A waiver or release of liability is a contractual clause designed to prevent a person who signed the contract from taking legal action and suing for personal injuries. Such waivers are often required as a condition of participating in an activity. You’ll often find these waivers at ski and snow-tube parks; water and amusement parks; rock-climbing, sky-diving, bungee jumping and extreme-sports activities; more ordinary organized sports such as softball leagues; and school-organized events such as field trips.
Waivers of liability in sports and recreational activities are usually designed to protect the organizers of such activities from accepting responsibility when their negligence causes someone else to suffer injury. Often times, such waivers are not enforceable. Our Ontario courts have not recognized or enforced such waivers where the sports/recreational facility failed to take reasonable care for the safety of participants.
If sports and recreational facilities take reasonable care to ensure that their facilities are reasonably safe for participants, then they don’t need waivers. Our Ontario courts already recognize that when people participate in sports, they assume a heightened risk of injury. That risk is inherent in the sport and the degree of risk assumed depends on the sport. Our courts do not require sports/recreational facilities to be perfect or prevent all injury. They only require them to take reasonable care in the circumstances. In light of this, a sports/recreation facility does not need a waiver to protect itself from frivolous lawsuits. A liability waiver is nothing more than a facility’s futile effort to avoid responsibility for injuries resulting from its failure to take reasonable care. It’s futile because our Ontario courts do not recognize waivers, and will not enforce them, in circumstances where the sports/recreational facility failed to take reasonable care for the safety of participants.
Sometimes participants are required to sign a waiver of liability before they are allowed to participate. Sometimes no signature is required, however, signs are posted throughout the facility alerting people that the facility makes no promises about the safety of its equipment, and that if people choose to participate, they do so at their own risk. In other words, the waivers state that by participating in the activity, you know and agree that if you are injured, for any reason, you cannot sue the facility.
These waivers are not always legal or enforceable. Whether a waiver is enforceable in your case depends on the particular circumstances of your case. The courts look at a number of different factors when determining if such a waiver is enforceable, including:
- how experienced the injured person is with the sporting activity,
- if the injured person had the capacity to understand what the waiver meant,
- how familiar the person is with that particular facility,
- how and when the waiver language was presented to the person, if the person had an opportunity to read and understand it, and
- how clear or ambiguous the waiver language is.
An experienced lawyer should be consulted after accident injury to determine if legal action should be taken.
THE LAW ON WAIVERS & RELEASES
Waivers of liability are often used by sports/recreational facilities where the facility is running an activity for profit which has inherent risks. When those risks result in injury, there usually are no grounds for a lawsuit. It is only when the facility failed to take reasonable care to prevent injury that it is exposed to a lawsuit – only then does it rely on the waiver clause as a defence.
Although a facility will be found liable only if it failed to take reasonable care, it anticipates such failures and fears the legal consequences of having to pay compensation for injuries. In an effort to avoid responsibility, a facility includes a waiver of liability clause in its contract with its customers.
Since the purpose of waiver clause is to protect a facility from taking responsibility, and given that such clauses are frequently inserted where the consumer has had little or no opportunity to negotiate, our Canadian and Ontario courts carefully scrutinize the applicability of such clauses.
Legislation: Occupiers’ Liability Act
Sports/recreational facilities in Ontario are usually occupiers pursuant to the Occupiers’ Liability Act,R.S.O. 1990, c. O.2 (“OLA”). The OLA imposes a duty of care upon occupiers of premises to take positive steps to ensure that their premises and activities carried on the premises are safe for persons entering upon them.
Facility’s Defence of: “You Voluntarily Assumed the Risk”
When a sports/recreational facility relies on a waiver of liability as a defence to a lawsuit, this type of defence is known as “voluntary assumption of risk” or the “volenti defence”. It is based on the principle that, by agreeing to assume the risk, the participant relieves the facility of all responsibility for it. If effective, this defence can completely bar a person from commencing a lawsuit, however, it is often viewed by Courts as an outdated way to assess liability because it lacks apportionment. Therefore, our courts have tightly limited the scope and application of the volenti defence. This defence will apply only in situations where the participant is found to have knowingly consented to the inherent physical risks involved in the activity and the legal risks of accepting the waiver clause. If the person is not in a position to appreciate the physical risks or to understand the waiver clause, they cannot be deemed to accept them.
