By Kristina Persaud, Lawyer

The Ontario Superior Court of Justice recently re-affirmed the usefulness of waivers to protect companies from liability, as long as the waiver explicitly covers the contemplated risk and is brought to the attention of the signatory.  

In Arksey v. Sky Zone Toronto, 2021 ONSC 4594, the Defendant applied to dismiss a Plaintiff’s claim after she suffered injuries playing a recreational game of trampoline dodgeball. 

The Plaintiff was directed to an electronic waiver kiosk when she first entered the facility to review its required waiver. The Plaintiff knew she was required to complete a waiver to gain access to the facility. There was signage to this effect as well. The Plaintiff signed the explicit waiver and checked boxes near important terms, but she did not read the waiver. 

Once admitted to the facility, the Plaintiff was directed to her friends’ game without anyone instructing her on the rules of the game or safety protocols. There were no employees present in the game room to monitor the game. The Plaintiff suffered a right knee medial meniscus tear and an anterior cruciate ligament tear while participating in the game. 

The Plaintiff claimed her injuries were as a result of the Defendant failing to instruct on the rules of the game, failing to supervise the game, and failing to follow its own policies. It was argued these actions did not form part of the waiver which the Plaintiff signed. 

In dismissing the Plaintiff’s claim, the Court found it was no excuse to say that one did not read the contract they signed. A person who signs a waiver is presumed to have intended to be bound by it. There is no obligation on a Defendant to ensure a Plaintiff has read the agreement, as long as they are provided with an opportunity to read it. It is only when the circumstances are such that a reasonable person should have known the party signing was not consenting to the terms that an obligation arises to ensure that the signatory read and understood the waiver. In this case, there was no indication that the Plaintiff was not consenting to the terms in the waiver. In fact, she had consented to them. The Plaintiff admitted she had all the time she needed to read and sign the waiver.

The waiver expressly noted that employees may give incomplete warnings or instructions. The Plaintiff accepted this risk. The Plaintiff released the Defendant from all claims she may have for causes whatsoever caused as a result of her participation in the game including negligence, breach of contract, and under the Occupiers’ Liability Act. While it might be unbalanced, consumers are free to agree to risks, so long as they are making a deliberate, knowing and voluntary choice. The Defendant took reasonable steps to bring the waiver to the attention of the Plaintiff. They were not required to stand over her and force her to read the terms. There was nothing deceptive about what the Defendant did, such as onerous terms being buried in fine print, promising something and then taking it away, or putting in unconscionable terms.

A properly drafted waiver is essential to the operation of any activity where there is the potential for personal injury. This case shows how businesses can effectively protect themselves through a waiver while still offering customers the opportunity to engage in risky activities. It also highlights that electronic waivers are effective, as long as the waiver and its terms are properly brought to the attention of the signatory. Saying you did not read the waiver is not an excuse.

For further information on waivers, please refer to our video or contact us to discuss.

Questions?

Should you have any questions with respect to this bulletin, or if you would like more detailed information related to waivers, please contact the following member of the Brownlee LLP Litigation Practice Team:

Kristina Persaud
403-260-1466
kpersaud@brownleelaw.com