Paper Waivers vs. Electronic Waivers
Have we finally gone paperless on this issue? In these unprecedented times, the paper waiver is being ushered ever further out the door. Pre-pandemic, many organizations were already on the paperless route. In this blog post, we explain the role and enforceability of electronic waivers.
Before COVID-19, we routinely worried about injuries sustained during sporting activities through either active participation or incidental spectatorship. Typically, an organization’s liability insurance would cover claims brought by the innocent bystander due to injuries sustained as a consequence of the sporting activities as well as physical injuries to participants. Alongside insurance, organizations used waivers as the other risk management technique to further protect themselves from claims for injuries sustained by actual participants while participating in sporting activities.
Enter COVID-19. Where organizations could once rely on their liability insurance to protect them from liability claims, there are now additional considerations. Insurance will still likely cover claims due to physical injuries as we typically imagine them, but now, illness and contagious disease are now almost always excluded. Exclusions to insurance policies are popping up so regularly that we are now crystal clear: if a participant, a spectator, or anyone else at your event/activity or in your facility contracts COVID-19, insurance will not cover any related legal defence costs or required payments for claims brought against your organization. This includes medical expenses, damages for negligence, legal costs, and any other expense that can be imagined.
So where do waivers come in? I have seen a vast number of waivers, as you can imagine. Not only in my practice, but in real life. I do not think many people grasp the sheer volume of waivers they agree to in an average year. That app you downloaded on your phone? The website you visited to browse information or do some shopping? They all have terms of service and privacy policies. It is common practice for websites to not require users to read their terms of service in order to use the website. Yet, by simply visiting the website, you have agreed to their terms of service without reading or signing a thing. Recently I was drafting terms of service for an app, and my teenage son remarked that this was cool (which I loved because how often do teenagers think my work is cool?) but then asked whether this would be the part of the app that everyone scrolls through quickly and clicks their agreement to but doesn’t ever read? Ouch! But he is absolutely right. We live in a world where we just want to click through and get to the end so that we can do what it is we came to do; at our own peril.
The electronic waiver, or e-waiver, has done many favours for organizations. Besides being much easier to store, we are now able to ensure various aspects that are vital to your waiver being upheld in a court of law. They are:
- The participant has adequate time to read the waiver.
- The user does not feel pressured to sign the waiver. If an e-waiver is being reviewed on the user’s own time, they are much less likely to feel pressured than they would if there is a long line of other participants behind them waiting to sign prior to immediately thereafter engaging in the activity.
- The participant is able to sign the waiver before agreeing to participate. The courts have held that if a user has already agreed to and/or paid for an activity, this might create pressure to sign an associated waiver.
- Inserting checkboxes along the way, and/or spaces to initial, forces the user to read each section and agree to it separately. Courts have held that waivers should draw specific attention to exclusionary clauses and forcing the user to pause assists with this practice.
So what can you do?
- Make sure your waivers are up to date and reviewed in accordance with your insurance policies. If anything is specifically excluded or not included in your coverage, it should be covered in your waivers. Do not forget to include negligence! Insurance policies virtually never cover this. Courts interpret restrictive clauses strictly, therefore be sure to include all possible situations.
- Provide and obtain signed e-waivers well in advance of your activity/event! Besides the benefits of e-waivers listed above, the additional benefit is the reduction in crowding and contact that often results when participants line up to sign paper waivers before entering an event or facility. In the pandemic era where physical distancing is paramount, this cannot be emphasized enough.
- Comply with all laws, by-laws, and recommendations. These can vary between jurisdictions, so verify that you are taking all precautions. This can include enforcing wearing masks on entry (reasonably, of course), checking temperatures of participants, keeping a sign in or trace log (where participants can quickly print their name or initials if the attendance list is known). Also, do not allow spectators if possible. If spectators or guardians accompanying children cannot be avoided, ensure that they sign waivers and trace logs as well.
- Ensure waivers are signed by proper parties on a regular basis! The frequency will depend on the nature of your activities. They should be signed for every event, or for the duration of a season only, in most cases.
Length of Retention
When considering retention, ask yourself what the maximum length of time could be before you might need to rely on that waiver. Generally, claims cannot be brought more than two (2) years from the time they are discovered, which for our purposes, would typically be from the date of an accident or injury. However, there are other considerations. The complicating factor in sport is that typically we see waivers signed once in a season or year, which necessarily extends the retention period past two years from signing. In Ontario and other provinces (BC, SK, NB, NS), there is an “Ultimate Limitation Period”, which extinguishes claims fifteen years from the act or omission that gave rise to the claim, whether it was discovered or discoverable (with certain types of claims exempted). Other jurisdictions range from 10 years (AB) to 30 years (MB, NL), with others having no ultimate limitation period at all.