Facility’s Defence of: “The Waiver is a Binding Contract”
A waiver can serve as a full defence to a claim in tort, however, it requires a valid contract. It must adhere to contractual principles such as exchange of consideration and a meeting of minds. A defendant cannot rely upon a waiver where the person who signed it didn’t know that it intends to exempt the facility from liability.
The Waiver is Not Binding if Presented After You Paid to Participate in the Activity
A new term cannot be added to a contract after the contract or agreement was made. If the waiver terms are presented only after the contract is made (contract is usually made when the consumer pays for entry/participation into the facility/activity), then those waiver terms are not part of the contract and are not enforceable.
In other words, if a waiver clause is not part of the original agreement, it cannot be added to the agreement afterwards. Notice of the waiver must be given, and consent obtained, before the contract is finalized.
In Trigg v. MI Movers, the Ontario Court of Appeal accepted the dissent in Delaneyv. Cascade River Holidays Ltd. Delaney went on a whitewater rafting excursion operated by the defendant, Cascade. After paying his fee, and while preparing his gear and equipment to board Cascade’s van, Delaney signed a liability waiver. Delaney drowned in the excursion. The majority of the court found that Delaney had knowledge of the release at the time he paid his fee. In dissent, Nemetz C.J.B.C. found that the release was signed after the fee was paid. He found the release unenforceable. He stated that, at the moment of fee payment, Cascade was obligated to take Delaney on the excursion on the terms as they then existing. After payment of the fee, Cascade was obliged to take Delaney on the excursion whether or not he signed the release. “The subsequent requirement of signing a release was an attempt by Cascade to impose additional and onerous terms to a contract which had already been finalized”.
In Trigg, the Ontario Court of Appeal found that a facility’s attempt to “clarify” the waiver language, after the contract was accepted, did not have any legal consequences.
Person Cannot Consent to a Waiver if They did not Understand It
If a sports/recreational facility uses a waiver clause, it has an obligation to make sure that each participant understood the legal effect of the waiver before he or she committed to the activity. Where this is not done, the waiver will not be binding.
The waiver clause must be made so prominent to the consumer that they must have known about it and agreed to it.
Often, the issue is whether the written contract does represent the true intention of the consumer who signed it. In many cases, standard, “boilerplate” forms are signed without being understood. Where a facility seeks to rely upon a waiver, it needs to prove that it took reasonable measures to draw the waiver terms to the attention of the consumer. Without proof that the facility took such reasonable measures, it is not necessary for the consumer to prove fraud or misrepresentation. He only needs to prove that he didn’t know about the waiver clause or what it meant. A determination of this issue depends on the adequacy of the notice given by the facility to the consumer at the time of, or prior to, the making of the contract.
The onus is on the party who stands to benefit from the waiver terms (the facility) to prove that adequate notice was given. The facility must prove that it specifically drew the waiver clause to the consumer’s attention or has accurately explained it to the consumer.
In ordinary commercial practice, the parties are usually sophisticated and familiar with contracts and the subject of the contract, and there is usually plenty of time and opportunity for the parties to consider the terms of a proposed contract. Under such circumstances, it is relatively safe assume that a party who signs a contract consents to its terms. This cannot be said for most consumers signing waivers in a hurried, informal manner. This is especially so where the terms of the waiver are inconsistent with the over-all purpose of the contract. In such circumstances, the facility must take steps to ensure that the consumer understands and agrees to any onerous terms such as a waiver clause.
There is an obligation on a facility who relies on a waiver clause to make sure that its customers understood the legal effect of the waiver.
