Are Liability Waivers Legal?

Generally, Only Known and Accepted Risks Can Be Waived and Unknown Risks, Especially Indirect Risks Not Plain and Obvious, Cannot Be Unintentionally Waived.

Understanding Whether a Liability Waiver Is Legally Enforceable or Just a Bluff

Contract Document Many believe that liability waivers or release forms are undeniably valid; however, in many circumstances a waiver or release may be unenforceable. Furthermore, even when a liability waiver is valid, the rights waived may be very limited held applicable only to risks reasonably foreseeable and capable of being willingly assumed. Accordingly, avoid a presumption that the existence of a liability waiver puts an absolute end to the possibility of liability and potential for successful litigation. There will be situations where a waiver or release will validly apply along with other situations where a waiver or release will be inapplicable.

The Law
Warnings May Waive Rights Only In Specific Circumstances

The Supreme Court of Canada provided an explanation of when rights may be deemed waived within the case of Saskatchewan River Bungalows v. Maritime Life, [1994] 2 S.C.R. 490 wherein it was said:

Waiver occurs where one party to a contract or to proceedings takes steps which amount to foregoing reliance on some known right or defect in the performance of the other party: Mitchell and Jewell Ltd.  v. Canadian Pacific Express Co., [1974] 3 W.W.R.  259 (Alta.  S.C.A.D.); Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R.  61 (waiver of a limitation period).  The elements of waiver were described in Federal Business Development Bank v. Steinbock Development Corp.  (1983), 42 A.R.  231 (C.A.), cited by both parties to the present appeal (Laycraft J.A.  for the court, at p.  236):

The essentials of waiver are that full knowledge of the deficiency which might be relied upon and the unequivocal intention to relinquish the right to rely on it.  That intention may be expressed in a formal legal document, it may be expressed in some informal fashion or it may be inferred from conduct.  In whatever fashion the intention to relinquish the right is communicated; however, the conscious intention to do so is what must be ascertained.

Waiver will be found only where the evidence demonstrates that the party waiver had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them.  The creation of such a stringent test is justified since no consideration moves from the party in whose favour a waiver operates.  An overly broad interpretation of waiver would undermine the requirement of contractual consideration.

Signed Waiver

A liability waiver can arise in two ways.  The liability waiver may be imposed by posted signage, by terms written upon a ticket, or by some other informal manner.  Generally, such an imposed and informal method of liability waiver is weaker than when a liability waiver is actually contained within a signed document for which the person who signs the liability waiver document also received a reasonable opportunity to review the document prior to signing.  With respect to the stronger nature of a signed liability waiver document, such was well explained within the case of Arksey v. Sky Zone Toronto, 2021 ONSC 4594 wherein it was said:

[20]  This case involves an explicit waiver signed by the plaintiff. There are other cases considering liability where there are unsigned waiver terms printed on a ticket or buried elsewhere in a patron’s dealings with the defendant. That is not the case here.

[21]  A person who actually signs a waiver will be presumed to have intended to be bound by it. Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII) at para. 40.

[22]  The British Columbia Court of Appeal also made the point that knowledge of the agreed terms is presumed. It is generally no excuse to say that one did not read the contract she signed.

[79] In cases involving signed contracts, knowledge of what the contract contained is presumed. Consequently, as pointed out in Karroll at p 164, as a matter of contract law, "the rule that a party proffering for signature an exclusion of liability must take reasonable steps to bring it to the other party's attention" is "a limited principle, applicable only in special circumstances." Accordingly, it is generally no excuse to say, "Although I signed the contract, I did not read it."

[23]  There is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. If a plaintiff is provided with an opportunity to read the agreement, it is up to her to choose whether to read it or not.

[24]  Firestone J (as he then was) expressed this principle in Clarke v. Alaska Canopy Adventures LLC, 2014 ONSC 6816, as follows:

24 The onus is not, as Clarke alleges, on Alaska Canopy to ensure that Clarke has read and understood the provisions of the contract that she voluntarily signs. In Niedermeyer v. Charlton, 2014 BCCA 165 (B.C. C.A.) at para. 29, citing an earlier passage by McLachlin C.J.S.C.B.C., as she then was, in Karroll v. Silver Star Mountain Resorts Ltd. (1988), 1988 CanLII 3094 (BC SC), 33 B.C.L.R. (2d) 160 (B.C. S.C.), the court states:

... there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question that such an obligation arises. [Emphasis in original.]

What Is Acceptance of Risk?

Another legal consideration involves whether a risk is truly an accepted risk rather than simply a known risk.  Further, legal considerations involve whether the knowledge or awareness of a risk relates to a risk inherent in an activity, a risk inherent in nature, or a risk created by human intervention.

What Is a Risk Willingly Assumed?

Generally, even where a person received repeated warning of a risk and continued to voluntarily engage in an inherently dangerous activity, only the very inherent risk will likely be deemed waived.  Corollary risks, especially those risks arising from the direct negligence of others, remains without being subject to the waiver.

