For those who are managing and implementing activity-based
promotions, requiring participants to sign waivers or releases in
order to manage the risks inherent in the activities is important.
A recent decision of the Ontario Superior Court of Justice
reiterates what you should be looking for and including in your
waivers and releases.
The case of Levita v. Crew and True North Hockey Canada
involved an incident in a non-contact hockey game in which Levita
was checked into the boards and suffered severe injuries. He sued
the other hockey player, Crew, as well as the hockey league, True
North Hockey Canada for the damages he incurred.
Levita had signed a one-page waiver at the beginning of the
season. It was passed around the locker room before the first game
of the season and each player signed his name on the bottom of the
sheet. No representative from the league was available to explain
the terms of the waiver to the players.
The Plaintiff argued that the waiver was not explained to him.
That was not sufficient in the judge's view to dispose of the
waiver's effect. "If he was unclear about the waiver's
meaning, or felt he did not have sufficient time to read the
waiver, it was open to him to take the necessary steps to satisfy
himself that he understood the contents of the document before he
signed it." Based on the facts of this case, the judge ruled
that Levita could not retrospectively void the waiver's effect
by arguing that he voluntarily signed something he did not
understand or read.
As to the actual wording of the waiver, the Judge ruled the
waiver was "unambiguous as to the risks associated with the
play of hockey". The waiver specifically listed the risks and
dangers that were covered (e.g. 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, teeth, face, head and other parts of the
body, bruises, sprains, cuts, scrapes, breaks, dislocations and
spinal cord injuries which may render me permanently paralyzed). In
the judge's opinion, "the wording described the very claim
that was being pursued".
It appears there were two distinct steps in the Judge's
analysis: First, before even looking at the wording of the waiver,
were there any factors that would lead him to void the waiver,
regardless of its terms. In this case, the Judge would not allow
Levita (who is a lawyer) to void the waiver because he voluntarily
signed something he did not read or understand. The Judge noted
that Levita understood the significance of signing a waiver
Next, was the waiver ambiguous, or did it specifically list the
dangers and risks that were covered? The Judge's assessment of
the waiver is critical – make sure that you have really
thought through and articulated the specific risks and dangers for
the waiver that is being sought.
Remember, a waiver for participating in a house league hockey
league may require a different description of the risks than a
waiver for participating in sky-diving lessons or a waiver for
participating in an all-expenses paid cruise to Alaska.
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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