Where the language used in the waiver does not fully communicate to the customer the importance or effect of the waiver, there is no true consent and the release does not bind the customer. The use of the term “negligence” in a waiver without an explanation of what it means can render the waiver unenforceable. In Ochoa v. Canadian Mountain Holidays Inc (B.C.S.C.), Koenigsberg J. said:
“Central, in my view, to an analysis or interpretation of this waiver of liability is what the general or reasonable person in these circumstances would understand the word negligence to mean. I am concerned that a reasonable individual reading a waiver does not understand what is meant by the word negligence. That lack of understanding might very well be so significant as to rob an agreement to a contract waiving liability for negligence of legal effect. It is not unusual for a lay person to think that negligence means making mistakes. If told it means failing to take careful measures available and understood to be necessary for safety in the circumstances, such an individual would be surprised and significantly less inclined to think it should be part of any contract of service. Indeed, on the evidence before me in this case only one of eight persons who signed this waiver of liability knew what it meant. These persons were of considerable education and experience. Significantly, Mr. Hans Gmoser, who was the founder and operating mind of the defendant CMH at the time of the accident, did not know what negligence in the waiver was intended specifically to cover.…
Any waiver seeking to cover negligent conduct must surely contain something more than the word negligence. That something more would include ,at the least, a context for the word negligence describing the kind of conduct amounting to negligence which is intended to be covered. In order for a court to find the term sufficient to cover any negligent behaviour, it must be satisfied that the individual signing it, if he read it, could reasonably be expected to understand its meaning. I hasten to add that the authorities on this subject do not require that that understanding be objectively found on the waiver alone. It may be gleaned from the circumstances of the individual’s knowledge of the activity at issue coupled with the document under consideration.”
Waiver Presented Under Rushed and Casual Circumstances
When a consumer signs a contract in a hurried and casual way, without a real opportunity to read and understand it, the court has concluded that the facility should have known that the person had no intention of consenting to any onerous terms in the contract.
In Delaneyv. Cascade River Holidays Ltd, the court stated that it is unfair and insufficient to introduce a waiver clause to people only minutes before they were to depart on a trip, when their minds were directed to their trip and packing their gear. The Ontario Court of Appeal in Triggv. MI Movers supported that sentiment and found similar unfairness where the facility had attempted to “clarify” the meaning of the waiver clause on the day that its consumers’ cars were to be shipped to Ireland, after consumers had already made arrangements for same.
Court Interprets Waiver with Consideration of What All Parties are Agreeing To
Where the waiver clause is inconsistent with the overall purpose of the contract, courts have found that the consumer had no intention of consenting to the waiver terms unless the facility took reasonable measures to ensure the consumer understood the terms. Where the activity is inherently dangerous, a person is entitled to expect that although he signs a waiver, the facility will be properly qualified and will take reasonable care to avoid hazardous situations for its customers.
An Assumed Promise that Facility will Take Reasonable Care
There is an implied warranty in all contracts, founded on the presumed intention of the contracting parties. Parties assume an implied duty of care. Such an implied term is reasonably expected of all contracting parties and it is necessary to give effect to a contract. Any release or waiver provisions should be interpreted so as not to undo this implied warranty.
Waiver not Upheld Where it Breaches a Fundamental Part of the Contract
A waiver clause will normally not apply to allow a facility to escape liability for a breach of a fundamental part of a contract. It is meaningless for a facility to say to its customers: “We will take reasonable care to ensure your safety, but we are not liable if we do not do it.”
In Heffron v. Imperial Parking Co., a man, Heffron, left his car and keys with a parking lot attendant, paid a parking fee and received a ticket that contained a waiver clause for theft or damage to the vehicle. The car and keys went missing and the car was later found damaged. The parking lot attendant had no explanation. The court found that the parking facility had failed to exercise reasonable care. The waiver clause that said the parking facility was not responsible for any theft or damage “however caused” was not upheld because there was a fundamental breach of the contract. The fundamental terms of the contract were: in exchange for a fee, the facility will care for the car.
In Hunter Engineering Co. v. Syncrude Canada Ltd. the Supreme Court of Canada considered the consequences of a fundamental breach where there was waiver clause. It held that, whether and to what extent such a clause should be applied to a breach of contract depends on the terms of the contract or a determination of the intent of the parties. The existence of a waiver caluse “cannot be considered in isolation from the other provisions of the contract and the circumstances in which it was entered into.”
