Written By: Nicole Fielding and Leah Burlock, Student-at-Law
It is likely that we all have signed a waiver at some point in our lives. Many recreational activities require the signing of a waiver in order to participate, including skiing, rock climbing, and group exercise classes. But what effect do these waivers have, and how enforceable are they?
To waive means to give up a right. A waiver document is intended to be evidence of this act. Waiver documents like the ones often discussed in the context of personal injury matters are intended to be legally binding contracts in which you waive your right to bring a lawsuit against an individual or organization for any injuries or losses sustained during a subject activity or event.
The law surrounding the enforceability of activity waivers in Ontario is constantly evolving. Often, people sign waivers without understanding their scope, what they are agreeing to, or the rights they may be giving up. As a result, whether or not a court will uphold and enforce a waiver barring a lawsuit cannot be predicted with absolute certainty. With this being said, signing a waiver may not necessarily result in a person being denied a remedy if they have been injured as a result of someone else’s negligence.
There are certain elements that a waiver must include in order for a waiver to be deemed valid. As a general rule of thumb, the waiver must use language that refers to the circumstances of the accident, and the waiver must exclude liability for risks or injuries caused by the organization or individual’s negligence. In addition, the organization or individual seeking benefit from the waiver must take reasonable steps to bring the waiver’s clauses and provisions to the attention of the signing party so that its full effect is understood. If a person has been made aware of the full extent of the waiver and decides to sign, the exclusion provisions contained within it may be effective and valid.
There are, however, scenarios in which a signed waiver may not be enforced by the courts. The exact wording and the circumstances surrounding the signing of the waiver are important to consider. The following are factors that courts have considered when determining if a waiver is enforceable:
- The degree of experience the person has with the activity.
- The person’s familiarity with the facility or locale. 
- Whether the person had the capacity to understand what the waiver
- The circumstances around how and when the waiver wording was presented to the person. 
- Whether the person had an opportunity to read and understand the waiver or exclusionary clause.
- How clear or ambiguous the waiver language is.
Courts in Ontario have decided that certain waivers should not be enforced or recognized where the individual or facility seeking benefit from the waiver did not take the reasonable steps and precautions to ensure the safety of the participants.
The facts of the injury suffered or context in which the injuring incident occurred are also important. A waiver may not be enforceable if the injury sustained by the individual arose from an incident that falls outside of the scope of the waiver. For example, if a plaintiff signed a waiver for a skiing activity, but slipped and fell on a substance inside the ski lodge, this will likely be outside of the scope of waiver, and the individual will still be entitled to bring a lawsuit for that particular incident.
Activity waivers can also often include additional broad provisions which extend beyond simply waiving the right to bring a lawsuit against an organization in the event of injury. For example, some waiver contracts may include onerous indemnity clauses, which if enforced, can place significant financial hardship on the individual signing the waiver. Our firm was recently successful in defending a summary judgment motion involving an onerous indemnity clause found in an Iron Man race waiver. For this decision, click here.
The enforceability of a waiver will depend on the specific facts of the case, and case law in Ontario continues to evolve. Generally speaking, if a waiver’s subject matter is unclear, contains clauses that go beyond the scope of the waiver, or an individual signing was not given an opportunity to read and understand the contents, the waiver will not stand in Ontario’s courts.
For more information on the scope of liability waivers, please see the following article: “Resort Waivers: Does a Plaintiff Waive His or Her Rights Entirely?”