Many of us have had the experience of being presented with a waiver to sign before participating in a recreational activity. What is the effect of signing such a document?
This issue was again recently considered in the case of Zaky v 2285771 Ontario Inc. cob Sky Zone Indoor Trampoline Park1.
In that case, the Plaintiff was seriously injured while attempting a backflip at an indoor trampoline park. He brought a lawsuit against the trampoline park, Sky Zone. Sky Zone brought a motion to the Court for summary judgment, seeking to dismiss the Plaintiff's claim on the basis that he had signed a waiver.
The Plaintiff had signed an electronic waiver at an electronic kiosk. The waiver was titled: "Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement". It stated, among other things:
- By signing this document, you will waive certain legal rights, including the right to sue
- PLEASE READ CAREFULLY
- "My participation in this activity is purely voluntary and I elect to participate in spite of the risks"
The waiver specified risk of "broken bones" and listed "flipping" as an activity that can cause serious injury.
In considering whether to dismiss the Plaintiff's claim, the Court confirmed that waivers are generally enforceable, but reiterated the three general exceptions to this principle:
(a) where the Plaintiff has signed a document mistaken as to its nature and character, such as where the document was not presented as a waiver but rather something more innocuous like a registration form;
(b) where the Plaintiff's signature was induced by fraud or misrepresentation; and,
(c) where the defendant knew or ought to have known that the Plaintiff did not intend to agree to the terms of the waiver, and therefore, the defendant had a duty to bring the terms of the waiver to the Plaintiff's attention.
The Court said it was unable to determine with confidence that the Plaintiff's claim was destined to fail because of the waiver. There was an issue that required a trial: Did Sky Zone take reasonable steps to bring the terms of the waiver to the Plaintiff's attention? Therefore, the Court refused to dismiss the Plaintiff's claim at that stage.
The Plaintiff's evidence at the motion included that he was unfamiliar with the waiver, he signed a lengthy document electronically, he was 'rushed', none of the important waiver of liability terms captured his attention through the use of bolding, highlighting, or color, nothing else was communicated to him about the waiver whether verbally or through signage, and he didn't know he was giving up his legal rights.
Interestingly, Sky Zone later changed the document to add two colored "agree" prompts and check boxes beside key exclusion of liability provisions.
The Court ultimately confirmed that the circumstances and conditions under which a participant is required to sign a waiver are of fundamental importance.
The enforceability of the particular waiver in the Zaky case remains to be seen, depending on the evidence advanced at the trial.
Courts have consistently endorsed the importance of freedom to contract, and have upheld waivers in appropriate circumstances. In considering whether a waiver will stand, some questions to think about include:
- does the language in the waiver cover all forms of potential risk and sources of legal liability?
- is appropriate and well-marked signage present, alerting participants to the existence and contents of the waiver?
- has the participant been given sufficient time and proper conditions to read the waiver?
- does the party seeking to rely on the waiver have reason to know that the person signing it did not intend to agree to the terms?
- have specific efforts been made to draw onerous terms to the attention of the participant, such as by highlighting, bolding, or checkbox?
- is there a procedure in place to alert participants to the terms of the waiver?
- is the waiver ambiguous or confusing?
- does the loss in question fall beyond the scope of the waiver?
These and other factors will be relevant in determining whether the waiver will be enforced.
The law concerning waivers continues to evolve in Ontario. If in doubt, contact an experienced personal injury lawyer for advice.
1 Zaky v 2285771 Ontario Inc., 2020 ONSC 4380
Originally Published by Siskinds, November 2020
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.