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Lecture Slides:

Welcome to YouCounsel.

We sign waivers all the time: when we go for skiing we sign a waiver; when we go for bowling, when we go for skydiving, when we rent a car – there are so many circumstances and so many activities that we engage in on a daily basis and when we engage in those activities we are required to sign waivers by the providers of those activities / by the suppliers of those activities.  We do this all the time.  What are those waivers? When are they enforceable? When are they not enforceable? That is the topic of today’s lecture.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, then you should talk to a lawyer or a paralegal and if you don’t know one, you should contact the Law Society of Ontario for any referrals.

What are waivers?  They’re also called exclusion clauses (saying same thing).  Essentially what waivers do is it transfers any risks of that activity from the company / from the provider to you and me, the consumer.  Essentially, it takes away the company’s liability for any injuries that you may get because of those activities that you are engaged in.  That’s what a waiver essentially does.  Let’s look at some of the examples of these waivers.

The first example I have is Blue Mountain. If you go on their website you see this exclusion of liability. This is a broad general waiver. It is on their website and if you are on Blue Mountain premises you will see this waiver posted at different spots at the resort.  It is in bold letters – it’s in red and yellow.  The idea is that it is so clear; it is so obvious that you don’t miss it. 

NOTICES TO ALL USERS OF THESE PREMISES AND FACILITIES EXCLUSION OF LIABILITY ASSUMPTION OF RISK AND JURISDICTION

This poster is covering three things: exclusion of liability; assumption of risk and jurisdiction.

PLEASE READ CAREFULLY! THESE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE FOR NEGLIGENCE OR BREACH OF CONTRACT OR TO CLAIM COMPENSATION FOLLOWING AN ACCIDENT. It covers all the potential scenarios that can happen.  It basically says that we have no liability whatsoever.

“As a condition of use of the premises and facilities and your participation in activities on the premises you assume all risk of personal injury, death or property loss resulting from any cause, whatsoever, including negligence breach of contract or breach of any duty of care owed under Occupiers Liability Act on the part of the operator and its employees and representatives.”  

Then at the bottom it says, THE OPERATORS LIABILITY IS EXCLUDED BY THESE CONDITIONS.  Once you have signed this waiver and when you purchase the tickets you are required to sign these waivers and then there are some certain specific waivers with respect to specific activities that may also be applied.  When you go to Blue Mountain website there are waivers for skiing, there’s a waiver for tubing, all kinds of things.  There may be specific waivers for certain activities. This is one waiver that I picked up to show you as an example.

What essentially this waiver does is that any activity that you perform when you go to Blue Mountain, when you purchase a ticket, when you sign the waiver, you cannot, if you are injured and sustain injuries because of that activity, you cannot turn around and then sue Blue Mountain for any liability.

And notice that it includes negligence as well.  If you’re going downhill on a ski slope and you know that it was not maintained properly or there was some debris left (that shouldn’t have been there) and because of that you get injured, you will still not be able to sue.  It covers even negligence.  There is no warranty given to you by the ski resort that they will maintain the premises in perfect condition so you could enjoy your skiing. All the liability, all of the risk is transferred to the user for that one example.

Another example I have chosen is a rental car agreement. This is Budget’s website I picked up and if you notice – and this is typical you will see that in any kind of car rental agreement that this clause or similar clause is there. Clause 14 basically tells you what is the prohibited use of the car that you have rented. And if you operate the car and you follow one of the prohibited uses, then a violation will actually terminate your rental agreement immediately.  “A violation of this paragraph will automatically terminate your rental and is an exclusion to and voids all liability protection and optional services…”. All of these optional insurance that you may have purchased for supplementary liability, for personal accident insurance all of these are void if you engage in the prohibited use of the car.

What is the prohibited use? It is outlined here.  You use or permit the car to be used by anyone other than an authorized driver. And then authorized driver is defined in Paragraph 5.  There are number of activities that are listed here. And which are called prohibited use and if you engage in those activities your rental agreement is immediately void and you will not if you sustain any injuries, you will not be able to sue the rental car company for this.  You can see here that even if you are using a handheld wireless communication device, if you’re operating, for example, your phone or something to communicate (handle wireless device) and then you sustain certain injuries, you will not be able to sue Budget car for that. That’s just an example for you of some of the agreements—that were waivers that we sign on an everyday basis.

When are these waivers enforceable? You’ve signed it and now you want to know whether this waiver is going to be enforced or not. The leading case in this is from the Supreme Court of Canada, called Tercon Contractors Limited v. British Columbia.  It’s a 2010 case. 

That case established a 3-part test in determining the enforceability of a waiver or an exclusion clause. Number one: whether the exclusion clause applies to the circumstances in question. Number two: whether the exclusion clause was unconscionable at the time the contract was formed.  And number three: whether the court should refuse to enforce the waiver because of an overriding public policy.  If any of these conditions are met, the court may decide not to enforce the exclusion clause or the waiver.

