Nearly every recreational activity offered today requires the participant to sign a waiver of liability. Skiing, spin classes, kid's field trips- waivers have become so common place that people don't think twice about signing them. But what effect do these waivers really have? If you or your child is injured after you've signed a waiver, does that truly mean you have no legal recourse?
In theory, that is exactly the effect a waiver has. They are intended to be legally binding contracts by which you waive your right to sue an individual or organization for injuries or losses you sustain, even if such injury or loss was due to their negligence. The courts have held varied decisions on their enforceability over the years; however, as the law currently stands, liability waivers are largely upheld in Ontario.
This was confirmed in 2018 by the Ontario Court of Appeal in Schnarr v Blue Mountain Resorts Limited1. In Schnarr, the Court was asked to consider whether or not an entity that permitted their premises to be used for recreational activities, in this case a ski resort, could rely on a waiver of liability. Under the Occupier's Liability Act, "occupiers" (an entity who has possession, responsibility, or control over a premises) are permitted to obtain and rely upon waivers. However, a second statute, the Consumer Protection Act, conflictingly precludes a supplier of a service from obtaining a waiver of liability. The Court considered the two statutes and held that the Consumer Protection Act does not apply to activities governed by the Occupier's Liability Act and therefore, it does not preclude an occupier from relying on a waiver for activities carried out on their premises.
Nevertheless, there are specific exceptions. As a general rule of thumb, a waiver can only be relied upon when the injury or loss sustained falls within the defined scope of the waiver. If your child's summer camp requires you to sign a waiver releasing them from liability in the event your child sustains an injury while zip lining, the camp cannot rely on the waiver as a defence if the child is hit by a car in the parking lot.
Further, the individual or organization who intends to rely on the waiver must take reasonable steps to bring the waiver to the attention of the party signing it. For example, the signor must be given sufficient time to read and understand the document prior to signing it. For the same reasons, the waiver is not enforceable if the party signing it is a minor or if they lack capacity. Alcohol or drug-related impairment may result in a person being deemed to have lacked capacity.
In short, the enforceability of a waiver is never certain. The circumstances of each case should be evaluated independently.
1. 2018 ONCA 313.
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