Again, e-waivers have the advantage here. It is onerous for large organizations or organizations with many participants to store hardcopy waivers for any extended period of time. Keeping waivers for the entire period of time in which claims are theoretically possible ensures that if necessary, you will be able to provide evidence that the claimants waived the right to sue you.
Signature vs E-Signature
I have been asked whether the e-waiver creates a possibility for the argument that the person “signing” is not the person who is waiving liability. I believe this potential exists whether there is a hardcopy or online signature. The fact is, unless a commissioner of oaths has verified the identity of the person signing, there is always the possibility that a participant will deny signing a waiver. Since a waiver is not a sworn document, no witness or oath is necessary. I can tell you it is much more common for a participant to bring a claim and deny having understood or read the waiver instead of denying that they signed it. The courts have not given much credence to this argument, especially when the participant has clearly initialed at points where requested, signed, and dated the waiver.
Zaky v. Skyzone is a case currently before the Ontario Superior Court of Justice. The plaintiff Zaky sued Skyzone for injuries sustained during an accident on a trampoline. Skyzone brought a motion in July 2020 to have the claim dismissed on the basis that the plaintiff signed a waiver. In that case, the waiver was electronic. The judge noted the Electronic Commerce Act provides that a contract may be formed by “touching or clicking an appropriate icon or other place on a computer screen.” Further, the Act explicitly indicates that a contract “is not invalid or unenforceable by reasons only of being in electronic form”. The motion to dismiss was denied because it was unclear whether Skyzone took reasonable steps to bring the waiver terms to the Plaintiff’s attention and therefore the case will proceed to trial. We are watching for the outcome of this case, as the decision could potentially change requirements for waivers in Ontario, for reasons unrelated to the electronic format.
Similarly, in Quilichini v. Wilson’s Greenhouse, a 2017 Saskatchewan Court of Queen’s Bench case, the Plaintiff sued the Defendants for injuries sustained in a go-karting accident despite having completed an electronic waiver. The claim was dismissed because the Plaintiff had waived all claims arising in any way from participation in go-karting. The judge noted that the Saskatchewan Electronic Information and Documents Act makes it clear that agreements to contractual terms can be made by touching or clicking on an appropriately designated icon or place on a computer screen. The court concluded that the plaintiff agreed to the terms in an electronic form after having had the opportunity to read the waiver and liability release on the screen. To quote the decision, “In my opinion, there can be no question but that when the plaintiff clicked ‘I agree’, he was intending to accept and assume responsibility for any possible risk involved and knew he was agreeing to discharge or release the defendants from all claims or liabilities arising, in any way, from his participation.”
All provinces have legislation that allows contract formation via electronic means, such as clicking a checkbox, and specify that these contracts will not be denied legal effect or enforceability simply because they are in electronic form. Most are based on the Uniform Electronic Commerce Act and have similar language, except Quebec (whose legislation is slightly different).
There are different levels at which a waiver can be agreed to: the check box, the text box (in which the user types their name to indicate agreement), an e-signature (commonly seen in emails), and a digital signature. Generally, since a waiver is a contract and not a sworn document, clicking a box to indicate agreement has been upheld as a valid method of acceptance.
COVID-19-Related Litigation and Legislation
As a litigator, I keep an eye on what types of cases are emerging in the wake of COVID-19. The reality is, at least from my perspective, that we will not know the full extent of the impact for many years. I have not to date seen a case where a party has been successfully sued for COVID-19 infection. However, it must be noted that the courts were shut down for several months, and some have still not fully resumed operations.
The BC government has passed a law that bars the commencement or maintenance of a claim for COVID-19-related damages in many circumstances, excepting gross negligence. At the time of this writing, the Ontario government has proposed similar legislation, and the bill has passed its second reading and is before the Standing Committee on Justice Policy. This legislation essentially limits or eliminates liability for some COVID-19-related claims. However, it important to note that this type of legislation and waivers do not prevent litigation, but function as a bar or defence once litigation is commenced.
Enforceability of waivers against minors is a key part of this discussion. As this has been succinctly covered in the recent post by Steve Indig and Kevin Lawrie, I will not go into detail here, except to say that while a guardian can assume risk on behalf of a minor, a guardian cannot waive or limit the right of a minor to sue.
If you would have questions about your waivers or current contracts, feel free to reach out to Michelle Kropp at firstname.lastname@example.org.