be unconscionable or if it is against public policy.
Courts will also look at whether a reasonable person would know whether the person signing the waiver did not intend to agree to waive their rights. As well, if the injury or accident falls outside the scope of the waiver, then the waiver will not apply.
Additionally, there must be reasonable notice of the waiver. The owner or organizer must take reasonable steps to bring the waiver to the attention of the person signing it. The party seeking to rely on the waiver has the onus of showing the court that there was adequate notice.
The Occupiers Liability Act
Under Ontario’s Occupiers’ Liability Act (“OLA”), occupiers have a duty to take reasonable care to ensure that persons entering their premises are reasonably safe. However, section 5 of the OLA allows occupiers to modify, restrict, or limit this duty as long as they take “reasonable steps” to bring this to the attention of the person to whom they owe the duty. The Ontario Court of Appeal has held in Schnarr v. Blue Mountain Resorts Limited that an occupier can rely on a valid waiver despite sections in the Consumer Protection Act which preclude a supplier from procuring a waiver of liability.
Minors and Waivers
Currently, there is no Ontario decision regarding the enforceability of a waiver of liability signed by a minor or a parent or guardian on behalf of a minor. In Wong v. Lok’s Martial Arts Centre Inc., a British Columbia case, the court determined that a contract containing a waiver of liability for a minor was not enforceable due to the provisions of BC’s Infants Act. While Ontario does not have similar legislation, it remains to be seen whether a minor, or their parent, can waive the minor’s rights.
Injured? Consult an Ottawa Personal Injury Lawyer
The law surrounding waivers of liability is a complex and fact-specific area of law. If you have been involved in a personal injury matter as a result of another party’s negligence, but signed a waiver of liability, it is wise to speak to a personal injury lawyer. Your claim for compensation may still be successful, depending on the facts of your case and the wording and circumstances surrounding the waiver. We can be reached: