Bernier v. Ottawa (Ville),2024 ONSC 6725 (CanLII) is a recent waiver liability case which clarifies the interpretation and enforceability of waivers purporting to waive negligence and the importance of the context and circumstances in which a waiver was signed.
The defendants, and third party in the action, collectively brought a summary judgment motion to dismiss the plaintiffs’ action.
In 2018, Ms. Bernier suffered injuries in a road cycling event when she fell off her bicycle while crossing an intersection with railroad tracks. She later learned that a friend fell at the same location. She brought a claim for damages arising from her injuries, as well as on behalf of her minor children as Family Law Act claimants, against the corporation and owner who organized the road cycling event for their negligence relating to the organization of the event, as well as against Ville d’Ottawa for negligence in maintaining the public roadway where Ms. Bernier fell.
The plaintiff was a volunteer for the event, serving as a “ride ambassador” — an experienced cyclist enlisted to assist participants during the event.
Prior to the event, an email regarding volunteer jersey sizes was circulated, and included a waiver of liability titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement.”
The first paragraph of the waiver included a warning of legal implications. It outlined a list of various risks of participating in the event, including the potential for death and serious personal injury. At the end of the waiver was an acknowledgment in capital letters that the person signing the waiver understood its content, the nature of the cycling event and was signing the waiver intentionally and voluntarily. Ms. Bernier signed the waiver.
The plaintiffs took the position that the waiver Ms. Bernier signed was not enforceable because Ms. Bernier was not a paying participant, but a volunteer assisting with the event.
They also argued the waiver had been sent by email without any explanation. In their statement of claim, the plaintiffs pleaded that the defendants were negligent in their planning of the route, and failure to identify and alert participants to hazards, like the railroad tracks where Ms. Bernier fell. They claimed Ville d’Ottawa was also negligent for its maintenance of the roadway where the cycling event took place. The plaintiffs argued that the waiver did not protect the defendants from their negligence.
The issue on the motion was whether the plaintiffs’ action was barred by the waiver or because Ms. Bernier had voluntarily assumed the risk of injury.
To determine the issues, first the Court looked at whether the waiver was enforceable. If the waiver was found to apply, the issue was then whether it barred the plaintiffs’ claims for negligence.
Whether the waiver applied
The Court held that the issue of whether the waiver was enforceable on the plaintiffs was not an issue requiring a trial but an issue that turned on the interpretation of the waiver.
The Court found the waiver was enforceable.
The waiver included several clear and unequivocal references to “volunteers”, including an acknowledgement that the event carried, “the potential for death, serious injury and property loss”, and that the said risks were “inherent not only to athletics, but present for the volunteers and support staff.” There were also various other references made throughout that the waiver was intended to also apply to event volunteers.
The Court found that the intention of the waiver to apply to volunteers would have been evident to any reasonable person reading the waiver.
Whether the waiver was unenforceable because it was provided ‘without explanation’
The Court determined that this issue did not require a trial.
Whether Ms. Bernier signed the waiver was not in dispute. She admitted that she did not read it word for word before signing it. She did not argue that she had insufficient time to read or consider the waiver, and her partner, who also participated in the event, also gave evidence that he had had sufficient time to both read the waiver and ask any questions. Ms. Bernier had also signed the same waiver the previous year for the same event in 2017. Her evidence was that she did not read the waiver carefully and simply stopped reading it once she believed that it did not apply to volunteers. She signed the waiver anyway and returned it.
The Court found that Ms. Bernier had sufficient time to read the waiver carefully had she chosen to do so. She was already familiar with the waiver, having signed the same document the previous year. There was no language barrier.
The Court was satisfied that the fact that the waiver was provided to Ms. Bernier by email and without any explanation, had no bearing on its enforceability.
Whether the waiver barred the plaintiffs’ claims for negligence:
Citing the Ontario and British Columbia decisions in Arksey v. Sky Zone Toronto, 2021 ONSC 4594 (CanLII) and Ochoa v. Canadian Mountain Holidays Inc., 1996 CanLII 378 (BC SC)
respectively, to determine whether the waiver barred the plaintiffs’ claims for negligence, the Court had to consider whether with both the wording of the waiver and Ms. Bernier’s familiarity with the cycling event, Ms. Bernier reasonably could have understood the waiver to exclude claims for damages caused by the negligent organization of the event, negligent failure to identify and alert participants (including volunteers) to dangerous areas on the designated route or the negligent maintenance of roadways.
First, the Court was satisfied that the waiver covered both the context in which the risks occurred, and the negligence claims against the event organizers. By signing the waiver, Ms. Bernier, as an experienced road cyclist, had expressly given up her right to allege that the defendants were negligent in failing to identify and warn of hazards on the route: she had agreed that it was her sole responsibility to be familiar with the event course and route when she signed that waiver.
Similarly, for the plaintiffs’ claim against the municipality, there were several references in the waiver indicating that such a claim would be barred by the waiver, including that the “terrain” was one of the risks being assumed by the signor, as well as the signor’s familiarity with the event course, and even a clause that the signor was agreeing to release all cities, towns and other municipal agencies in the event of an injury on their properties, even if that injury arose as a result of their negligence or gross negligence.
The Court found that negligence claims against all three defendants were barred by the waiver. Further, the claims of the two children were barred by the waiver, as dependents do not have the right to sue unless the injured party has the right to sue (Family Law Act, R.S.O. 1990, c. F.3, s. 61(1))
Although the Court had already found that the action was barred by the waiver, Justice Williams briefly touched on whether Ms. Bernier had voluntarily assumed the risk of injury. The Court agreed that she had: Ms. Bernier was very experienced with road cycling and had admitted on examination for discovery her awareness of the risk of falling while cycling on roadways due to potholes and road conditions. She signed the waiver knowing of the risks that came with such an event.
Summary judgment was granted. The plaintiffs’ action was dismissed.
