*The article was updated on April 15^th, 2020 to reflect the Court of Appeal decision in the case of Apps v Grouse Mountain Resorts Ltd.

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Some judges have said yes. Some judges have said no. How to ensure your waiver will work is a critical issue for sports and recreational organizations, and their insurers. An organization operating with a strong waiver reduces the risk of lawsuits and can raise a stronger defence to lawsuits when they arise. Operating with an inadequate waiver or no waiver at all can expose an organization to lawsuits and reduce or remove an otherwise viable defence in the event of litigation.

It is important for organizations and their insurers to understand and effectively implement liability waivers. This paper will consider the outcomes in leading cases and highlight the key considerations for a strong waiver.

Grab Their Attention

You must ensure your waiver is sufficiently brought to the participant’s attention. Before even considering whether your waiver is adequately written, you must consider whether you have sufficiently apprised the participant (the intended releasors) of your waiver.

Most recently in the B.C. case of Apps v Grouse Mountain Resorts Ltd., 2019 BCSC 855 rev’d 2020 BCCA 78, the Court of Appeal reiterated this important element of a waiver defence. The Court of Appeal overturned the trial decision dismissing the plaintiff’s claim for injury from a snowboarding incident based on a waiver defence. In doing so, the Court of Appeal found the trial judge erred in (1) considering signage posted by the ski resort that only came to the plaintiff’s attention after he purchased admission; and (2) applying the wrong legal test in respect of the plaintiff’s prior knowledge of the ski resort’s waiver.[1]  In finding that the defendant ski resort did not sufficiently bring their liability waiver to the plaintiff’s attention, the Court of Appeal noted:

• The law does not support the ski resort’s reliance on warning signs in relation to the waiver that only became available to the plaintiff after he was issued the waiver and purchased his ticket. Only steps taken before and at the time of issuance of the ski ticket are relevant to whether the plaintiff was sufficiently apprised of the waiver language.[2]
• The sign at the ticket booth relied on by the ski resort was “difficult to read”.[3] It was unlikely that someone approaching the ticket booth would stop in front of the window to read the sign.[4]
• Where the waiver in question appears in a contract that the person signs, it would be presumed in the first instance that the person intended to be bound by the terms of the contract. The issue whether they were given sufficient notice of the waiver would not arise in the first instance.[5]
• The onerous own negligence exclusion in the ski resort’s waiver was “not highlighted or emphasized in any way”, but was buried in small print among many commas and semi-colons.[6]
• In the context of “own negligence” exclusion clauses, even if a waiver sufficiently apprises a participant that it limits their rights, this does not automatically mean that enough has been done to apprise the participant that the contract may go further to exclude liability for the provider’s own negligence.[7]
• Past dealings with the waiver in question are only relevant if there was actual knowledge, not constructive knowledge. Here, the plaintiff previously signed a similar waiver for another ski resort but he did not read that waiver.  This could not constitute the actual knowledge required to rely on his previous experience with waivers, absent some express appreciation that such terms were standard and expected.[8]

The degree to which you must draw a waiver to the attention of the participant will depend on the nature of your waiver and the person(s) you are dealing with. Namely:

• the more onerous the exclusion clause the more explicit the notice must be;
• a waiver of an occupier’s own negligence is among the most onerous of clauses;
• the form, location and process by which notice of the waiver is given will influence whether the notice was reasonable; and
• the reasonableness of the notice is based on an objective test, but the circumstances of the participant are considered including their age, level of education and previous experience with waivers of the same or similar recreational areas.[9]

Apps affirms that in cases where the participant actually signed the waiver in question, there will be a presumption that they intended to be bound by the waiver – therefore suggesting that the onus in the first instance of establishing that the participant was apprised of the waiver need not be considered or will otherwise have been met.  What the Apps case further shows us is that foremost in cases where there is reliance on a waiver that is not signed, having a mandatory waiver process which gives the participant a fulsome opportunity to review the waiver is invariably important. The Court of Appeal noted that despite the waiver language being displayed on various signage and the entrance ticket, the plaintiff never actually read or appreciated the ski resort’s waiver.

