Signing Your Life Away… The impact of a waiver on your ability to sue

Whether at work or play, waivers have become an ordinary part of life. At the ski hill, the fair, or a hockey game, Canadians must sign waivers before participating in a wide variety of activities and events. We sign waivers everyday for ourselves and for our children. A waiver can significantly limit the right to sue for a personal injury, but is not always enforceable. The courts can use a series of factors to test the enforceability of a waiver. The factors can be grouped into three broad categories:

• The circumstances in which the waiver was signed;
• The person who signed the waiver; and
• The event the waiver was attempting to exclude.

By examining the above factors, one can determine if there is any weakness in a waiver. Where the enforceability of a waiver is being questioned in court, the defendant, the person seeking to rely on the waiver, will have to show the circumstances in which the waiver was signed were appropriate. The defendant will have to show that the plaintiff, or the person who signed the waiver, made a free and informed decision to sign the waiver. The defendant will also have to show that the waiver speaks to the events before the court. These issues have been broken down further below.

What were the circumstances?

Notice is the most important factor to take into account when examining the circumstances in which a waiver was signed. If the plaintiff was not given proper notice of the waiver, so that the plaintiff understood the content and nature of the release, the waiver may not be upheld. The following considerations help to determine if proper notice was given:

• Was the plaintiff given advance notice of the requirement to sign a waiver?
• Had the plaintiff signed a similar waiver in the past?
• Were the contents of the waiver brought to the plaintiff ’s attention?
• Did the plaintiff have ample time to read and understand the waiver?

Who signed the waiver?

To create an enforceable waiver, the potential defendant must ensure that the plaintiff was capable of contracting out of his or her own legal rights. When looking at the parties to a waiver, the following considerations should be reviewed:

• Was the plaintiff vulnerable, ignorant, or under distress when presented with the waiver?
• Was the defendant aware that the plaintiff was mistaken as to the nature of the waiver?
• Did the defendant exercise pressure on the plaintiff or unfairly take advantage of social or economic pressures on him or her to get him or her to participate?

Parents and guardians routinely sign waiver forms on behalf of children. Different considerations are present where a parent or guardian has signed a waiver for a child. It is important to recall that although dependent persons, such as children and dependent adults, may not have the capacity to contract on their own, they have independent legal rights that cannot be waived without court approval. Waivers signed by a parent, or guardian, may not be enforceable. Although the courts have not specifically set out how parental waivers will be dealt with, the following principles can be identified:

• The rights of an infant plaintiff as against a defendant are the infant’s own and cannot be waived by that infant’s parent or guardian without leave of the court.
• Parental indemnification agreements, where parents agree to accept any loss incurred by their children, are unenforceable by reason of public policy.
• Parental consent forms have not been held to protect schools against lawsuits.

What event is the waiver trying to exclude?

A waiver must address the type of act, or omission, that it seeks to shield or it will not be effective. Waivers that attempt to address events of gross or criminal negligence may not be enforced because of public policy.

• Did the waiver contemplate the negligence or claim at issue?
• Does the waiver try to exclude events of gross or criminal negligence?

Although this area of the law is not settled, one can identify the general trends from recent decisions in the area of personal injury. It is notable that the definitions of gross negligence and criminal negligence as set out by the courts are nearly identical. The definition of gross negligence is: “Conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people…habitually govern themselves.”

Criminal negligence is defined in the Criminal Code: “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety or others.” Given that contracting out of liability for criminal negligence is contrary to public policy, it is reasonable to conclude that contracting out of liability for gross negligence would be similarly against public policy.

The interaction of these principles can be illustrated with reference to decided cases. Crocker v. Sundance Northwest Resort Ltd., decided in1988, is one of the most well known cases that considered waivers. Mr. Crocker signed a waiver to gain entry to a tubing contest and was seriously injured during the contest. The court determined that the waiver was not enforceable because Mr. Crocker was intoxicated when he signed the form, and he had not read its contents nor understood that he was waiving his legal rights.

The 2003 decision in Rauhanen v. Lee is an example of where a waiver was upheld. Ms. Rauhanen was injured while participating in a wheelchair race “Beat Beethoven”. She had signed a waiver in order to gain entry to the race and tried to sue for her injuries. The waiver was upheld by the court, and it acted as a complete shield for the defendants. The Court noted that Ms. Rauhanen had completed her Grade 12 matriculation and started a psychology degree, and that she had raced in many similar wheelchair events. She admitted to having signed at least ten or more waivers for wheelchair races. The waiver was clear and addressed the type of event at issue in Ms. Rauhanen’s claim.

As drafters become better at clearly and specifically setting out the details of waivers and businesses become more conscious of providing adequate notice to their customers, the legal room to wiggle out of waivers will become more narrow. If you have signed a waiver and are concerned about how it affects your legal rights consider the circumstances in which you signed the waiver, whether you made a free and informed choice to sign the waiver, whether you signed the waiver for yourself or on another’s behalf, and whether the waiver speaks to the event that you are concerned about. These are the factors that a court will consider when determining if a waiver is enforceable against you, as a limit on your legal rights and as a shield for a defendant.

Read waivers and ensure that you understand what activities the drafter is excluding from liability before you sign. You may not sign away your life, but you do sign away your absolute right to sue.