Anderson v. Confederation College, 2017 ONSC 5791

Review of the law on the interpretation of exclusion clauses.

Date Heard: July 6, 2017 | Full Decision [PDF]

This is a recent case on waivers.  It provides a useful review of the current state of the law on the interpretation of exclusion clauses.

The Plaintiff was a student enrolled in Confederation College’s Police Foundations Program.  On the first day of class, the Plaintiff’s instructor demanded that his class complete a consent form, which included an exclusion clause.  The exclusion clause purportedly prevented the Plaintiff from suing for personal injuries suffered while participating in the program.  The clause read:

In exchange for being presented the opportunity to participate in the activities, programs and classes offered by the Police Foundation I am aware of and willing to assume the risks associated with these activities. I knowingly and voluntarily agree to waive and release Confederation College and any and all of its trustees, officers, employees and agents from any and all claims of liability or demands for compensation as a result of injuries I may suffer or damages or losses I may incur as a result of my participation in any of the activities offered by the Police Foundations.

After signing the release, the plaintiff was injured while participating in the program.  While completing a running race, the Plaintiff was struck in the head by a basketball hoop that was overhanging the running track.  The Plaintiff argued the waiver did not apply “because an unforeseen obstacle on the track was not a risk normally associated with the [activities offered under the program]”.

The Court re-iterated, on counsel’s agreement, that the interpretation of exclusion clauses is governed by the Supreme Court of Canada’s 2010 decision of Tercon Contractors Ltd. v British Columbia (Minister of Transportation & Highways).  The analysis involves the application of a three-part test.  Justice Binnie wrote:

The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court’s assessment of the intention of the parties as expressed in the contract…If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties”

If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.

The Court ultimately held that the analysis should not even progress past the first stage.  The waiver excluded liability for the “risk of harm for health related issues and physical activity such as self-defence.”  It was not directed at liability for defective premises under the Occupiers’ Liability Act.  The Court also held that the content form was ambiguous, which required interpreting the waiver in favour of the Plaintiff.


Read the full decision [PDF]
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Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.