Waivers don’t always limit legal action: Edwards
By AdvocateDaily.com Staff
Just because someone signs a waiver doesn’t mean they can’t take legal action if they’re injured, says Oakville personal injury lawyer Jill Edwards.
With the summer season unfolding, it’s important for people to understand that as they sign a waiver before participating in an activity — or something for their child — these waivers need to be specifically worded, so they know what rights they are giving up, she tells AdvocateDaily.com.
“A waiver is essentially a side-contract between the person doing the activity and the entity that is hosting it,” says Edwards, partner with Edwards Pollard LLP.
“If you want the participant to give up any right or their ability to sue, you have to make sure that they understand what they’re giving up,” she says.
It’s not sufficient to include such material in the fine print of a lengthy document, Edwards says.
“You have to make sure that it’s been brought to their attention, that they understand what it means, and what they’re giving up.”
In cases involving a minor — such as at trampoline parks or rock-climbing gyms — waivers are often signed by an adult on the child’s behalf, Edwards says.
“There’s an overriding public policy that if you’re trying to put the waiver in place for a child, you’re essentially trying to get a child to give up their rights by having an adult sign, and there’s just something wrong with that,” she says. “The child can’t give up their own right because they’re not old enough.”
Adults, on the other hand, can make decisions about what risks they are willing to assume, Edwards says. However, she says recent case law that invokes the Consumer Protection Act indicates the activities offered must be of acceptable quality, even if there is a waiver. Businesses must also take reasonable action to ensure their premises are safe.
“If, for example, you go into a rock-climbing gym, you’ve signed a waiver, and you’ve accepted the risk that goes with that activity, the waiver would likely apply to you,” Edwards says. “However, if you slip on water on the floor, that was not a risk that you assumed. You assumed the risks involved with a rock-climbing type of activity, not with them having improper maintenance in their facility,” she says.
If an individual does not agree with the terms of the waiver, they may attempt to cross out certain parts, but that may not be accepted by the business, Edwards says.
“As long as both sides have agreed to what the terms are, it can be enforced,” she says. “Often you have no choice if you want to participate — you have to sign. If you’re not willing to accept the risks of a particular activity, you shouldn’t be engaging in it.”
But for those who are injured after signing a waiver, Edwards suggests they have an experienced lawyer review the waiver to determine if a lawsuit is still an option.
“You always have to look at the facts in terms of how the waiver was presented to you, and how much time you had to read it,” she says.
For example, for people who digitally agree to waivers at trampoline parks, they often have to click a box to indicate they have read a section. Edwards says a judge likely wouldn’t look too kindly on a person who argues they didn’t bother to read the waiver, even though they clicked the box.
On the other hand, if someone was asked to sign a waiver before white-water rafting while sitting in the boat, she says one might argue the person didn’t have a reasonable chance to review the risks they agreed to.
“It’s always best practice to obtain a copy of the waiver and review it to see if legal action is possible,” Edwards says.