Before participating in an activity that could lead to injury or death, a person may be required to sign a waiver as a form of expressed consent to the risks that exist, due to the inherent nature of the activity. By signing on the dotted line, the waiver could prevent an injured person or their family from advancing a claim against those responsible for permitting/facilitating the activity. Phrases such as "payment of this is confirmation of agreement to the following terms of usage" may also be equivalent to signing on the dotted line and agreeing not to advance a claim for personal injuries suffered while participating in the activity.

In Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 (CanLII), the plaintiff joined the defendant's gym on a one-year membership agreement. Upon joining, she was presented with a contract which contained an exclusion clause. The exclusion clause provided that:

"The Member releases the Club... from any claim whatsoever hereafter arising by reason of the Member suffering disease, deterioration of health, illness, or aggravation of condition or of ill health as a result of participation in the programs, acceptance of advice or use of the facilities provided by the Club or any claim for personal injury sustained by the Member in, on or about the facilities of the Club and its related companies, including and without limitation any claims for personal injuries resulting from and/or arising out of the negligence of the Club...and acknowledges that he/she is using the said facilities at his/her own risk."

After signing the release, the Plaintiff was injured while participating in an exercise class operated by the defendant. During the exercise class, the plaintiff was instructed to step off the step to her right. The plaintiff stepped on a circular metal dumbbell immediately to her right which caused her to lose her balance and fall on her back. The plaintiff took the position that she did not have an opportunity to actually read the Agreement and that no one brought the exclusion of liability clause to her attention when she signed the Agreement. The defendant argued that the plaintiff was solely responsible for her injuries and that she was able to read and understand the Exclusion Clause. The defendant brought a motion for summary judgment against the plaintiff.

The Court relied on Section 5(3) of the Occupiers' Liability Act  which required that a gym must take reasonable steps to bring the provisions of the waiver to the attention of the member when she signed the agreement. In the current case, the Court found that the document itself did not take reasonable steps to bring the exclusion clause to the member's attention as the provision was on the reverse side of the Agreement under the general heading "Membership Agreement – Terms and Conditions" and in tightly printed "fine print". There was no place on the agreement for the member to sign or initial the provision which would have demonstrated that the gym made reasonable efforts to bring the provision to the member's attention. As such, the defendant could not rely on the exclusion clause contained in the membership agreement (although the waiver was set aside, the Court found that the plaintiff could not establish that the defendant was negligent in any manner and held that the defendant gym was not liable to the plaintiff).

The walk away from this case is that a waiver is meant by at least one party to prevent someone from making a claim. The validity of the waiver will depend on the wording of the waiver applying to what happened and whether the waiver was properly brought to the attention of the person. There has to be an agreement or deemed agreement between the parties for the waiver to be binding.

The validity of sporting events and ski hill waivers are much less obvious than gym contracts signed and initialed with a person allegedly explaining details of the waiver. More recently your ski hill ticket is purchased online. You have to tick off that you read the conditions under which the ticket is being sold. In the conditions, you have to agree to not make any claim against the hill or its employees even if an accident occurs as a result of the negligence of the hill. You get to the hill and there are usually some signs at the lift about riding the lift at your own risk and there are signs warning you will ski at your own risk. The back of the ticket you are wearing usually has a waiver written in small print. You didn't necessarily sign on the dotted line and you didn't have someone explain to you the details of the waiver. Despite this, waivers are typically binding on foreseeable and usual risks, but perhaps not where unexpected things happen that are outside of the norm.

Your best bet if you or your family are involved in an accident and a waiver may be applicable is to consult with an experienced personal injury lawyer as soon as possible.

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