Many Ontarians look forward to participating in various recreational activities throughout the year. Participating in new or familiar activities, from trampoline parks to skydiving to snowboarding, is always exciting. However, legal considerations can easily be overlooked. In many cases, the potential risks involved in a certain activity are often overshadowed by the accompanying excitement and adventure. However, to mitigate against potential legal liability, facilitators of such activities require participants to sign a liability waiver. While liability waivers are common practice, it is essential to understand what you are signing off on and whether you may still have a claim if you are injured in an accident. 

Understanding the intricacies of liability waivers and their enforceability is crucial for individuals participating in activities and those seeking legal recourse after an unfortunate incident. This blog will offer insight into the factors determining the effectiveness and enforceability of these waivers in various circumstances.

What is a Liability Waiver?

A liability waiver (or waiver of liability) is a contract between a certain business or organizer, such as a ski hill or skydiving facility, and a participant. The liability waiver is intended to protect the owners and organizers and generally states the participant waives their right to sue any individual or business for any injuries they sustain during the activity, even if the injury results from negligence. 

A well-drafted liability waiver will also warn the participant of the potential risks and inherent dangers of the particular activity and require the participant to sign the document, acknowledging that they are aware of such dangers and surrender their rights to sue if they get hurt. 

General Enforceability of Liability Waivers

Although every case is different, an executed liability waiver is generally enforceable. Therefore, before signing a liability waiver, you should always read the fine print and ensure you understand what rights and recourse you give up once you put pen to paper. 

Certain requirements must be satisfied for a waiver to be valid and enforceable. In particular, the waiver must use clear language when referring to the potential accident’s circumstances and the risks and injuries caused by that party’s negligence. Further, the business or organizer must take reasonable steps to bring the participant’s attention to the waiver by allowing them sufficient time to read and understand the terms before they sign it. 

Exceptions to Enforceability

There are certain circumstances under which a liability waiver may not be enforced. If an accident or injury occurs that falls outside of the defined scope of the liability waiver, it may not be enforceable. For example, a court may consider whether a reasonable person in similar circumstances would have intended to agree to waive their rights in a certain situation by signing the waiver. Additionally, if a dangerous condition was created or the business or organizer allowed a dangerous situation to occur, which is not anticipated in the normal risks of the activity, resulting in personal injury to the participant, a waiver may not be enforceable. 

In the case of Zaky v. 2285771 Ontario Inc., the Ontario Superior Court of Justice addressed three common exceptions to liability waiver enforceability, specifically:

  • If a participant’s signature was obtained through fraud or misrepresentation as to the nature of the risks of a particular activity or event;
  • The legal principle of “non est factum,” which applies in cases where a participant was mistaken as to the “nature and character” of the liability waiver. This principle will not apply, however, in cases where a participant simply failed to read the waiver; and
  • When a reasonable person should have known that the participant signing the waiver did not intend to be bound by the terms of it. Specifically, the business or organizer must bring the participant’s attention to the fact that by signing the waiver, they are relinquishing their right to sue.

Determining Whether an Exception Applies

To determine whether an exception applies to the case at hand, a court may consider several factors, such as:

  • The length of the liability waiver;
  • The amount of time the participant was provided with in order to read and understand the contents of the waiver; 
  • Whether a liability exclusion would be inconsistent with the overall purpose of the document; and 
  • Whether the participant asked any questions or sought clarification as to the content of the waiver. 

Previous decisions from Ontario courts have indicated that an attempt to exclude liability by a business or organizer may not be enforceable in cases where:

  • there was a language barrier that prevented the participant from understanding the contents of the waiver,
  • the participant was rushed through the process or pressured to sign, or 
  • the exclusion of liability was hidden in small print.  

Courts may also determine that a liability waiver is unenforceable if the signatory lacked the capacity to sign the waiver, if there are public policy concerns, or if the negligence that resulted in the injury was beyond the scope of the waiver.

Key Takeaways for Activity Participants

Before signing a waiver of liability, you should thoroughly read the waiver and understand what rights you may be giving up if injury does occur. However, if you sign a waiver and are involved in an accident, the enforceability of the waiver will be analyzed. Therefore, whether or not a waiver was signed, it is important to consult with an experienced personal injury lawyer as soon as possible to discuss the unique circumstances of your case and determine whether you may have a claim for negligence action.

The Skilled Personal Injury Lawyers at Tierney Stauffer LLP Provide Exceptional Representation in Personal Injury Claims 

Accidents happen quickly, and whether you were injured in a car accident or a recreational activity, such as snowmobiling or at a trampoline park, the knowledgeable personal injury lawyers at Tierney Stauffer LLP can help you recover the compensation you deserve. Our personal injury team has the resources and skills necessary to tackle these complicated issues, allowing you to prioritize your health and recovery. Contact us at 1-888-799-8057 or online to schedule an initial consultation with one of our experienced personal injury lawyers.


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