Canada: Do Parents Know Best? An Update On The Enforceability Of Waivers Executed On Behalf Of Infants

It is well-established in Canadian law that a properly drafted waiver of liability can serve as a full defence to a tort claim. This has been articulated by all levels of Court, including the Supreme Court of Canada, and is a principle relied upon daily by businesses (and their insurers) across the country to protect themselves from exposure in lawsuits brought by their patrons and customers.1 However, this principle does not have uniform application to all types of waivers, irrespective of whether or not the waiver was properly drafted and duly executed. One type of waiver over which there remains a dark cloud of uncertainty regarding its enforceability is a waiver signed by a child and/or a parent/guardian on behalf of a child, attempting to bar the infant plaintiff from bringing an action arising from injuries sustained while a participant in an activity, typically a sporting activity (i.e., skiing, horseback riding, etc.). Addressing this gap in the law, we will highlight a recent decision on the issue and recommend practical alternatives that businesses can employ until that gap is filled.

The law in Canada is currently completely devoid of any authoritative decision on the issue of parental waivers, either federally or provincially. The British Columbia case of Wong (Litigation guardian of) v. Lok's Martial Arts Centre Inc.2 directly addressed the issue regarding the enforceability of a waiver, signed by a parent, attempting to waive the rights of a child to bring an action. However, the judge in Wong ultimately determined that British Columbia's Infants Act.3 and not the common law, barred the enforceability of parental waivers. Given the absence of an equivalent statute in Ontario, the legal principles in that decision would not apply to claims pursued in Ontario.

The absence of a law on parental waivers is of particular concern for the countless number of businesses and organizations such as schools, recreational sport facilities, and children's summer camps (to name a few) that rely on these waivers in carrying out their regular activities. However, it appears that clarity may be forthcoming as indicated in a recent New Brunswick case, Dewitt v. Strang.4

In Dewitt, the plaintiff, Thomas Dewitt, a 15-year-old boy, was rendered a paraplegic while participating in a motocross event in Sackville, New Brunswick. The event was hosted by The Canadian Motorsport Racing Corporation ("CMRC"). In order to participate in the motocross event, participants below the age of 19 were required to sign a "Minor Participant Waiver" (the "Waiver"). Additionally, the participant's parent/guardian, as well as a witness, were also required to sign the Waiver. The plaintiff signed the Waiver, as did his father and a witness, the owner of CMRC. The Waiver required the plaintiff to indicate his experience level and age.

Unfortunately, the plaintiff was involved in a serious accident during the event and he was rendered a paraplegic. He commenced an action against a variety of defendants, including the Town of Sackville and CMRC. These defendants specifically pleaded and relied upon the Waiver in their statement of defence. The plaintiff brought a motion seeking to strike the paragraph from the defendants' statement of defence relying upon the Waiver as a complete defence to the plaintiff's claim. This motion required the court to determine a question of law; specifically, whether the Waiver signed by the plaintiff and his father was a complete bar to his right of action. The plaintiff contended that such a defence was scandalous, frivolous or vexatious. Further, he submitted that the waiver was not binding on him because he was unable to enter into a binding contract as a minor and a waiver was merely a contract by another name.5

The key aspects of the Waiver specifically stated the following:

I UNDERSTAND AND AGREE, on behalf of myself, my heirs, assigns, personal representative and next of kin, that my participation in any EVENTS is not permitted without my execution of this document. I hereby warrant and agree that:

1. I know that there are significant risks including the risk of serious injury or death associated with participation, whether as a competitor, student, official or worker in all forms of motor sport and in particular to being allowed to enter, for any reasons, any restricted area; and

2. I acknowledge and accepts these risks and all other risks associated with participation in these EVENTS even if arising from negligence or gross negligence, including any worsening injuries caused by negligent rescue operations or procedures, or the event organizer, the event venue(s) and of any and all persons appointed therewith or participating therein; and

3. I am 15 years of age.

I HAVE READ AND UNDERSTAND THIS DOCUMENT AND I AM AWARE THAT BY SIGNING THIS ASSUMPTION AND ACKNOWLEDGMENT OF RISK I AND/OR MY PARENTS/GUARDIANS MAY SURRENDER CERTAIN LEGAL RIGHTS.

I SIGN THIS DOCUMENT VOLUNTARILY AND WITHOUT INDUCEMENT.

The motions judge considered whether the defendants' position had a reasonable prospect of success, pursuant to the principle confirmed by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd.6 The court noted that no law prevented the plaintiff from entering into the agreement with the defendants, which he did voluntarily with full awareness of the risk. Therefore, the court ultimately denied the plaintiff's motion to strike the paragraph of the statement of defence pleading the Waiver, as the law was not definitive on the issue and there was then a reasonable prospect of success for the waiver defence at trial.

In considering the question of whether the Waiver was a bar to the plaintiff's right of action, the court addressed the fact that neither party was able to find case law applicable to the facts of the case. The British Columbia case of Wong7 was considered for its similarities but could not be relied upon similar to the reasons discussed above in the Ontario court context, namely that New Brunswick did not have a statute similar to British Columbia's Infants Act.

