Canada: Waivers And Assumption Of Risk No Defence To Fatal Accidents Act Claims In PEI

The recent decision in Stevens v. Oyster Bed sheds light on the efficacy of waiver/assumption of risk forms in fatal accidents on Prince Edward Island.¹

Background

In Stevens v. Oyster Bed, Mr. Stevens tragically passed away following a stock car race accident. An action was commenced under the Fatal Accidents Act (FAA) by the surviving spouse, on behalf of the deceased's dependents and beneficiaries against the Defendants, namely, Oyster Bed Speedway, Maritime Pro Stock Tour Ltd., and Shaw's Towing Service (1984) Ltd. Mr. Stevens' participation in the race, and the Tour series by extension, was conditional on his entering into various waiver and assumption of risk forms.

PEI Fatal Accident Act ("FAA")

The Prince Edward Island FAA is unique in Canada, as the Act creates an independent cause of action regardless of whether the deceased was entitled to maintain an action. This principle was affirmed by the Prince Edward Island Court of Appeal in Donovan.²

In re-iterating Donovan, the court in Stevens concluded that the waivers and release documents executed by the deceased did not preclude a claim by the deceased's dependents given their ability to bring an independent action.

Is the FAA triggered?

The Defendants asserted that a claim under the FAA could not succeed because Mr. Stevens voluntarily assumed the risk and so no duty of care was owed to the deceased. Given this lack of duty it was further contended that the deceased's death was not caused by a wrongful act, as defined by the FAA, which would not satisfy the elements of the statutory cause of action.

The court rejected this argument. In their decision it was explained that the volenti defence is a common law defence that states a plaintiff who agrees to assume risk absolves defendants of all responsibility for their alleged wrong. When reading the FAA in its entire legislative context, it was held that barring an action using the volenti defence was inconsistent with the statutory regime of the FAA. In examining the explanatory notes of the FAA's enactment it was reiterated that, although unique to Prince Edward Island, the Act was meant to provide a remedy for those dependents regardless of whether the deceased would be able to maintain an action on their own. It was noted that this may elevate the "rights" of dependents beyond the rights a deceased would have otherwise had.

Takeaways

Waivers continue to be an important tool for businesses to limit their exposure to liability. Given Prince Edward Island's unique statutory regime and the holding in Stevens, businesses and operators who regularly make use of waivers must be mindful that, in the unfortunate event of death, these operators' will not be able to rely on any waivers or assumption of risk by the deceased. This is at odds with the enforceability of waivers where a participant is "merely" injured in their operation. Under those circumstances, the participant's claim is barred (provided their waiver is found enforceable).

This article was written by Michael Rogers, Student in our Charlottetown office, with support from our Insurance Litigation group.

Footnotes

1 Stevens v. Oyster Bed, 2022 PESC 25 [Stevens]

2 Donovan v QCRS, 2016 PECA 1

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