The law in this regard can be somewhat complex as various doctrines as well as statute laws may be applicable and therefore intertwined.  A decision involving various factors was well stated in Van Staveren v. Coachlite Roller Gardens Inc.2012 ONSC 5941 wherein it was said:

[58] The evidence of the defendant is that there were signs posted in the premises which stated “Skate at your own risk”.  Neither the plaintiff nor his wife had any recollection of seeing these signs.  However, both acknowledged that falling is an inherent risk of roller skating.  I accept this as a basic principle.  Like many other activities in life, roller skating does have inherent risk.  People who engage in these activities understand and accept those risks.  However, I do not believe that this extends to an acceptance of risks caused by the negligence of the defendant in creating a hazardous condition on the skating floor.

[59] As noted by the Supreme Court of Canada in the Waldick decision, supra, the application of the volenti defence as set out in Section 4(1) of the Occupier’s Liability Act will not shield a defendant from liability unless there is clear evidence that the plaintiff was consenting to accept the legal risk and waive any legal rights that might arise from the negligence of the defendant.  There was no evidence during this trial to support such a conclusion.  I therefore conclude that the plaintiff did not accept the risk of a hazardous condition being created by the defendant on the skating floor, and Section 4(1) does not afford a defence to the defendant in this action.

Statutory Obligation, duty of care

Furthermore, there may be a strict duty of care imposed by statutes, such as is found within the Occupier's Liability ActR.S.O. 1990, c. O.2, wherein those with ownership or control of premises or the activities occurring upon premises, are subject to a reverse onus or near reverse onus, of having to demonstrate that an incident arose without the negligence of the party with ownership or control.  As was decided by the court in the Van Staveren case above, the voluntary participation by Van Staveren in an inherently risky activity of which Van Staveren was warned was insufficient to waive liability against Coachlite when Coachlite negligently failed to maintain the premises.  Specifically, the Occupier's Liability Act states:

Common law duty of care superseded

2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

Risks willingly assumed

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Waiving Negligence Liability

Generally, a business or person who negligently causes injury or damage is unable to use a broadly written liability waiver to absolve of the liability; and accordingly, a liability waiver that purports as being applicable to negligent conduct must reasonably state, with a reasonable degree of specificity, examples of the negligent conduct to which the liability waiver is to apply.  This requirement to identify specific negligent conduct was explained in Arksey where it was stated:

[46]  For example, the use of the word “negligence” on its own is often insufficient to find that the plaintiff has waived all possible forms of negligently caused injury. The words must be construed to determine if the parties can reasonably be said to have agreed on the exclusion of liability in the context of the case at hand.

[47]  In Ochoa v. Canadian Mountain Holidays Inc., [1996] B.C.J. No. 2026, at para. 136, the court held:

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. On that basis, I find that the waiver in this case, signed by Mr. Ochoa, meets that test. First, the waiver format and substance, if read carefully, can reasonably be understood to include a waiver of liability for negligence or a want of due care of CMH and its staff in its conduct, particularly in relation to assessing avalanche hazard. Such a risk is dealt with specifically and generally as a risk contemplated by the waiver. Second, the format of the waiver is not at all deceptive or difficult to read. While some of the print is small, it puts in bold letters several attention-getting words of warning that legal rights are at issue. Finally, CMH takes several steps to ensure that each of its guests is aware, well in advance of the trip, of the requirement to sign a waiver as a condition of heli-skiing with CMH and that CMH considers the document important. These steps include requiring that the signature for the waiver be witnessed separately from the application form which accompanied it. These steps add to the conclusion that the meaning of the waiver is neither obscure nor unreasonable. The very type of conduct alleged to be negligent in this action is specifically contemplated by the words of the waiver. I have no hesitation in finding that the negligence alleged in this action is covered by the waiver. [Emphasis added.]

Related Volenti Non Fit Injuria Defence

The legal doctrine known in Latin as volenti non fit injuria (referred to simply as volenti) is a defence in negligence law and is therefore technically unrelated to contract law waiver of liability; however, the use of volenti as a defence to allegations of negligence liability often appears alongside the contractual waiver of liability defence.  The volenti defence is used when suggesting that the injured party voluntarily assumed the risk of injury where the risk of injury is inherent in the activity.  As such, volenti as a general doctrine would generally apply to the risks inherent in a variety of activities such as the activity of roller skating outlined in the Van Staveren case above.  Of course, as in Van Staveren above, where an additional unassumed risk becomes involved, such as a wet floor due to an improperly maintained roof, successful use of the volenti defence may be difficult.

Indeed, more than 125 years ago, the Supreme Court of Canada stated that the volenti defence fails to apply where negligence of the defendant caused the injury whereas in Canada Atlantic Railway Co. v. Hurdman, 1895 CanLII 36 (SCC), 25 SCR 205 it was said:

The law, as now settled by the judgment of the House of Lords in Smith v. Baker, is that the maxim volenti non fit injuria has no application in the case of injuries occasioned by the negligent conduct of the defendants.

Summary Comment

The bottom line is simply that if you have suffered injury or harm and someone tries to suggest that you waived your legal rights, you should obtain legal advice as a full and complete waiver of liability rarely occurs!  Get a qualified legal opinion before giving up and simply accepting that your legal rights are lost.

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