*Please note that School of Scheff is not legal advice and should not be taken as such. School of Scheff provides legal information which is specific to the Province of Alberta. Should you reside outside the Province of Alberta, please contact a lawyer in your jurisdiction with any legal queries as the laws across the Canadian provinces vary widely.*
It’s Time to Talk About Waivers
We are all familiar with this process. We decide we want to partake in a risky (or not all that risky) activity; we arrive at the location where the activity is going to take place; before we know it, we have a piece of paper put in front of us that we’re expected to sign titled something to the effect of ASSUMPTION OF RISK AND WAIVER OF LIABILITY; we read (gloss) over it and think we understood what it was we signed; and we carry on with the activity none the wiser.
Assumptions of risk and waivers of liability are what make the economy go ‘round.
Certainly, it’s what makes any sort of extreme sport or risky activity possible: skiing or snowboarding; trampoline parks; recreational sport leagues; ziplining; skydiving; group events; concerts; sporting events; the list goes on and on. Waivers are what allow these organizations to be able to get insurance to protect them in the event of a lawsuit – it’s also what keeps insurance affordable for those businesses. Without them, from an insurance perspective, those businesses would be a ticking time bomb. The question wouldn’t be if the insurance company would have to pay out, but rather when.
Insurance companies generally try to avoid situations that involve “the when”.
If you were to ask any participant after they’ve signed a waiver what it was that they signed, most people could tell you that they were waiving their right to sue or some may shrug and tell you that it was just paperwork that they had to sign as a formality. Some fall under the mistaken belief that if something happened and they were seriously injured that the waiver wouldn’t hold up in Court or that the waiver would only apply if they were the cause of their injury – not if it was the operator’s fault.
Surely if it was the operator’s fault, they’d be liable, right?
Wrong. More often than not, when you sign a waiver (or at least a well drafted waiver), it includes language that not only prevents you from suing in the event you were responsible for your own injury at the operator’s place of business – it also prevents you (and your estate) from suing in the event the operator is responsible for your injury, even if they were entirely at fault. It also generally states that if you do file a claim despite having signed the waiver, that you will fully compensate (“indemnify”) the business or operator, for their legal costs incurred to defend against your lawsuit.
Not all waivers are created equal and its not to say that a waiver can’t be challenged in Court. In rare cases, Courts have held that particular waivers in particular circumstances are unenforceable. However, more often than not the waiver is upheld, and it becomes a complete defence to the claim filed. Waiver cases are extremely fact dependent and many turn on the circumstances surrounding when and where the wavier was signed. For instance, the more care and attention taken by the operator to ensure that you not only read the waiver, but understood what rights you were waiving, the more likely a Court will uphold the waiver. There are a few ways that this can be done such as:
- Ensuring important clauses are highlighted and outlined (yellow highlighting with red outline). The clauses may also be capitalized, bolded, and underlined;
- Giving you ample time to read and sign the waiver without being pressured in any way;
- Having you sign the waiver before you pay for the activity;
- Having you initial each of the risks you are assuming as well as places in the waiver which explain which rights you’re waiving; or
- Verbally reviewing important clauses with you.
This isn’t a checklist and it’s not to say that if an operator doesn’t do one of these things that the waiver is automatically unenforceable. Waiver enforceability involves a complex analysis which those items above form a part of.
This information may feel unsettling or leave you wondering why anyone would decide to sign a waiver knowing this information. It boils down to informed consent and assumption of risk. I became well informed about waivers in my second year of law school after researching them extensively for my major paper. I have hated signing them ever since; however, it’s this knowledge and hatred for them that makes me great at drafting them.
At the end of the day, you’re left with two choices: 1. don’t sign the waiver and don’t participate in the activity; or 2. sign the waiver and participate in the activity with informed consent, knowingly assuming the risks of the activity. Most often I choose to sign begrudgingly and participate in the activity knowing the rights I’ve waived; but as a result, I am also much more cautious about the activities I choose to participate in.