The ubiquitous waiver of liability seems to have pervaded all levels of organized recreational and athletic activities. It has cause the mere pen to rise to preeminence as a piece of sporting equipment. Without signing a waiver, you are unlikely to be allowed to participate in any activity outside of your own backyard. Should the pen really be mightier than the sword?
The reality is that many of the waivers proffered by organized recreational and athletic activity providers would not be enforced by Ontario courts. These courts have a history of approaching waivers with great caution.
In 2008, two trial courts decisions deviated from this long-standing trend. In Cejvan v. Blue Mountain Resorts Ltd., [2008] O.J. No. 5442, a snowboarder was denied compensation for his injuries when he struck snow-covered steel pipes on a groomed run, In Isildar v. Kanata Diving Supply, [2008] O.J. No. 2406, the dependants of a man killed during a scuba diving instructional course were denied damages for their loss of the deceased's care, guidance, and companionship. Notwithstanding findings of negligence in both cases, damages were denied because of waivers.
Given the weight of earlier case law and subsequent decisions, Cejvan and Isildar are more likely aberrations than a shift in judicial perspective and policy.
Almost all types of organized recreational and athletic activities have some degree of inherent danger. Professional sports provide a constant and vivid stream of reminders. Consider the Alpine Ski Team which has decimated by season-ending injuries to four of its top performers just weeks before the 2010 Winter Olympics. In the National Hockey league, the current season has seen an unprecedented number of head injuries. If these athletes-primed, trained, and fully equipped – cannot avoid injury, the amateur and recreational participant ought to beware and be concerned about the effect of waivers they are signing.
Notwithstanding the risks, few, if any, amateur participants in sports pay attention to the waivers they sign before engaging in activities. Any following injury they exclaim to their lawyers: "I didn't read it. It didn't expect it to matter."
There lies the problem for the law: the gap between what the participant believes he or she is waving (if anything), and the activities for which the provider is trying to escape liability. To defeat the waiver, a plaintiff must focus on this gap and prove it to the court.
It remains clear that our courts will generally not allow a waiver to stand in the way of a plaintiff's right to compensation for injury. A waiver is worthless unless the court is convinced the participant has truly understood and assented to its terms. This is a principle affirmed by the Supreme Court of Canada in Crocker v. Sunsance Nothwest Resourts Lts., [1988] S.C.J. No. 60, and the Ontario Court of Appeal in Tilden Rent-A-Car Co. v. Clendenning, [1978] O.J. No. 3260.
In most cases, a participant would not knowingly waive liability for hazards created and perpetuated by the activity provider's own negligence. It is common sense that when someone signs a waiver, absent extenuating explanation or circumstances, they are only waiving liability for injuries incidental to the activity they are participating in.Cejvan and Isildar aside, Ontario courts have consistently ruled that waivers purported to waive "any and all liability" do not include hazards created by the activity provider itself (see Cudmore Estate v. Deep Three Enterprises Etd., [1991] O.J. No. 1453, Pascoe v. Ball Hockey Ontario inc., [2005] O.J. No. 520, and Downs v. Georgian College, [2008] O.J. No. 4879).
In September 2009, when Gallant v. Fanshawe College, [2009] O.J. No. 3977 was released, Tilden and Cudmore were affirmed. Ontario's track record of taking a strict view of waivers was restored.
In Gallant, the plaintiff was injured during a motorcycle riding course when her motorcycle struck a concrete barrier. A waiver has been signed prior to beginning the course. A jury found the defendant negligent for failing to remove the concrete barrier. When considering whether the waiver was a bar to the action, Justice Harrison Arrell found that where the activity has risks and dangerous, and the defendant wishes to absolve itself of liability for its own negligence: (1) the clearest language is required; (2) the defendant must ensure the plaintiff understands the legal effect of the waiver; and (3) only in the rarest circumstances will a plaintiff genuinely consent to accept the risk of the defendant's negligence.
Justice Arrell determined the waiver was not a bar to the action. He found the defendant's intention to protect itself from liability for its own negligence was not sufficiently brought to the plaintiff's attention. The defendant had failed to prove the plaintiff was given an explanation, aside from her own reading, of what the waiver would protect the defendant from, or of what the implications were of signing the waiver.
Gallant is a well-reasoned and sensible return to a rational approach to waivers. There is a proper place for waivers in the world of organized recreational and athletic activities. For activity providers, without some reasonable expectation of the level of risk, such activities would be impossible to sustain. It follows that where the activity provider properly and fully educates the participant as to what liability is being waived, that provider ought to be afforded the protection of the waiver. But where the terms of the waiver are not expressly understood by the participant, liability should properly remain with the activity provider.
Source: Oatley, R., Sinclair., D., "Court Waiver on Recreational Liability Releases" The Lawyers Weekly (April 30, 2010).
