The case of Zaky v. 2285771 Ontario Inc. serves as a good reminder of the law surrounding the enforceability of waivers.
Introduction
The Plaintiff had attended the Defendant indoor trampoline park. While attempting to land a backflip on a trampoline, he landed on his head and suffered serious injuries including a C7 vertebra fracture that required surgery.
Prior to using the facilities, the Plaintiff signed an electronic waiver document at a computer kiosk. This waiver specifically provided an explicit warning about the legal effect of the waiver and contained an assumption of risks clause. It specifically mentioned the risk of broken bones and mentioned flipping as an activity that could cause serious injury. It purportedly covered claims for negligence and breach of the Occupiers’ Liability Act, regardless of the cause of the harm.
The Plaintiff brought an action in negligence and on the basis of a breach of the Occupiers’ Liability Act.
Issue
The Defendant brought a Motion for Summary Judgment to have the action dismissed on the basis of the waiver. The sole issue was whether the waiver signed by the Plaintiff is a full defence to the action. In particular, the issue was whether the Defendant took reasonable steps to bring the terms of the waiver to the Plaintiff’s attention.
Defendant’s Position
The Defendant took the position that the Plaintiff had not established any reason to depart from the general rule that the waiver is valid and enforceable, regardless of whether he read or understood it. It argued that the exceptions to the general validity of waivers were not made out, and instead, the evidence shows that the Defendant took reasonable steps to bring the terms of the waiver to the Plaintiff’s attention. As such, it argued that there was no genuine issue requiring a trial as the action was contractually-barred.
Plaintiff’s Position
It was the Plaintiff’s position that the Motion should be dismissed. The Plaintiff provided the following evidence in support of his position:
- He only had one experience with the Defendant’s waiver, which was on the occasion when he suffered the injury. He had no familiarity with the content of the waiver;
- The process of reviewing and signing the waiver was rushed (an employee of the Defendant premises pointed to the kiosk and asked the Plaintiff to quickly sign the waiver so he could make his start time and join his friends who had already commenced jumping;
- The Plaintiff had walked over to the touch screen, scrolled through the complex lengthy document, typed his information and pressed the “agree” button;
- None of the important waiver of liability terms captured his attention (they were not bolded, highlighted or in a different colour, and there were no additional check boxes or prompts of any kind throughout the body of the document). Subsequent to this incident, the Defendant changed the document, adding coloured “agree” prompts and check boxes next to the waiver language;
- Apart from the quick interaction with the employee when the Plaintiff was at the kiosk, no further communications were made to him regarding the waiver while he was at the premises; and
- The Plaintiff didn’t knowingly give up his full legal rights.
The Court noted that the Plaintiff was not cross examined on any evidence presented on the Motion, and there was no evidence before the Court from anyone who was present when the Plaintiff visited the Defendant premises, including no evidence from the Defendant itself.
Findings
The Court agreed with and followed the case of Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 (CanLII), which involved similar facts. In the Clarke case, the Plaintiff submitted that she was not provided with adequate time with the waiver and that the guide had failed to emphasize what she was signing. As such, she argued that she did not understand that she was waiving her right to sue. Justice Firestone dismissed the Summary Judgment Motion and emphasized the importance of the circumstances and conditions under which an individual is required to sign the agreement. He indicated that if the contents of the agreement are contrary to what the ordinary person would expect (such as unusually onerous terms) or the circumstances are such that it should be clear that the individual signing the agreement did not know the terms (such as not having enough time to read it or the proper conditions to do so), then the party seeking to rely on the document will have reason to know that the signing individual did not intend to agree to the terms.
The Court also considered eight steps that have been found in case law to constitute reasonable efforts by a Defendant to alert a Plaintiff to the terms of a waiver. The Court concluded that almost all of them did not exist in this case, based on the Plaintiff’s evidence. A review of these factors revealed:
- (a) Website: This was not relevant;
- (b) Posted signs about the waiver: This was not relevant;
- (c) The requirement to sign a waiver before participation: This existed;
- (d) through (g) included specific safeguards contained in the waiver document: These did not apply; and
- (h) Sufficient time to review the document: This did not exist.
The Court noted that the existence of a waiver requirement does not constitute reasonable steps to bring the terms to the attention of the participant.
The Court concluded that there was a genuine issue for trial, and the Motion was dismissed.
