Make sure you know what you’re giving up before you sign a liability waiver.
If you’ve ever been skiing, skydiving or a participant in an organized event, at some point you will have been presented with a waiver designed to release the owner or organizer from liability for any injuries you suffer during the activity.
And unless you’re in my line of work as a personal injury lawyer, there’s a good chance you skimmed over the document’s contents before agreeing, if you looked at them at all. But blindly entering a contract like this comes with its own risks, as one Ottawa injury victim recently discovered when a judge concluded that her claim against the organizers of a cycling event was barred by the waiver she signed in advance of the ride.
The cycling event
According to the decision, the plaintiff was taking part in the 2018 GranFondo Ottawa as a volunteer “ride ambassador” when she was injured after coming off her bike while trying to cross a set of railroad tracks on the route.
She had signed a waiver sent by email in the days leading up to the event, which required her to “acknowledge and assume all of the risks of participating” — including a non-exhaustive list of specific hazards that could be caused by issues with the weather, traffic, equipment failures and other riders on the day. The waiver also included language releasing the organizers from liability, even in cases of negligence or gross negligence.
In court, the plaintiff attacked the waiver from several angles, claiming it did not apply to her because she was a volunteer. In any case, it was unenforceable because it had been provided by email without any explanation, she argued, admitting she had not read the document carefully.
However, the judge granted summary judgment in favour of the defendants, noting that the text of the waiver made several specific references to volunteers. The lack of explanation did not affect the enforceability of the waiver, the judge added.
“At its outset, the waiver clearly stated that it should be read carefully and that it had legal consequences that would affect the legal rights of the signor. I find that Ms. Bernier had sufficient time to read the waiver carefully had she chosen to do so. Further, she was already familiar with the waiver, having signed the same document the previous year,” she wrote.
Enforceability of waivers
The Ottawa cycling case aligns strongly with Ontario case law on liability waivers, which suggests that they can and generally will be upheld.
However, some key exceptions to that general rule were spelled out in another Superior Court case from 2020. According to the ruling, waivers may not be enforced when:
- The person signing the waiver was “mistaken as to its nature and character.” For example, where the document was not presented as a waiver, but as something more innocuous, such as a registration form.
- The person signing was induced to do so by active fraud or misrepresentation by the person providing the waiver.
- The individual or organization providing the waiver failed to bring all its terms to the signer’s attention, amounting to misrepresentation by omission. In these circumstances a judge may consider factors such as the presence and content of small print, the length and format of the waiver and the time made available for signers to read and understand the document.
When confronted with a liability waiver, the best thing you can do is read it carefully before committing to sign. Although the law is constantly evolving on the issue, one recurring theme is that the failure to read a waiver before signing is no excuse.
If you’ve been injured after signing a liability waiver, it’s not the end of the story. Apart from the enforceability exceptions mentioned above, it’s also possible that your injuries fell outside the scope of the waiver altogether.
Get a Free Consultation with a Personal Injury Lawyer in Oakville
If you’re unsure whether you have a claim, you should speak with a personal injury lawyer about your situation. Feel free to contact me or another of the experienced personal injury lawyers on the team at Edwards Pollard.
