Waivers of liability are legal agreements that can limit or exclude the duty of care owed by an occupier in certain circumstances. Although waivers can be effective tools for businesses to minimize their legal exposure, courts carefully scrutinize these agreements to ensure they are fair and reasonable. In this blog post, we will discuss the key principles surrounding waivers of liability, examine how courts have treated these agreements in various cases, and identify the factors that may impact their enforceability.
Occupiers’ Liability Act:
Under the Occupiers’ Liability Act, an occupier may restrict, modify, or exclude the duty of care they owe to others. However, to rely on such a waiver of liability, the occupier must take reasonable steps to bring the restriction, modification, or exclusion to the attention of the person to whom the duty is owed.
In the case of Crocker v. Sundance Northwest Resorts Ltd., the court found that the waiver signed by the appellant, who was injured while participating in a dangerous “tubing” competition, did not relieve the respondent of liability because it had not been drawn to the appellant’s attention and had not been read by him. In cases where a defendant seeks to rely on a waiver, the burden of proof is on the defendant to show that reasonable measures were taken to draw the plaintiff’s attention to the exclusions of liability. Once this onus is satisfied, the plaintiff cannot argue that they did not read it.
Factors Impacting Enforceability:
When a defendant can demonstrate that they drew the exculpatory waiver to the plaintiff’s attention, the waiver of liability clause may be enforceable. In two cases heard together by the Ontario Court of Appeal, Schnarr and Woodhouse, injured skiers brought lawsuits against ski resorts after having signed agreements waiving the facilities’ liability in the event they were hurt. The court upheld the waiver clauses in both cases, finding that they had been properly brought to the plaintiffs’ attention.
A waiver clause must contain an express exemption from the consequences of the occupier’s negligence. If this is not evident, a waiver can still be relied on if the words employed are wide enough in their ordinary meaning to cover negligence. Where there is doubt on this point, a waiver cannot operate to exclude liability.
In addition to an express waiver, an occupier may designate an area on the premises “off-limits,” allowing the occupier to preclude their duty as opposed to making part of the premises safe. In practice, this is considered a narrow exception.
In the case of Arksey v. Sky Zone Toronto, the explicit waiver signed by the plaintiff was found to be a complete bar to action. Although the plaintiff did not read the waiver, she executed it at a computer kiosk and indicated her express acceptance and agreement to the terms by placing checkmarks in specific boxes designed to draw her attention to the provisions of the waiver.
Exceptions and Limitations:
Successfully claiming the waiver exception is more challenging where the person signing or agreeing to the waiver would not expect any injury or damage to result from the activity. In Moodie v. Perfect Images Inc., the court held a suntanning salon 50 per cent liable for injuries to a plaintiff whose pre-existing back problems were aggravated by the salon. The defendant should have drawn the waiver to her attention, especially since the defendant’s business was one from which someone would not expect an injury to result.
The court may also consider the knowledge and experience of the plaintiff in waiver cases. In Vanguard Distributors Ltd. v. Balaclava Enterprises Ltd., the plaintiff was new to Canada and had purchased a week-long lift ticket for a ski resort. The exclusionary clause was printed on the ticket in small, legible print, and notices of the defendant’s exclusion from liability were posted all over the facility. However, since the plaintiff was new to Canada and unfamiliar with ski facilities, the court ruled that the defendant could not elude its duty of care because the notice was not expressly communicated to the plaintiff and reasonable measures to bring the exclusion to the plaintiff’s attention were not employed. The court also considered the plaintiff’s lack of experience with ski facilities and their unfamiliarity with Canada in the Greeven v. Blackcomb Skiing Enterprises case. In that case, the defendant sought to dismiss a personal injury lawsuit brought by the plaintiff, who was injured while skiing on the defendant’s ski runs. The crux of the case was whether the liability exclusion clause on the plaintiff’s admission ticket barred her from suing for damages. The plaintiff claimed she was not aware of the clause as she did not see any notices and did not read the ticket.
The court ultimately dismissed the defendant’s application. It ruled that the defendant could only enforce the exclusion clause if they had taken reasonable steps to make the plaintiff aware of its existence. The court found that the defendant failed to meet this burden, as the ticket’s design did not effectively draw attention to the exclusion clause.
Even though skiing is considered a dangerous sport where participants accept certain inherent dangers, the possible risk of injury may not be apparent to a recreational skier as opposed to an advanced or competitive skier. As a result, waiver clauses are of limited effect in situations where the plaintiff would not normally know of such a clause or have limited experience with the activity that the occupier is facilitating.
Following the Ontario Court of Appeal’s decision in Schnarr, a subsequent decision – Hosseinkhani v. QK Fitness Inc. – commented that an exclusion of liability clause may not be enforceable where the following factors are present: (1) the exclusion clause was on the reverse of the agreement under a general heading; (2) the terms and conditions were extensive and written in fine print; (3) the formatting of the waiver clause did not draw the clause to the attention of the person signing the agreement; (4) the person signing the agreement did not sign or initial the exclusion of liability clause; and (5) in the circumstances in which the waiver was signed, it would have been unreasonable to conclude that the person signing the agreement knew that they were waiving their legal rights to sue in the event of an injury.
Waivers of liability can be effective tools for businesses to limit their legal exposure in certain situations. However, courts will closely scrutinize these agreements to ensure they are fair and reasonable. To be enforceable, a waiver must be clearly communicated to the person signing it, and reasonable steps must be taken to bring the exclusion of liability to the person’s attention. Factors such as the knowledge and experience of the person signing the waiver, the clarity of the waiver’s language, and the circumstances surrounding the signing of the waiver may all impact its enforceability. Businesses should carefully draft their waivers, taking into consideration these factors and ensuring that they are appropriately brought to the attention of their customers.