We’ll take the first element the circumstances: what the court does in the circumstances case is, the court looks at the specific language of the waiver—the specific circumstances that are covered in that waiver and then looks at the circumstances of the injury and then determines whether that particular circumstance, which caused the injury, was it actually covered in that clause or not. They very thoroughly reviewed the clause to make sure that the clause actually covers the circumstances that are being alleged underlying the injury.

I’ll give you two examples: one in which the court refused to enforce a waiver because it did not cover the circumstances.  One was a person who was on a ski resort and he slipped in the parking lot on ice and got injured. And when the court reviewed the waiver, the waiver only covered injuries from downhill skiing and because the person was not doing downhill skiing, he was just walking in the parking lot and sustained injuries, the court held that the waiver was not enforceable because it did not cover the specific circumstances that led to the injury.

Another example is that a person was injured and this was a person taking a police foundation program at a college and while he was running on a track, he got hit by a basketball hoop and got injured.  The court looked at the specific waiver and the waiver had language something to the effect that injuries or other complications associated with exercise or other physical activity—the waiver was very specific to the act, to the injuries sustained because of engaging in an activity—if you’re running and you pull a muscle or you sustain another injury and you have to go see a doctor that waiver was covering those activities – it did not cover any injuries that a person may sustain because the track was unsafe to run. It did not cover the negligence with respect to how the facility was maintained. It dealt with the injuries arising from the very specific activity itself—the physical activity.  The court held that, no, what is covered in the waiver is something different you did not maintain the track properly, which is completely different.  You could have, if you wanted to, have a clause that provided you no liability or waiver because of negligence in maintaining the track itself, then you could have created a clause like that. But the clause that you’re relying on does not cover it and in that case the court said that it will not enforce the waiver.

The review of the circumstances is the most common way of enforcing the waivers of rejecting the waivers because the court needs to make sure that the person who was injured was that person injured because of those very specific circumstances that are covered in the waivers.

Unconscionability is the second element.  First thing you want to understand about unconscionability is that the clause itself, just because there is a clause that excludes liability that is a waiver clause, does not mean that the clause itself is prima facie unconscionable. No, that’s not unconscionable. It essentially deals with a power imbalance between parties. And what does a power imbalance indicate in cases?  

In case that you go, for example, to Blue Mountain, it is not a power imbalance or not necessarily a power imbalance to say that I’m just an individual, Blue Mountain is a large corporation there is a clear power imbalance. That’s not necessarily how the court will consider it.

What the court will consider it whether you are voluntarily engaging in that risky activity or not. Nobody is asking you necessarily that you’re required to engage in this activity. You can choose. You have chosen to go skiing; you’ve chosen to go skydiving—that is a choice you have made. You are freely engaging in that activity and so there is no power imbalance in that relationship. This is not a situation where because of the significant power of a corporation you are now required to engage in a certain activity. That is how the theme of unconscionability generally would work but unconscionable as I said is the second consideration and if you can show that the waiver was unconscionable then you can claim that the waiver should not be enforced.

The final test is public policy.  A common example that I can give you is that any waivers that are relating to minors.  Generally speaking the public policy suggests that parents cannot give away their minor children’s rights in law (in tort) by signing waivers on their behalf—that is the public policy.  In British Columbia that is the law.  When a parent signs a waiver in British Columbia, on behalf of a child, that waiver is not enforceable.  It is likely that the same will be in Ontario.  Although there aren’t any cases that have specifically dealt with waivers respecting children so far, but that seems to be the public policy.  It is yet to be decided in Ontario.

My kids go to trampoline gyms all the time and we sign these waivers all the time, and if they sustain any injuries, can it be argued that those waivers are not enforceable? Likely, yes. Because that may be a public policy reason to indicate that the right to sue in tort  for children’s injuries cannot be given away by parents, that seems to be the public policy.

What is the conclusion? For a waiver to be enforceable it has to have unambiguous language, it has to be clear, should be easily understood by the consumer as I showed you in the Blue Mountain example.  It was very clear, it was very simple and it said repeatedly that there is no liability whatsoever for anything you do negligence, contract, whatever, we have no duty whatsoever. That’s the theme of that poster.  Does the waiver cover the specific circumstances of the case? That is important. It’s not unconscionable and there’s no public policy concern.

The message that you want to take away is that just because you have signed a waiver do not assume that all waivers are enforceable. There are circumstances (many circumstances) in which waivers may not be enforceable. If you are unsure, I think, this may be one instance where you may want to go see a personal injury lawyer or somebody who has expertise in that area to confirm whether the waiver at the outset is enforceable or not and if it’s not enforceable then regardless of the fact that we have signed the waiver you may still be able to sue for damages.

Thank-you for watching.