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Kaelem Moniz, for Sport Law
Have you ever been ziplining? Gone to a trampoline park? Or even played in an amateur sports league? If so, there is a good chance that you have, at some point, signed a waiver of liability. If you represent a sporting organization, you may even use a waiver or are considering doing so.
A waiver of liability is a document outlines the risks that participants are willing to accept. The purpose of waivers is to absolve organizations of potential liability and provides organizations an opportunity to demonstrate their legal responsibility, when used properly. As with any legal document, there is a risk that waivers will not be upheld in court and expose the organization to liability and the payment of damages.
Beyond smart legal practice, the use of waivers signals your organization’s commitment to a safe environment. Consider your risk management efforts, including requiring waivers, a reflection of your values. It’s not only the right thing to do, it’s the smart thing.
In this blog, we outline 10 guidelines that will help you understand some steps to support the legal enforcement of waivers. This advice can make the difference between protection from legal liability in the case of accidents, or loss for your organization.
So What is a “Waiver” Anyway?
Waivers are often misunderstood. Unlike “Assumption of Risk” documents, waivers do not just have participants accept physical risks of participation (risks inherent to the activity at hand) but also legal risks, the risks of damages occurring at the organization's fault or negligence.
This is a significant distinction. For instance, let’s go back to our ziplining example. You may feel comfortable accepting risks of cuts and scrapes by grazing an especially-high branch, or accidentally tripping on the ladder. But, would you feel comfortable accepting the risk that your instructor might give you faulty equipment, or that they might improperly send you down the line without first checking for other participants?
Waivers of liability ask participants to assume such physical and legal risks. Such was the case in Loychuk vs. Cougar Mountain Adventures [2012] in British Columbia. The two plaintiffs, Deanna Loychuk and Danielle Weestgeest, embarked on their ziplining adventure to celebrate a birthday (Loychuk) and a wedding (Weestgeest). Loychuk was sent down the zipline before Weestgeest and she stopped unexpectedly. Their guide, not seeing Loychuk dangling halfway down the line, sent Weestgeest immediately afterward. Weestgeest collided with Loychuk, resulting in significant physical injury. The courts found that the sole cause of the accident was negligence on the part of Cougar Mountain Adventures. However, Cougar Mountain’s waiver sufficiently covered their negligence, and so the plaintiffs failed in their attempt to win any damages.
Many organizations like Cougar Mountain use waivers of liability to maximize their protection and minimize legal liability. Many waivers, however, have recently failed on technicalities, extenuating circumstances, or weaknesses inherent to the document itself.Over the past 20 years, Canadian courts have begun to favour consumers over organizations. Gone are the days when fine print could excuse your organization. To paraphrase one 2020 court decision, the more onerous the waiver terms, the more explicit they must be.
So, in the advent of the consumer-centric world, here are some of the most important guidelines to maximize the potential enforceability of your waiver in court. Will your waiver succeed like Loychuk or fail like others mentioned later in this article? Adherence to these guidelines may make all the difference.
The defining feature of a waiver of liability is the exclusion of negligence, as mentioned earlier. Without mention of the word “negligence,” the waiver is but an Assumption of Risk document, granting your organization far fewer protections (if successfully upheld).
Negligence is the failure to take reasonable care causing injury or damage to a party (individual, group, or organization). While physical risks are those risks reasonably inherent to the activity, legal risks involve mistakes or omissions made by your organization, where your organization is at fault for negative consequences. Of course, Assumption of Risk documents typically hold up better in court (as educational tools) but provide no waiver of liability for any risk that is not inherent or foreseeable in the activity. Choose wisely between an Assumption of Risk document and a waiver of liability for your organization.
This seems self-explanatory, and yet so many organizations neglect this ever-important step. Waivers must be their own document – they cannot be on the back of others, or attached to longer documents, such as registration, medical or image consent forms.
In the British Columbia decision of Arndt vs. the Ruskin Slo Pitch Association [2011] a softball player (Danielle Arndt), was involved an accident where she stepped in a hole on the playing field while tracking a fly ball, injuring herself. She had signed a waiver – but it was placed on the back of a team roster which she assumed she had to sign for gameplay purposes. Unaware of the waiver text on the back, she signed reasonably oblivious to the risks she had just accepted and the waiver of liability. Consequently, the waiver was thrown out in court, and the defendant was made liable for damages. Now that it has entered legal precedent, do not make the same mistake as Ruskin Slo Pitch – make your waiver distinct and standalone and ensure the person providing the indemnification signs or executes the waiver document!
