There are no shortage of adrenaline-pumping activities to fill your summer. Rock climbing, ziplining, skydiving, whitewater rafting and scuba diving all bring high degrees of excitement – and a certain degree of risk.
Before embarking in any of these activities, as well as winter sports such as skiing and snowboarding, participants are often asked to sign a liability waiver. Agreeing to the conditions typically comes with implications that few people fully consider.
There are usually two components. First, a waiver will warn of all of the bad things that could happen to you, including severe injury and death. The purpose is to inform participants of the inherent risks of the activity and have them acknowledge that they’ve been warned and willingly accept these risks.
Secondly, activity operators will seek a waiver of the legal risks. This means releasing the operator from any legal liability for any claims arising out of any harm that might come to participants, including death.
Typically, this includes a release of any claims that might arise from the negligence or breach of contract by the operator or its employees. This means if participants are harmed – whether due to the inherent risks of the activity or by the negligence or any breach on the part of the operator or its employees – you will have released them from all legal liability.
Arguably, it is reasonable that you should have to assume the inherent risks of these activities if you want to participate. It is less acceptable that the operator should not be held to a reasonable standard of operation. But in the law of contracts, parties can agree to limited liability like this.
You are usually presented with these waivers just before you are about to embark. They are non-negotiable; in other words, you cannot amend them or strike out what you don’t like. If you do, the operator will not let you participate. While you may feel like you are signing under duress, you are not. You have a choice – sign and participate, or don’t participate.
So how enforceable are these waivers? Like the answer to most legal questions, it depends.
It can depend upon the wording of the document and the circumstances of how it was brought to your attention. Because these documents are so one-sided and non-negotiable, judges are often reluctant to enforce them. They will hold the operator’s feet to the fire.
However, several factors will increase the odds that it will be enforced. Is the wording clear? Did the operator clearly explain what you’re getting into? Did participants have time to consider it?
It can also depend on which province you are in. The case law in British Columbia and Alberta discloses that waivers in high-risk activities are most often enforced. In contrast, there is mixed case law in Ontario and Quebec.
There are two recent cases in Ontario in which it has been held that the Consumer Protection Act applies to negate the provisions that limit the operators’ negligence and breach of contract (but only those portions of the waiver). In those cases, the courts held that the operators had to meet the standard provided for in the Act which is that of “reasonably acceptable quality.”
It will also depend on whether you sign something or not. If you sign a waiver, there is a greater chance it will be enforced. Arguing that you did not take the time to read it won’t work as your signature will bind you.
However, if the terms are simply on a sign on the wall or the back of a ticket that state you assume the terms when buying a ticket, the operator will have to demonstrate they adequately brought this to your attention before it will be enforced.
In order to protect yourself and your family, educate yourself on the risks of the particular activity before you sign up. Do your homework on the operator and their safety record. Consider taking lessons from certified instructors. Do any recommended training and conditioning before participating. Obtain and familiarize yourself with any recommended equipment.
The bottom line is you may or may not be able to successfully sue an operator in the event of any injury. But you will be better served if you take whatever steps you can to avoid the injury in the first place.
Peter Cronyn is a partner with Nelligan O’Brien Payne LLP who practices in insurance defence, litigation, intellectual property and personal injury and wrongful death.
Visit: www.nelligan.ca for more information.