In contrast, in the Saskatchewan case, Quilichini v Wilson’s Greenhouse, 2017 SKQB 10, the Court dismissed an injury claim arising from a go-karting incident, based on an electronic waiver providing a complete defence. As to whether the waiver was sufficiently brought to the plaintiff’s attention, the Court held the defendant’s kiosk system ensured their waiver was presented to the customers and that customers had to indicate their acceptance of same before they could participate.[10]

In the case, Alton v Lower Mainland Motocross Club, 2017 BCSC 2460, defended by Clark Wilson LLP, the Court dismissed a plaintiff’s injury claim when he fell off his dirt bike during a motocross practice session. In doing so, the Court noted that the plaintiff had the opportunity to complete the waiver signup form at home, there was no rush to return the document, and the plaintiff had full opportunity to review the waiver.[11]

Drawing attention to a waiver most importantly means drawing the participant’s attention to the clauses which release the participant’s rights – particularly the common “own negligence” clauses which are the most onerous of clauses. This does not mean necessarily requiring the participant to have read the waiver. This is an important distinction particularly in the context of litigation, where often the plaintiff(s) will argue they never read or saw any waiver as was the case in the Apps case. A plaintiff’s failure to actually read a liability waiver may not necessarily preclude the waiver’s application, if the plaintiff was nonetheless sufficiently apprised of the contents which waived their legal rights upon which the defendant intends to rely. In the Apps case, the poorly placed “own negligence” clause in the waiver was fatal to the ski resort’s position.  While the ski resort had included such a necessary clause for their waiver defence, the fact that they buried it in difficult-to-read format and placed it at the ticket booth, was enough for the Court of Appeal to find that the plaintiff was not reasonably or actually apprised of the wording.[12]

The particular characteristics of the plaintiff are also relevant to consider if they were sufficiently apprised of a waiver. In Apps although the plaintiff had previously dealt with ski resort waivers, he had never actually read them himself so his past experience could not be said to have supported his being notified of the waiver in question in this particular instance. In particular, the Court of Appeal clarified that when considering past dealings, a person’s constructive knowledge (i.e. signing a similar waiver but not having read it) cannot transfer to a present situation to support that they had constructive or actual knowledge of the waiver in question. The plaintiff in Apps had dealt with liability waivers in the past but never having read them, his past constructive knowledge of such waivers could not be relied on to assume that he appreciated the waiver in question.

In contrast, in the case Loychuk v. Cougar Mountain Adventures Ltd., 2011 BCSC 193 (aff’d in 2012 BCCA 122), two plaintiffs’ injury claims from a zip line accident were dismissed based on a waiver each had signed. In considering whether the plaintiffs were sufficiently apprised of the waiver at issue, the Court took note of the fact the plaintiffs were each sophisticated and knew and understood the use and implication of the releases they signed. One plaintiff used releases in her own business, and the other plaintiff had just completed her law degree and was familiar with legal terminology.[13]

Accordingly, it is important that whatever procedure is used to apprise participants of a waiver, to the extent possible, such procedure is commensurate to the participants’ level of sophistication – i.e. know your audience. Greater efforts to give notice are required for less sophisticated individuals. Nonetheless, all opportunities should be taken to draw a waiver to the attention of all participants at all stages of your activity, most importantly before the activity.

Presentation Is Everything

Underlying the idea of bringing a waiver to a participant’s attention, is the presentation of a waiver. The form and presentation of a waiver, including its location and content, will factor into whether the participant received sufficient notice of the waiver.

A waiver that is not located in a convenient place, may trigger a further duty on the organization intending to rely on the waiver to specifically draw attention to that waiver.[14] In the case Arndt v. The Ruskin Slo Pitch Association, 2011 BCSC 1530, the Court refused to apply a waiver because the waiver was placed on the back of a sign-up roster. In that case, the Court concluded that, on its face, the document appeared to be a roster rather than a waiver, and therefore was not binding.[15] It is critical that organizations relying on a waiver, be clear and upfront about them from the start. Make it clear to a participant that they are signing a liability waiver which will affect and remove their legal rights to sue for injury.