The court also considered a variety of secondary sources, including academic commentary on the issue. All of the commentary referred to by the court agreed that waivers restricting the rights of minors are invalid and unenforceable because contracts limiting the rights of children are invalid – whether their parents signed them or not – and it is a matter of public policy to protect minors' interests.8

However, before dismissing the plaintiff's motion, the court discussed two alternatives to the parental waiver, although it did not provide a judicial opinion with respect to the enforceability of these alternatives. The two alternatives were: 1) a signed acknowledgment; and 2) an indemnity agreement.

The court described these alternatives as follows:

Signed Acknowledgment: According to the Law Reform Commission of British Columbia, a signed acknowledgment would not be considered an equivalent to a pre-tort waiver executed by an adult, but can be effective in obtaining evidence of acceptance of an inherent risk by a minor and/or their parent. It simply would require a minor and their parent or legal guardian signing a document which acknowledges that they recognize the inherent risk of an activity and are willing to assume them.9

Indemnity Agreement: The Manitoba Law Reform Commission discussed the principle of indemnity agreements in a 2009 edition. It explained that parents can indirectly restrict a minor's right of action against them by having their parent agree to indemnify the occupier for any legal costs or settlement payments made in favour of a child.

With respect to a signed acknowledgment, its application appears dubious. Indeed, the Law Reform Commission of British Columbia opined that an acknowledgement signed by a parent/guardian on behalf of a minor, recognizing the existence of inherent risks in a specific activity and assuming the risks of same, was tantamount to imposing on a minor the wrongful acts or omissions of another party (in this case their parent/guardian). Any terms of a signed acknowledgement attempting to pursue that legal effect would not be enforceable as against a minor.

With respect to an indemnity agreement, the Law Reform Commission of British Columbia has stated that:

The practice of extracting agreements from parents to indemnify operators in respect of legal actions on behalf of their children also contravenes the public policy of protecting minors' interests. They are clearly intended to discourage a parent from pursuing a child's rights. If there is doubt about the unenforceability of such indemnities, it should be removed.10

As such, it may very well be the case that such provisions would not be enforceable. Further, consideration must be given to the fact that if a minor recovers damages as a result of a lawsuit, the money will generally be held by a court of competent jurisdiction for the benefit of the child and that parents/guardians do not always have access to this money. As such, the potential success of a claim as against the parents/guardians, in accordance to the signed indemnity, would depend on their personal means, irrespective of the amount obtained by the minor.

The plaintiff in Dewitt appealed the motions judge's decision to the Court of Appeal of New Brunswick. The decision of the Court of Appeal was released on November 10, 2016.11 The Court of Appeal affirmed the motions judge's decision and dismissed the appeal. The Court of

Appeal noted that absent any error of law, error in the application of the legal principles, or palpable and overriding error in the assessment of the evidence, the motions judge had discretion to dismiss the plaintiff's motion and to leave the determination of the legal issue as the enforceability of the Waiver to the trial judge. As there were no such errors, the Court of Appeal did not have the jurisdiction to interfere with the motions judge's decision. The Court of Appeal noted that it was not unreasonable for the motions judge to refuse to exercise his discretion to strike out the paragraph pleading a waiver defence, as the issue would be better determined "following a fulsome evaluation of all the evidence and issues" at trial.12

While the enforceability of waivers as against minor plaintiffs is tenuous at best, the courts have not yet outright decided that such waivers will be unenforceable as a general rule. Despite this, Dewitt highlights the fact that the courts will not be quick to enforce a waiver of liability as against a minor, notwithstanding the fact that the minor and/or their parent/guardian executed the waiver. It is anticipated that courts will be more reticent to enforce such waivers where the minor plaintiff is of a very young age and unable to execute such a waiver on their own or where only the parent/guardian executed the waiver. The jurisprudence throughout Canada underscores the extreme difficulty in enforcing waivers as against those under the age of majority.13 It appears that the courts are also considering other potential methods through which a defendant may seek to bar liability arising from an injured minor, although these methods have yet to prove successful in court. This is not to say that there is no benefit in requiring the execution of waivers for activities undertaken by minors. The fact of a signed waiver can be used to establish that the risks of an activity were discussed. However, businesses and insurers must take note that waivers signed by or on behalf of minors are unlikely to be enforceable in Canadian courts as a complete bar to a claim and must factor this into their liability risk analysis.

Footnotes

1 Crocker v Sundance [1988] 1 SCR 1186 (SCC); Dyck v Manitoba Snowmobile Association Inc. [1985] 1 SCR 589 (SCC).

2 2009 BCSC 1385 (BCSC) [hereinafter Wong].

3 RSBC 1996] CHAPTER 223.

4 Dewitt v Strang, 2016 NBQB 028 [hereinafter Dewitt].

4 Brennan v Singh (1999), [1999] BCJ No 520, 86 ACWS (3d) 537 (BC SC).

5 Several of the defendants, including the plaintiff's father, Greg Dewitt, and Beale and Inch Construction Ltd., did not respond to the plaintiff's motion, likely due to the fact that they did not have the benefit of an executed waiver in their favour.

6 [2011] S.C.J. No. 42 (SCC)..

7 Supra note 2.

8 Supra note 4 at 30.

9 Ibid.

10 Ibid at 39.

11 2016 NBCA 63.

12 Ibid at 20.

13 For a further analysis of the enforceability of waivers and permission forms, please see Mother May I? The Effectiveness of Waivers and Permission Forms in Cases of Injured Minor Plaintiffs, by Jim Tomlinson, David Olevson, et al., McCague Borlack LLP, published September 11, 2013.

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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