Epiq Systems, Inc.
Personal Injury

Recreational liability waivers

By Alison Burrison and Hudson Chalmers

Many summer recreation activities, such as rock climbing or zip-lining, will require users to sign waivers before participating, usually because of some inherent risk of danger in the activity. These contracts are non-negotiable; you either sign them and participate in the fun, or have to wait on the sidelines. Most people have seen these waivers before, but what does it actually mean for your legal rights?

These waivers say something along the lines of:

I AGREE TO WAIVE ANY AND ALL CLAIMS that I may have or may in the future have against the RELEASEES and TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury, including death, that I, or anyone having a relationship to me may suffer, from my use of or presence on the Facilities. This release extends to claims arising from any cause whatsoever including negligence of a Releasee, breach of contract, or breach of any statutory or other duty of care to protect me from the risks, dangers and hazards of the activities.

The biggest issue that comes to mind when seeing a waiver clause like this is “if I get injured while participating, is this enforceable under Ontario law?” The answer, as the law currently stands in Ontario, is “yes.”

When paying for an activity that needs a waiver to enter the premises, there are two Ontario statutes that have jurisdiction to govern the issue. One is the Consumer Protection Act, which applies to any “consumer transaction”.[1] The other is the Occupiers’ Liability Act, which governs the responsibility an occupier owes towards anyone that enters their property.

Section 5 of the Occupiers’ Liability Act states that occupiers are able to restrict their duty or liability to the occupants of their premises via contract, so long as the occupier is “free to restrict, modify, or exclude the occupier’s duty of care”,[2] and when the occupier contracts for this, it must be brought to the attention of the person to whom the duty is owed. However, in section 7 of the Consumer Protection Act, it states that there cannot be a waiver of substantive and procedural rights.[3]

This case dealt with this exact issue. The plaintiff bought a lift ticket for the ski resort, and on the lift ticket was a liability waiver for any injuries she got on the ski hill. She was injured by one of the lift attendants’ negligence and sued the resort.

The judge brought a motion for a question of law to be heard, specifically, the applicability of the Consumer Protection Act and Occupiers Liability Act to the liability waiver. For an occupier to limit liability under the Occupiers’ Liability Act, they must be “free to do so.” In order to be “free to do so,” the limiting of liability must not be barred by any other Act, and because the Consumer Protection Act applies, in the case of liability waivers to enter premises’ and for services, occupiers are unable to limit liability. The judge held that because both Acts apply to the issue of a lift ticket bought to enter the premises in the course of a consumer transaction, the occupier was unable to limit liability, making that clause void, and allowing the plaintiff to sue.

However, this decision was overturned, where the Court of Appeal found that these Acts were irreconcilable and in conflict. As a result, the judge found that the Occupiers’ Liability Act took precedent, thus the liability waiver on the ski pass was valid. We are waiting to hear if this gets overturned again at the Supreme Court of Canada, but for now, the law in Ontario is that if there is a liability waiver in a consumer agreement in order to enter an occupiers’ premises, the waiver is valid.

[1] Consumer Protection Act, s.2

[2] Occupiers’ Liability Act, s.5 (1) and (3)

[3] Consumer Protection Act, s.5(1), (2), and (3)

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