Liability Waivers: Can You Still Sue?

Many companies require their patrons to sign a liability waiver before they can partake in the proffered activity (think trampoline parks, skiing, gym classes, white-water rafting, etc.). The liability waiver will say that, by signing the liability waiver, you are agreeing to give up your right to sue should you be injured during the activity.

But it may not be that simple. There are certain circumstances in which the courts have found waivers unenforceable.

The Superior Court of Ontario addressed some of these general exceptions in its recent decision of Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380. They include:

  1. Non est factum
    The principle of law applies if you were mistaken as to the “nature and character” of the waiver document (such as the waiver being presented to you as a registration form rather than what it really is – a liability waiver).

    However, the courts have made it clear that carelessness on the part of the signatory does not equate to non est factum. Just because you didn’t bother to read the document, doesn’t mean you can necessarily later rely on the argument that you didn’t know what you were signing.
  2. Misrepresentation or fraud
    This applies if your signature was obtained as a result of you being actively misled or lied to.
  3. Where a reasonable person should have known that the person signing the waiver did not intend to be bound by its terms
    To rely on the terms of a waiver, the defendant needs to do more than just hand over the waiver to be signed. They need to take reasonable steps to bring to your attention that by signing the waiver, you are giving up your legal right to sue (which is also in keeping with subsection 5(3) of the Occupiers’ Liability Act). If they did not, this exception may apply.

To ascertain whether this exception applies, an in-depth analysis of the waiver and the circumstances in which it was signed will be undertaken by the court. The court will look at the following:

  • The length and format of the document;
  • The time available for reading and understanding the document;
  • Whether an exclusion of liability is inconsistent with the overall purpose of the document, and if it is contrary to a party’s “normal expectation”; and
  • Whether the signatory asked any questions regarding the terms of the document or if s/he ever indicated that they were not prepared to sign it.

The courts have commented that a waiver may not apply if the exclusion of liability cause was buried in small print, if the signatory was rushed through the process, if there was a language barrier between the contents of the waiver and the signatory, or if the signatory was pressured to sign.

In analyzing whether a waiver is likely to be enforceable, be sure to look back at your environment when you signed the waiver. Did the person asking you to sign the waiver direct your attention to the exclusion of liability clause? Were there signs posted nearby warning you that by signing you are giving up your right to sue? Were you rushed through the process?

Also be sure to consider the formatting of the waiver itself. Did it contain phrases such as “Please read carefully!”, capitalized letters, highlighting, underlined or bold text, or the use of colour to draw your attention to the exclusion of liability clause?

If these things were present, you may have a hard time getting around the waiver because the author was clearly taking steps to bring the exclusion of liability clause to your attention.

Additional circumstances in which the court may find a waiver unenforceable include:

a) public policy grounds (for example, unfairly taking advantage of social or economic pressure to get someone to participate in the activity requiring the waiver);

b) where the negligence that caused the injury was beyond the scope of what was reasonably contemplated in the waiver (for example, when a participant signed a waiver for the use of trampolines at a trampoline park then slipped and fell on ice in the parking lot); and

c) if the signatory lacked capacity to sign the waiver.

Be warned – the law surrounding waivers in Ontario is constantly shifting. Whether you can get around a waiver depends entirely on the specific circumstances of your case.

If you did sign a waiver, always let your lawyer know immediately. It can have big implications for your case and your ability to sue. It’s important that your lawyer be given the chance to examine the waiver as soon as possible.

Heather Colman
Written by

Heather Colman is an associate lawyer at Greg Monforton and Partners in Windsor, Ontario practicing exclusively in plaintiff-side personal injury litigation. She has a B.A. (Honours) and J.D. from the University of Windsor and is a member of the Ontario Trial Lawyers Association.