In addition to properly situating the waiver, the content of the waiver should be simple and clear. The clearer and easier to read a waiver is, the more likely it is that a court will find that the participant was sufficiently apprised of the existence of the waiver and thus be bound by it.

The Court in Alton reiterated that waivers should not be excessively long, complicated, or misleading.  It should be clear that the document is a liability waiver.[16] The Court noted the waiver in that case to be clearly titled with bold, capital letters.[17] In the Apps case, the Court of Appeal noted that the poor presentation of the waiver in that case was fatal to its application.[18]

These cases illustrate that successful waivers are presented in clear, bold print, which stand out to a reader – i.e. they are what they appear to be.

What Should the Waiver Say?

The content of a waiver will determine what it does and does not cover. A waiver must adequately contemplate the risk that arises and the risk it applies to. If the actual risk that arose cannot be captured within the scope of the waiver the waiver will not apply.  The courts require consideration of whether a waiver, viewed objectively, was intended by the contracting parties (i.e. the organization and the participant) to reasonably include the risks that arose insofar as the nature of the incident itself and the cause of that incident (e.g. act, omission, negligence, recklessness of the organization).[19]

In Alton, the plaintiff argued the waiver did not apply to exclude liability for the defendant organization’s negligence due to improper maintenance or design of the motocross track. The Court rejected this argument, finding that the waiver’s express terms covered negligence in that regard. The waiver contained broad and comprehensive language, excluding liability for serious injury and death, and an assumption of all risk and agreement to a full and final release and waiver of liability, including negligence.[20] The Court concluded such broad categorical wording covered all types of injuries that fell within the listed categories, and that the precise types of injuries did not need to be exhaustively listed – and the wording was sufficient to cover injury as a result of negligent maintenance of a motocross track.[21] It is therefore important that any waiver explicitly describe the types of risks / injuries and the cause of such risks / injuries (e.g. serious injury or death resulting from negligence in any way, including this [activity]).

What is also clear is that waivers do not necessarily need to list every possible risk / injury meant to be covered. Consistent with what the Court said in Alton, in Quilichini, the Court held although the waiver in that case did not expressly exclude liability for negligence, the wording was broad enough to capture negligence. The Court concluded the waiver covered risks “arising in any way” which was broad enough to cover negligence.[22] As such, while it is important to be as explicit as possible, a sufficiently broad and categorical waiver can be effective as well. This consideration will help in striking a careful balance between the presentation and content of your waiver, both of which are key elements to its effectiveness.

A waiver’s content must not only address the risks it is to cover but also the people and organizations it is meant to cover. Waivers must clearly stipulate the parties it intends to protect. A fundamental principle in law is for a person / entity to rely on the benefit of any contract, they must be a party to the contract (i.e. the contract must have been made involving them). In the context of waivers, the courts have established unnamed or misnamed third parties may come under a waiver’s protection if they can show:

• the release makes clear the third party is intended to be protected by the provisions which limit liability;
• the release makes clear the waiver’s named beneficiary was contracting not only on its own behalf but on behalf of the third party;
• the named beneficiary was authorized by the third party to contract a release of liability on its behalf; and
• the third party gave consideration for the release.

In cases where waivers have not expressly named certain individuals, but instead have used non-specific wording such as “representatives and agents”, the courts have found the first of the four requirements to be met because the defendants came within the general meaning of those words.[23] The opposite reasoning may arise with specific wording. In the case Quick v. Jericho Tennis Club, [1998] B.C.J. No. 1149 (B.C.S.C.), a specifically worded waiver was found not to encompass a certain defendant due to its level of specificity. The plaintiff tennis player had been injured during a tournament then sued the club hosting the tournament. The waiver he signed identified certain parties, but made no mention of the club. Given its degree of specificity, the Court decided it was reasonable for the plaintiff to assume the unnamed club was not meant to be included.

In Alton, the Court held that the waiver applied to the motocross track owner and lessee, despite the fact that they were not specifically referenced in the waiver. The Court found they were clearly the owner and lessee of the event, and the waiver did expressly name owners and lessees in category. The waiver there included these entities.