In Cudmore Estate v. Deep Three Enterprises Ltd., the defendant N.A.S.D.S. was found negligent for failing to adequately research the experience and expertise of a scuba diving instructor that they hired. The court said: “…this neglect, whether a fundamental breach of contract or [not], was such to make the enforcement of the waiver unconscionable and in any event renders the waiver clause unenforceable.”
In J.M. Equipment Inc. v. Monson Deluxe Cleaners Ltd., defects in purchased machinery were so fundamental that they deprived the purchaser of substantially the whole benefit of the contract for purchase and sale. The court found that there was a fundamental breach of the contract and the vendor could not rely on a waiver clause to avoid responsibility for these defects.
Principles of Public Policy and Unconscionable Terms
The courts do not allow complex, fine-print forms to be made a trap for the unwary. The courts do not blindly enforce harsh or unconscionable agreements. The circumstances surrounding the making of a contract containing liability waiver terms can allow the court to find that it would be unconscionable to enforce the waiver.
In considering whether a waiver is fair and reasonable, the court will consider whether there was inequality of bargaining power, whether it was adequately brought to the attention of the consumer, whether the consumer had capacity to understand it, the parties’ intention when the contract was made, the timing of the waiver’s presentation, etc.
The court considers these factors in order to arrive at the most just result for the parties, and also with a view to the public policy ramifications of its decisions. There is a broad, public policy assessment that the courts consider when balancing conflicting values at play in waiver/contract disputes.
In Heffron, where the defendant, through negligence, allowed someone else’s property entrusted to this care to be stolen, it was found to be unconscionable and an abuse of freedom of contract to allow him to rely on a waiver clause. One of the facts which may lead to a finding of abuse is that the waiver clause would render meaningless the defendant’s implied promise to use reasonable care. Similarly in Cudmore, the defendant’s negligence in providing of scuba diving courses made the waiver clause unenforceable.
Where a Facility has a Fiduciary Duty
A sports/recreational facility may owe its customers a fiduciary duty of care. This is a heightened responsibility on one party to take care in protecting the interests of another. Such a duty exists in special relationships, such as that between a doctor and patient or a lawyer and client. This type of relationship can sometimes exist between a sports/recreational facility and its customers. The nature of the relationship can give rise to the fiduciary duty. There is no test for such a relationship but it is marked by these characteristics:
a) The fiduciary is able to exercise some discretion or power over the consumer,
b) The fiduciary can unilaterally exercise that power or discretion in order to affect the consumer’s interests, and,
c) The consumer is vulnerable to, or at the mercy of, the fiduciary.
In circumstances where the consumers have placed themselves in the hands of the facility in order to engage in a hazardous activity and they rely upon the facility’s expertise to make all decisions about organizing the hazardous activity, the consumers are vulnerable to injury if the facility does not take reasonable care. Such a relationship may create a fiduciary duties. A fiduciary duty would require that a facility act in the interest of the consumer. In such fiduciary relationships, facilities are not allowed to take advantage of consumers who place their trust in them. In the context of such a relationship, a waiver clause may not be upheld if the facility’s negligence is a breach of fiduciary duty.
Decisions Enforcing the Waiver Defence
In McQuary v. Big White Ski Resort, a 1993, the British Columbia SCJ upheld a waiver of liability. The circumstances of the accident were in dispute but the accident caused the plaintiff to land in a concrete drainage culvert, fracturing his pelvis. At the time of the accident, the plaintiff was a very experienced skier. He was 26 years old and had been skiing for approximately 19 years. The plaintiff purchased the ski ticket which contained the waiver language and he admitted to being exposed to numerous waiver signs placed at locations where ski tickets were sold. The plaintiff admitted to understanding the meaning and purpose of the waiver throughout the course of his 2 day visit at the ski resort. There were no issues with the plaintiff’s ability to understand the waiver language, with ambiguity of waiver language or with legibility (size of font) of the waiver language on the ski ticket or the waiver signs.
