In Bernier (Litigation Guardian of) v. Ottawa (City), 2024 ONSC 6725, the plaintiff sought damages for injuries she suffered while participating in a cycling event in 2018. The defendants sought summary judgment, arguing the waiver released them from any liability for negligence. The primary issue before the Ontario Superior Court of Justice was whether the plaintiff's action was barred either by the signed waiver or because the plaintiff voluntarily assumed the risk of injury. 

The plaintiff was an experienced cyclist and volunteer ride ambassador for the event. She had volunteered for this event in the past. During this particular cycling event, she fell at a railroad crossing along the route and sustained injuries. She alleged that the defendants were negligent in failing to warn participants of the hazard at the railroad crossing and in maintaining the roadway.

The plaintiff was emailed the waiver two weeks before the event and she returned the signed copy six days before the event.  The waiver was titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement”. The waiver explicitly warned of its legal implications, stating it could limit or eliminate the signer’s ability to bring legal actions. It also acknowledged that the signer was agreeing on behalf of themselves, their family members, and anyone else who might claim or sue on their behalf. The plaintiff argued that the waiver did not apply to her because she was a volunteer and not a paying participant in the cycling event, and that she received the waiver by email, without any explanation.

In this decision, the court referenced the BC Court of Appeal case of Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, to conclude that a person who actually signs a waiver will be presumed to have intended to be bound by it. In cases involving signed contracts, knowledge of what the contract contained is presumed. It is generally no excuse to say that one did not read the contract she signed. In Apps, the plaintiff, a 20-year-old snowboarder, suffered a catastrophic injury while using the Grouse Mountain Resort Terrain Park for the first time. Unlike Ms. Bernier, Mr. Apps did not sign a waiver. Rather, the terms of an exclusion of liability notice were printed on a sign above the ticket booth where Mr. Apps purchased his lift ticket, and also on the back of the ticket he received after payment. The BC Court of Appeal found Grouse Mountain had not done all that was reasonable to bring the terms of the waiver to Mr. App’s attention before he purchased the ticket. The signage and details of the waiver were not visible to Mr. Apps until after he purchased the ticket. 

Unlike Apps, Ms. Bernier was provided the waiver two weeks before the event and had sufficient time to read it carefully had she chosen to do so.  Further, the court accepted that based on the wording of the waiver, there was an understanding between the parties that the Respondents assumed no responsibility for the plaintiff’s safety and she had voluntarily assumed the risks of participating in the event. In particular, the waiver included (a) "terrain" as of the risks of the event being assumed by the signor of the release; (b) sole responsibility for being familiar with the event course resting with the person signing the waiver; and (c) to the release of "all provincial, city, town, and other governmental bodies, and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Event or segments of the Event take place" even if injury arose as a result of their negligence or gross negligence.

Ultimately, the court concluded that by signing the waiver and participating in the event, Ms. Bernier voluntarily assumed the associated physical and legal risks and that the plaintiff’s action was barred.

Key Takeaways:

1. A waiver must clearly identify the scope of risks and liabilities being waived. 
2. Waivers excluding "negligence" on its own are not sufficient to find that the plaintiff waived all possible forms of negligently caused injury. The words in the waiver must be construed to determine if the parties can reasonably be said to have agreed on the exclusion of liability in the context of the case at hand.
3. For a waiver to be enforceable, the party relying on the waiver must take reasonable steps to bring the waiver to the attention of the plaintiff.
4. It is generally no excuse to say, "Although I signed the contract, I did not read it." If a plaintiff is provided with an opportunity to read the waiver, it is up to them to choose whether to read it or not.