Accordingly, if possible, you should name all possible persons / entities meant to be protected in a waiver. As may be the case though, all potential parties to a waiver may not be explicitly known at the time of drafting, or it may not be feasible to list every potential party. In such a situation, it is prudent to at least include broad and categorical parties that envision all the possible types of parties intended to be protected.

Problems and Recommendations

Regardless of how well a waiver is presented and written, businesses and their insurers must remember not every waiver will necessarily apply to defend a lawsuit. The courts retain discretion to refuse to apply a waiver on the basis that doing so would be contrary to public policy or if it would be unconscionable.

Public Policy

In the case Niedermeyer v. Charlton, 2014 BCCA 165, the BC Court of Appeal overturned a trial judgment which dismissed an injury claim based on a waiver defence. In this case, the plaintiff was injured after participating in a zip line activity when a bus operated by the zip line company was involved in a motor vehicle accident. On appeal, a majority of the Court of Appeal held it was contrary to public policy to permit the defendant to contract out of liability for damages for personal injuries suffered in a motor vehicle accident in BC. BC has a statutory scheme of compulsory universal insurance coverage for damages for personal injury arising from motor vehicle accidents. Therefore, it would be contrary to public policy to permit the respondents to enforce the release of liability arising from an injury that occurred in the course of transportation rather than in the course of the zip line activity. The intent of the legislature in creating the universal statutory scheme outweighed the freedom of contract in this case. The Court made clear the conduct of the party seeking to rely on a liability waiver will be assessed as to whether it shows knowing or reckless misconduct which endangers the public.

Of note, is that generally courts have not found waivers in the context of sporting / recreational activities to be unconscionable.[24] While unique facts such as those in the Niedermeyer case can give rise to overriding public policy factors, the use of liability waivers for sporting and recreational activities is not in itself unconscionable or contrary to public policy.

Minors

Waivers cannot be upheld against minors. Nonetheless, you should have minors and their parent / legal guardian sign your waiver. Further, instead of or in addition to having parents / legal guardians sign waivers on behalf of minors, have the parents sign an indemnity agreement in favour of your establishment.  If litigation arises in respect of a minor, you can take the position that the parent / legal guardian must defend and / or indemnify your organization in respect of such litigation.           

Conclusion

While there is of course never a guarantee a waiver will apply in any given situation, in order to optimize the viability of a given waiver, organizations and their insurers should ensure any waivers they use address the following points:

• Ensure you bring your waiver to the participants’ attention before they are permitted to participate in any activity. Give the participants all the time they need to review and sign the waiver.
• Present your waiver in a clear, concise, easy to read format. Consider the use of bold lettering and highlighted sections; and the use of a single 8” x 11” sheet of paper.
• Write your waiver in clear, simple, and explicit language. Include all specific risks that are anticipated and meant to be covered. This means the actual occurrence and cause of the occurrence (e.g. injury or death as a result of negligent maintenance).
• Include all specific persons and organizations your waiver is intended to protect. Name the intended releasees by name, if possible, or at least by category.

As always, revisit and update your liability waivers regularly. The law on this issue has and will likely continue to change. As the BC Court of Appeal said most recently in Apps: “an issue that has troubled the courts ever since the Industrial Revolution: under what circumstances is such a waiver in a contract of adhesion (where the consumer must take it or leave it) binding on the consumer?” Seek the advice of a lawyer with the appropriate expertise to assist in drafting your waiver, and consult on the process by which you implement your waiver.

Businesses and their insurers must consider various risks in their operation. It is impossible to eliminate all risks, but it is certainly possible to reduce and manage some risks. Liability waivers can be an effective tool in risk management, if used appropriately. If not used at all or used inappropriately, a waiver may provide no protection and create a sense of false security. Businesses should therefore exercise due diligence in preparing, implementing, and maintaining / updating their waivers. Insurers should exercise the same due diligence in respect of their clients’ businesses.

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*** The content in this paper is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Readers of this paper are advised to seek specific legal advice by contacting members of Clark Wilson LLP (or their own legal counsel) regarding any specific legal issues. Clark Wilson LLP does not make any warranties or guarantees in respect of this paper for any particular purpose.