Your organization has unique risks and potential consequences. Template waivers taken off the internet may not be up to date with recent case law or might not be adequate for the legal standards of your province or territory.
Copying a waiver without modification to your circumstances is like looking over your schoolmate’s shoulder during a math exam. Somebody else determines the quality of your work, and who knows if they are doing it correctly? Be conscious of the party(s) being indemnified, the description of risks, the waiver of liability and indemnification, and the party(s) acknowledging and executing the document.
If a participant is not the age of majority in their province/territory, they are also unable to sign a waiver of liability. Moreover, parents/guardians are unable to sign waivers on their child/ward’s behalf. Parents and guardians are only allowed to enter into contracts or agreements for minors if it is to their benefit. A contract as onerous as a waiver of liability is not construed to be a benefit of the child.
In these circumstances, consider using an Assumption of Risk document. As mentioned earlier, (see Guideline #1) these documents function just like waivers but without the all-important mention of negligence, and thus, without protection for legal risks. These agreements are educational tools, forewarning participants of the physical risks they are accepting and potential consequences. They show (legally) that you have taken reasonable steps to inform participants of the risks involved in the activity, and by signing it, participants have agreed to not hold you responsible for injuries or losses relating directly to these risks inherent to the activity.
Time-specific waivers only cover the specified period, and nothing beyond then. This was affirmed in Cooper vs. Blackwell [2017], a regrettable instance of good business practice, gone bad.
The defendant, Derrick Blackwell, operated Wisteria Guiding, a backwoods guiding company facilitating individualized hiking trips in Northern British Columbia. A loyal client, Jeffrey Cooper, purchased a guided Grizzly Bear hunt expedition in the Autumn of 2013. Cooper signed a waiver of liability covering all negligence within the time duration of the trip. Unfortunately for Cooper and Blackwell, their hunt was unsuccessful. In the interest of good business, Blackwell offered to take Cooper back on another trip the following Spring, free of charge.
On this subsequent trip, Cooper was accidentally shot and killed by his guide. His widow (the plaintiff) sued Blackwell for damages, given that the second trip fell beyond the waiver window. The court agreed, and litigation was allowed to proceed. Thus, our recommendation is to not include time specification in the waiver.
It must also be noted that waivers are only sufficient protection for those individuals or organizations listed explicitly as indemnified parties. It is enough not to name individuals of an organization (instead using broader classes such as “staff, coaches, players” etc.), but they must be mentioned and specifically indemnified.
In Peter vs. Soares [2019], the plaintiff’s claim was allowed to reach trial because the damages he sustained were allegedly caused by different parties that were listed in the waiver he signed. It is crucial to be specific, but also general – specific enough to mention every potential party you wish to absolve from legal risk, yet general enough to provide all individuals who could be a party, coverage.
Essentially, do not mention “Coach John Doe and Coach Jane Doe,” say “all coaches.”
Seems self-evident, no?
Enter Zaky vs. 2285771 Ontario Inc. [2020]. The plaintiff, Rafik Zaky, fractured his spine while attempting a backflip at Sky Zone, a trampoline park operated by the aforementioned corporation.
Like all guests, Zaky signed an electronic waiver at a kiosk before his Sky Zone experience. The waiver mentioned “negligence” explicitly, and the court agreed that, in and of itself, it was enforceable, with no prejudice against it given its electronic nature. However, the court still found in favour of the plaintiff, referencing the inadequate amount of time Zaky was given to read and understand the waiver. A Sky Zone employee allegedly told Zaky to sign the waiver “quick,” or he would lose his jump time. Zaky “walked over to a kiosk with two computer touch screens, waited for [his] turn, typed in [his] personal information, scrolled to the end of a lengthy complex document and [he] believe[s] [he] pressed an ‘Agree’ button on the last page.” A waiver is an onerous document – participants should be given enough time to read, comprehend and voluntarily execute it.