In Dawe v. Cypress Bowl Recreations Ltd. (1993), the British Columbia SCJ upheld a waiver of liability. The plaintiff fell on the downhill side of marshalling area for a chair lift. The plaintiff claimed he was proceeding at a slow speed across the marshalling area when he suddenly fell over an unmarked, vertical precipice. The defendant claimed that the plaintiff was skiing at a high speed as he descended the lower section of the run and across the marshalling area, and became airborne off a gently included slope that was visible, expected, and had been observed by the plaintiff in some nine or ten runs earlier that day. The plaintiff was a very experienced skier; for a period of 8 years he’d skied about 1 day/week in the winter season. The plaintiff admitted he was aware of the waiver language on the lift ticket and that he properly understood its meaning. The judge noted that the plaintiff was a university graduate and a school teacher. The plaintiff purchased his own lift ticket not only on the date of loss but numerous times at the same ski resort earlier that winter season. Each time he purchased a lift ticket he was exposed to waiver language posted on signs at the ticket wickets.
In Argiros v. Whistler and Blackcomb Mountain, the facts were omitted from the decisions but the issue was proper jurisdiction/venue for the trial of a personal injury/ski resort action. Venue terms were set out in the liability disclaimer which was displayed on signs throughout the ski resort and on the lift ticket, stating that jurisdiction for an action is British Columbia. The plaintiff commenced his action in Ontario. The judge had to make a finding on whether those venue terms were enforceable; whether a contract arose between the parties. The judge upheld the decision of the master in finding that British Columbia was the proper jurisdiction. He found that the venue terms were enforceable. The Judge’s cited reasons for same were:
- The plaintiff was a sophisticated business man
- in obtaining his lift pass, and his ski lesson voucher, and in attending ski lessons, he was exposed to obvious, legible liability waiver signage
- he plaintiff bought at least 1 lift ticket, perhaps 2 vouchers, all of which contained the venue terms
- at the lift ticket purchase point there were 10 garish signs containing the venue terms
- in addition to the above, certainly twice and arguably 8 times, he would have had to pass prominent, eye-level signage containing the venue terms
The Judge stated:
This is not a case like Judith Greeven v. Blackcomb Skiiing Enterprises where the evidence was vague as to the location of the signs and the warning at the top of the ticket was different. In this case the evidence was clear that the plaintiff must have seen them and the red printing above the notice on the ticket and voucher says “THESE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS.”
In Cejvan v. Blue Mountain Resorts Ltd. the plaintiff was injured when he fell into snow making equipment located on the edge of a ski trail. The plaintiff was snowboarding out of bounds when he struck the equipment. The plaintiff was found 80% liable and the defendant 20% liable for the accident.
The Court dismissed the plaintiff’s action and stated:
The defendant resort had breached the standard of care under the legislation and its own self-imposed standard of care as set out in its manual. An employee knowingly and intentionally failed to clear a hydrant pad of snow such that a skier would have reasonable notice of a fixed object located adjacent to or on the margin of the groomed portion of the run. In failing to clear the pad of snow, the defendant enhanced a hazard and thereby increased the risk of accident or injury to users of the hill and was negligent. However, it was cleared of responsibility by the contractual exclusion. Due notice of a waiver and a limitation of liability was brought home to the plaintiff. Although it could be argued that the defendant’s negligence created an increased risk taking it out of the exclusion clause, this would only apply to a skier abiding by the Alpine Responsibility Code who had not left the groomed portion of the trial intended for use, which was not the case. Moreover, the defendant’s liability was excluded by the clause stating that the “ticket holder assumed all risk of personal injury… resulting from any cause whatsoever including… negligence on the part of BMR and its employees.” In the alternative, the plaintiff was 80 per cent responsible for his injuries, and the defendant 20 per cent. The plaintiff elected to go off the ski trail looking for more powder on which to board, and then elected to make a narrow turn around the mound, not anticipating the presence of an object in his way. A reasonably prudent skier would not have elected to circumvent the snow mount in either the manner or the direction he undertook. It was reasonable to infer that the plaintiff was travelling quickly, was looking for exhilaration and was reckless as he approached an unidentified and unknown mass of snow ahead of him. He was travelling too fast and too close to the hazard to be able to stop or turn away safely.
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