Making Waives

Have you ever signed a waiver and thought “I wonder if this thing will actually work if the party I’m giving it to tries to use it against me?”  Some people think that a waiver will bind them every time and in every circumstance, while others will tell you that waivers are “not worth the paper they’re written on”.  The truth lies somewhere in the middle of those two views.

A waiver is a contract that a person enters into in exchange for being allowed to engage in a certain activity.  Usually a person is required to sign a waiver in situations where there is some inherent risk associated with participating in the activity.  Put very simply, the person signing the waiver is agreeing to voluntarily assume the risks associated with participating in the activity in question.  This means that the person signing the waiver is saying that they understand the risks involved in participating in the activity, and that they agree to assume those risks.  Also, most waivers include a release, which is a promise by the person signing it that they will not sue the other party or claim compensation from the other party in the event of injury, illness or death resulting from participation in the activity.  That’s why it is called a “release” – because the person signing it is releasing the other party from liability.

This means that if a waiver is upheld by a court in a worst-case scenario, then the person who signed it (or worse yet, their estate) will be left with no recourse at all, even though they have sustained some catastrophic or life-changing injury, illness or worse.  That seems like an unfair result in some circumstances.  On the other hand, if a waiver is judged by a court to be worthless and not binding, then how is that fair to the party that took great care to craft the waiver and explain the risks to the participant before they signed it?  How can the party that had the waiver signed possibly protect itself if the waiver is not enforceable?

This is a challenging balancing act that the courts have to engage in, and as you can imagine, the enforceability of a waiver will depend on a number of factors and the specific facts of each case.  For this reason, the law concerning the enforceability of waivers in Ontario is constantly evolving.  Having said that, some of the more important factors that the courts will consider are the following:

  • Where did the injury or loss occur?  If it occurred on the premises of the party seeking to enforce the waiver, then the Occupiers’ Liability Act (Ontario) will come into play, because that Act governs the liability of a party to others that it invites onto its premises.  The Occupiers’ Liability Act (Ontario) could have a dramatic effect on whether a waiver is enforceable.  If, on the other hand, the injury or loss occurred somewhere else, then the Consumer Protection Act, 2002 (Ontario) could influence the enforceability of a waiver.
  • Is the language in the waiver clear and unambiguous?  If the language in the waiver is overly complicated, convoluted or unclear, or if it is too general or contradicts itself, then that will work against the waiver’s enforceability.  The courts want to see a waiver that is clear, clean and straightforward, and that is readily understandable by the average person.
  • Did the party seeking to enforce the waiver review it with, and explain it to, the person signing the waiver?  The party seeking to enforce the waiver must ensure that in every instance, the release and waiver provisions are specifically brought to the signing party’s attention and explained to the signing party before they sign it, and before they engage in the activity in question.  The person signing the waiver must be given ample time and opportunity to read and understand the waiver and any release language.  It is extremely important that the signing party acknowledge the waiver and release so that the other party can, if necessary, prove that the release and waiver provisions were brought to their attention and clearly explained to them prior to their signing of it.  And the signing party must also be capable of understanding the waiver in the first place.  If the signing party can prove that they didn’t know about the waiver, that the important terms of the waiver were not properly explained to them or brought to their attention, or that they didn’t understand the waiver prior to signing it, then the court might strike down the release and waiver.
  • Did the party seeking to enforce the waiver take reasonable steps and precautions to ensure the safety of the person that signed the waiver?  Even if the waiver is clearly worded and was properly explained to the signing party before they signed it, the court might not uphold the waiver if the party seeking to enforce the waiver didn’t take the appropriate safety precautions, or didn’t follow the proper or accepted safety protocols, that it reasonably should have to make sure that the person who engaged in the activity was reasonably safe in doing so.
  • How bad is the injury or loss?  The facts of the injury suffered, and the context in which the injuring incident occurred, will affect the enforceability of a waiver and release. A waiver might not be enforceable if the injury sustained arose from an incident or loss that falls outside of the scope of the waiver.  And if the injury or loss is particularly serious, the courts may shy away from enforcing the waiver simply because the court may not want to deny the injured person the right to make a claim against the other party in such circumstances.

So the bottom line with respect to waivers is this:  A release and waiver should never be considered to provide absolute or guaranteed protection to one’s business in the event of injury or loss.  Even if properly and clearly worded, a waiver and release may not offer total protection in every situation or circumstance.  The Canadian courts have consistently held that a waiver, release or indemnity, no matter how strong, may not be effective to shield the party seeking to enforce the waiver in every instance or circumstance. Put plainly, no release will provide absolute or guaranteed protection to the party seeking to enforce the waiver, and as such, one should not assume that a waiver will be effective to protect one’s business in every case or situation.

Business owners should also keep in mind that one’s business is liable to be sued at any time, and that having a signed waiver and release in place simply helps one to assert one’s assumption of risk defense.  A waiver will not stop or prevent a lawsuit, even if the lawsuit is a weak one, but it can potentially assist a business owner in defending its position later on if it ever has to defend a claim.

Also, a business owner would do well to review the insurance coverage that it has in place to protect its business, in order to ensure that appropriate insurance coverage is in place in the event that a waiver and release is not effective to protect it.  And in addition, even if a business owner uses a waiver, it should always have good risk management policies and practices in place.  These additional precautions can only help in the uncertain world of waivers.

Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website.  Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.