A successful waiver was enforced in Arif vs. Li [2016]. In this instance, the plaintiff (Mohammed Siddeeq Arif) sustained an injury while rock-climbing at Rattlesnake Point Conservation Area just outside of Milton, Ontario. Regardless of whether the defendant, (operating as “Zen Climb”) was negligent, the defendant had provided a waiver in many mediums such that sufficient time was provided to read and understand it.
Just as with Sky Zone’s waiver, the waiver of liability for negligence was included – but unlike in Zaky, Arif had completed an online waiver the night before (under no time constraint), had received a print copy on the day of the event and had his guide explain the waiver further in person, before climbing. By providing Arif enough time to read and understand the terms of the waiver, it was enforced in court, and Arif’s claim was dismissed. If a waiver is to be enforceable, time is on your side.
Much of recent case law involving the enforceability of waivers has involved, or been synonymous to, the test set out in Karroll v. Silver Star Mountain Resorts Ltd. [1988], decided by Justice Beverley McLachlan (future Chief Justice of the Supreme Court of Canada), and since cited in Supreme Court decisions. Most relevant, Justice McLachlan decided that a waiver can be made invalid despite actions or contents if the signatory signs by mistake (called the non est factum argument).
If the signatory can show in court that they did not understand a waiver (reasonably) before signing, due to weaknesses inherent to the waiver document, it may not hold up. It is thus critical that your waiver is easy to understand.
In Apps v. Grouse Mountain Resorts Ltd. [2020], the court cited Karoll and found that “the more onerous the exclusion clause the more explicit the notice must be” (the more serious the waiver’s implications, the more obvious its terms should be made). Further, the monotone nature of the waiver in Zaky was criticized by the court, emphasizing the need for greater diversity in formatting (bolding, italics, underlining or even all three).
Ditch the fine print! Go for bold.
Damages sustained by employees of your organization providing services under the terms of their employment are your liability, under public policy. Waivers of liability signed by employees are unenforceable.
Fleming v. Massey et al. [2016], an Ontario case since cited nationwide, affirms this reality, The appellant (the plaintiff, as he appealed the decision after the first verdict), Derek Fleming, was asked to fill in as race director for a Go Karting event, where a traveling Go Kart subsequently collided with him. While the initial court found that Fleming was volunteering during the race (and thus not protected to the same extent), the Ontario Court of Appeal found that characterizing Fleming’s work as volunteer work would impact the objective of Ontario’s Workplace Safety and Insurance Act (WSIA), which is to “to ensure that injured workers have access to compensation.” The WSIA, while Ontario-specific, has many close inter-provincial counterparts, and our interpretation is that waivers signed by employees acting under the terms of their employment are likely unenforceable.
Today, more than ever, it is critical that waiver signatories can reasonably read and understand the risks they accept. Recent decisions, such as Arif and Loychuk have credited the defendant’s efforts to ensure that each participant understood the terms of the waiver outside of the signed document.
In the case of Trimmelti vs. Blue Mountain Resorts Limited [2015], where the plaintiff (Daniel Trimmelti) was injured while skiing, the court commended the defendant’s efforts to make risks known through bold signs in public areas, warnings on the backs of lift tickets and the “Alpine Responsibility Code” reinforcing good behaviour.
The last guideline is perhaps the most important, if not the most obvious. Organizations are not protected from risks incurred by those who have not signed. Bottom line, everyone must sign.
Organizations using waivers must be consistent in their waiver management process. For instance, all participants must sign the waiver in advance of participation. If there are instances where this is impossible, such as with minors, a modified Assumption of Risk document should be provided instead. If a safety culture through waivers is encouraged (also accepting their vital role as an educational document), they should be encouraged for all participants.
Conclusion
Today, more than ever, the burden of ensuring that participants have read and understood the terms of a waiver of liability falls on the organization. Making waivers and their terms as clear as possible, for all participants, is critical. Adherence to these guidelines can make waivers a game-changer for your organization.
Sport Law has years of experience helping organizations with their waiver creation, development, and review. To read more on this important topic, check out this previous article If you have any questions about Waivers of Liability or similar documents and how they can effectively serve your organization, please reach out to our team at hello@sportlaw.ca.
