The Value Of Waivers With Higher Risk Activities

Do you enjoy skiing? Snowboarding? Horseback riding? Do your kids enjoy these activities?  If so, you have probably signed a waiver at some point or other, indemnifying the business offering the recreational activity from liability, if you were to get hurt in the pursuit of those activities. But do these waivers hold up in court?

For a while in Ontario, they didn’t.

What Happened To Waivers In Ontario?

The Ontario Superior Court, in 2017, poked some holes in the liability protection purveyors of higher risk activities had relied on for decades.

The court allowed two lawsuits to proceed against ski resorts in Ontario, finding that the waivers the two plaintiffs agreed to were negated by the resorts failing to observe certain requirements under the Consumer Protection Act.

For insurance companies who provided liability coverage for higher risk activities, this was a big concern.

After all, if the waivers weren’t going to be of any value, the cost of insurance would surely have to skyrocket, making these sports effectively uninsurable.

On appeal, the court ruled on March 28th that the plaintiffs in those cases were subject to the waivers that they agreed to. Court of Appeal for Ontario Justice Ian Nordheimer wrote in his decision that if the conflict stood, then “resorts would be held liable for something that they thought they had lawfully protected themselves against” and that this was “absurd.”  (SOURCE)

What Are The Implications Of The Court Decisions?

Two things: First, companies that offer recreational services that have a reasonable expectation of some risk for participants should not rely wholly on the idea that they are protected by waivers.

They are not the be all and end all: those companies should be performing their due diligence to make sure that they have clear risk management policies and that they review them regularly. In other words, these companies have a ‘duty of care’ and have to make sure they are doing everything practicable to keep participants safe.

These companies also need to make sure that the participants in the activities are aware of the waiver. It’s not good enough to say: “By buying this ticket, you’re accepting these risks.”

Second, individuals signing waivers to participate in higher risk activities need to be aware of the difference between true negligence, such as chair lifts that haven’t been serviced in three months, resulting in a breakdown that caused injuries; and unforeseeable issues, such as a tree limb falling in the middle of the day from old age (not high winds or a storm), half way down a less frequented run and the resort was not yet aware of the problem.

As adults, we all have to be responsible for our actions and our choices. When a choice we’ve made, including hurtling down an icy slope with no lessons or experience, goes wrong, there has to be some element of that blame that falls squarely on the individual.

That said, if presented with a case where a person was injured and is claiming negligence by the business providing the recreational activity, the courts will look at a couple of things including whether the waiver was comprensible to the person (or was it full of legalese?); whether and how the waiver was given to the participant (or were there just ‘at your own risk’ signs everywhere?); and when the waiver was presented.

In other words, did the participant know and understand the waiver before they committed themselves to participating in the activity?

What About When Parents Sign For Their Kids?

Children cannot legally enter into a contract, which is what accepting a waiver entails.

Parents are asked to sign these liability forms on their behalf before their children participate in martial arts classes, ski or riding lessons, to name a few.

But are the businesses truly protected and can parents be barred from suing on behalf of their children, in the event of injury?

This is a point of law that is still in dispute.

It still comes down to negligence, but even with kids, there is an assumption that you know the risks if your child is participating in something that could be dangerous. As long as that activity has been engaged in as safely as possible, and all reasonable precautions are taken by the service provider, the waiver should stand.

Also keep in mind that, since a limitation period to sue does not begin to run for a minor until they’re 18, what would prevent them from waiting until their 18th birthday and then suing the ski resort in their own right? In this instance, by arguing that they can not be bound by a waiver they never signed or legally agreed to.

These are incredibly complex points of law, in the realm of personal injury, so if you’re ever injured in the course of an activity, whether or not you signed a liability waiver, check in with a personal injury lawyer to make sure that everything in your case is double checked, with i’s dotted and t’s crossed.


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