If you take part in activities that present risk – downhill skiing, axe throwing, hang gliding or even regular sports at a community centre – you will likely be asked to sign a liability waiver. It acknowledges that you accept the risks the activity presents and any liability in case of an accident.

Most of us sign these documents without giving them much thought. But if you were injured during the activity, would the waiver be legally valid?

It generally is. As the Ontario Superior Court of Justice has ruled, "[if] the plaintiff chose to sign the form and ignore the consequences, that was a decision freely made by the plaintiff."

That is why people should always read the fine print to ensure they understand the rights and recourse they are giving up.

The language used in waivers must clearly refer to the circumstances where an injury may arise. For example, a liability waiver at a ski hill must state that you are responsible for any injury that happens on the slopes, on the lifts, in the locker rooms, etc.

The person or facility presenting the waiver must also take reasonable steps to bring the extent of the liability you are accepting to your attention. You must be given time to read the document and it must be written in clear language.

Exceptions to Enforceability.

To understand when liability waivers may not be valid, let's go back to the ski hill example. The waiver you signed released management of any liability for injury on the slopes. But as you start to descend you encounter objects in your path that should not be there, such as grooming tools left by the hill's maintenance crew.

If you crash and are injured because of these objects, it is reasonable to argue that that liability waiver should not be enforceable and stop you from suing for the pain and suffering you have endured.

Courts have allowed some exceptions to the scope of liability waivers. In 2020, an Ontario Superior Court of Justice case involved an indoor trampoline park where a man had "signed a purported electronic waiver document" at a computer kiosk upon entry, according to court documents.

Once inside, he attempted to land a back flip, landed hard on his head and suffered serious injuries including a vertebra fracture that required surgery.

He sued the park, alleging it had failed to ensure a safe environment for patrons as demanded by theOccupiers' Liability Act. The park moved for a summary judgment to have the action dismissed, maintaining that the electronic waiver he signed was valid and enforceable.

The judge ruled against the request for dismissal, stating "there is a genuine issue requiring a trial, namely, whether [the park] took reasonable steps to bring the terms of the waiver to [the man's] attention.

The court added, "Surely, the mere fact that there was a waiver requirement cannot, in law, constitute reasonable steps to bring the terms of the waiver to the attention of the participant."

The judgment explained that liability waivers are generally not enforceable on three occasions:

  • Where the circumstances establish non est factum, meaning that the signature on the wavier was not truly the act of the plaintiff.
  • Where the plaintiff's signature was induced by fraud or misrepresentation.
  • Where the defendant knew or ought to have known that the plaintiff did not intend to be bound by the waiver and, therefore, the defendant had a duty to bring the terms of the waiver to the plaintiff's attention.

Factors That Will Be Considered.

To determine whether an exception applies to the case at hand a court will consider several factors. They include the length of the liability waiver, as no one can be expected to read pages and pages of a document when they are eager to take part in the activity at hand.

Other factors include the length of time the participant was provided to read the waiver, if there was a language barrier that prevented the participant from understanding the contents of the waiver or if the signatory lacked the capacity to sign the document. Alcohol or drug-related impairment may result in a person being deemed to have lacked capacity.

Liability waivers are also not enforceable if the injury or accident falls outside the defined scope of the waiver. To go back again to the ski hill example, a waiver releases management from liability for general injuries that occur on the slopes. But if you are injured in the ski hill's parking lot due to poor maintenance or a structural issue, that will not be covered by the waiver and a legal action can be considered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.