Canada: The Efficacy Of Waivers In Sports - Levita v. Alan Crew Et Al

Last Updated: September 22 2015
Article by Sudevi Mukherjee-Gothi

"Wavier of liability agreements" are commonly referred to as waivers. Waivers are intended to protect parties from liability. Waivers are common in sports activities because when participating in sports, there is an understanding that there is a risk in participating.

In Levita v. Alan Crew et al, a 2015 decision of the Ontario Superior Court of Justice, the case, in part, dealt with the issue of the effectiveness of waivers signed while engaged in the play of sports and whether the waiver was a complete defence. In this case, the Plaintiff was involved in an incident on November 20th, 1996, wherein he sustained a fractured right tibia and fibula while playing recreational hockey in a league operated by the Defendant True North Hockey Canada (hereinafter "True North"). The Plaintiff alleged that the Defendant Alan Crew intentionally or recklessly checked him into the boards from behind, in contravention of the rules of play of the league, causing the Plaintiff to fall into the boards. This paper will only address the waiver and release executed by the Plaintiff in favour of the league and why it was upheld. However, it is an interesting sports case, and sports enthusiasts are encouraged to read the entire decision.

In the 2008 decision of Isildar v. Rideau Diving Supply, the test for the criteria required for a waiver to be upheld is outlined:

  1. Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?
  2. What is the scope of the release and is it worded broadly enough to cover the conduct of the defendant?
  3. Whether the waiver should not be enforced because it is unconscionable?

Although Levita does not go in-depth through each criteria, it was found that the waiver signed, was broadly worded, was not ambiguous and that the Plaintiff signed it without bringing any reservations to True North. Therefore, it was enforced.

It was described that True North is a non-contact league. However, it was recognized that "playing hockey carries an inherent risk of injury". True North therefore required every player to execute a waiver. The waiver was clearly worded to identify the various risks involved in playing hockey, which is crucial for a release. Specifically, it stated that the player would waive any and all claims as against "the Arena, the Sponsors, True North Hockey Canada and their directors, officers, employees, agents and representatives and any volunteers..."(the releasees). The release also included a release from next of kin, to hold harmless and indemnify the releasees from any property damage or personal injury. Specifically, it stated:

In consideration of my participation ... I hereby acknowledge that I am aware of the risks and hazards associated with or related to ice hockey. The risks and hazards of ice hockey include, but are not limited to, injuries from:

  • Collisions with the rink boards, hockey nets, and ice;
  • Being struck by hockey sticks and pucks;
  • Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed.

In this case, the Plaintiff alleged that his injury was as a result of being checked into the boards from behind. This play is contemplated in the release language noted above.

Firestone J held that:

Even if True North had been found to be negligent in not providing a safe environment for the play of hockey, the waiver is a complete defence to the claims against it.

Reliance was made on the 2015 decision in Kempf v. Nguyen, 2015 ONCA 114. In Kempf, Wilson D.A. stated that:

The law is clear that a party relying on a waiver has the onus of proving the validity of the document and any ambiguity is resolved against the party who is attempting to rely on it.... If a party is seeking to rely on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered.

In this case, it was found that the waiver was unambiguous and outlined the risks associated with the play of hockey. It was stated that the waiver covered the very claim that was being pursued in this action. Curiously, in this case, the Plaintiff was a lawyer. He argued that no one explained the waiver to him. It was found that this argument was not sufficient to dispose of the waiver's effect. In this case, it was held that

he cannot retrospectively void the waiver's effect by arguing he voluntarily signed something he did not understand or read.

This is further reinforced by the decision in Isildar which held:

It is a general principle of contract law that where a party signs a document which he knows affects his legal rights, the party is bound by the document [save for some exceptions,]

Even though the party may not have read or understood the document."

The action was therefore dismissed. Waivers, when properly drafted, are indeed a complete defence and can be relied upon. It is always useful to review existing waivers to determine if they are reflective of the current caselaw and are intuitive to discuss possible issues of risk specific to the activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Sudevi Mukherjee-Gothi
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