Think your waiver has you covered? It might not.

May 18th, 2018 by elliot-fonarev

Chances are your organization has dealt with waivers if your services have the potential to create injury or liability to your clients or customers – for example, if you operate sports facilities or provide access to a physical space with potential hazards. If so, a recent decision of the Ontario Superior Court of Justice on the topic of waivers may interest you. It highlights that documents that release liability should be drafted very specifically to make it clear which legal rights are being waived.

Anderson v Confederation College is a case heard in 2017 between a student in a police academy and a police training college. Mr. Anderson signed a consent form on his first day of class; the consent was prepared by his instructor, Mr. Greaves. The college neither approved nor knew about the consent form. The form contained an acknowledgement that the program and classes offered by the college may involve “strenuous physical exertion”, and that “injuries or other complications associated with exercise or other physical activities” may arise from participation in the activities. It also required signers to declare that they would consult a physician if they were concerned about risks of participating on their health or well‑being. Signers agreed to waive and release the college from all claims of liability or demands for compensation as a result of injuries suffered by participants in activities offered by the college.

One day, Mr. Anderson was running laps on the track and ran into a steel basketball hoop that had protruded onto the side of the field. Mr. Anderson sued the college for negligence. The college moved to dismiss his claim on the basis that the consent form he signed waived his rights to sue for all claims against the college. Mr. Anderson argued that the waiver was not intended to release liability related to such out‑of‑the‑ordinary risks and was only in regards to health‑related issues arising from physical activities such as self‑defence classes.

Justice Newton agreed with Mr. Anderson. Newton gave us three questions to ask to determine whether the waiver should apply:

  1. when the waiver was signed, did the parties intend it to cover the kind of situation that has come up
  2. are the parties so unequal in power that the waiver is “unconscionable .
  3. even if the first two questions mean that the wavier should be upheld, is there a public policy reason to override the waiver

Justice Newton only had to go so far as the first question, determining that the clause did not apply to the situation that brought Mr. Anderson to her court. In this situation, Justice Newton said that the statement containing the waiver, which was written in general language stating that “any and all claims” as a result of participation in “any” of the activities, had to be read in the context of the rest of the consent form, which emphasized injuries and health risks associated with exercise and physical activities that police trainees were expected to complete as part of the program. In other words, the consent form was clearly about protecting the college from liability from injuries that result from participation in the police training program, and not about liability from any kinds of activities that take place while the trainee is at the academy. The Justice emphasised that courts will look at what the parties reasonably would have understood the waiver to mean and cover when it was made. She also said that if there is any ambiguity in the waiver, it will be interpreted in favour of the plaintiff. She determined that the meaning reasonably contemplated by the parties, as revealed in Mr. Anderson’s testimony at the hearing, was that the waiver of liability was directed at risk of harm from health‑related issues and physical activities such as self‑defence classes, not liability for all hazards on the college grounds. This was also supported by the fact that if the college wanted to have students sign a waiver against such hazards, it could have required students to do so and not have the instructor prepare his own document without authorization or direction.

Clearly, this was a case of the college using the consent form to escape liability for negligence after the incident had already happened. Even if the college required students to sign more specific waivers against defective grounds and hazards,  it’s unclear whether a court would have nevertheless found those to be invalid on the basis of unconscionability because of the unequal bargaining power between individual students and the college, or on the basis of public policy. This question is for another day.

Currently, there are many examples where general waivers are used to waive the risk of all liability from hazards – for instance, on ski resorts, users of the resort typically must agree (when purchasing a lift ticket) to waive their right to sue the resort for injury due to hazards while skiing.

The decision reminds us to think ahead when dealing with clients or customers that may be at risk of injury or other forms of harm or liability on your grounds or when receiving your services.  Since ambiguity will be interpreted in favour of the plaintiff, make sure to work through the specific kinds of issues that may arise and that should be captured by the waiver. If you need advice about your waivers, give us a call.

Filed in: Charities, Co-operative Law, Commercial Law, Housing, Indigenous Law, Litigation, Not for Profit Law

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