Legal Ease, April 20
What does a waiver mean?
Almost any time you go into any sports or recreational activity you have to sign a waiver.
It’s the sort of thing written in fancy language that’s hard to follow in detail, but which amounts to a statement that no matter what happens, you can’t sue anyone for anything.
The idea is to protect the operators of various activities from crushing liability if there is an accident and someone is injured or killed.
So if I am, say, at a hockey game and get hit by a puck, the waiver may stop me from suing for my injuries.
Which is reasonable enough—if I don’t want to run the risk of being hit by a puck I don’t have to go to the game.
(And that also means if I am just walking by a baseball game, and so, saw no waiver, and get hit by a ball, I haven’t given up any right to sue.)
These waivers tend to be binding on their own terms, assuming the patron has a reasonable chance to see the waiver and the waiver is not on its face unreasonable or unconscionable.
A waiver and release of liability, properly drafted and brought to the attention of the patron, will usually release an operator from liability.
That’s important to remember. Usually, waivers are binding.
I’ve often heard people say something like “a waiver isn’t worth the paper it’s written on”—I’ve even heard lawyers say that.
That idea is exactly backwards; in general, if you sign a waiver you are bound by it.
The courts have considered whether a waiver of liability is binding and have applied a three-step analysis:
1. Did the patron know what they were signing? Was the waiver brought to the patron’s attention? Did the operator take reasonable steps to bring the waiver to the attention of the signatory?
2. What is the scope of the waiver and is it worded broadly enough to cover the conduct of the operator? This is important, because even if a waiver is binding, if it doesn’t waive the conduct of the operator it’s irrelevant.
It’s important to read the waiver closely to see if it clearly covers the situation; and in the case of any ambiguous language, the waiver will be interpreted against the operator.
3. Finally, should the waiver not be enforced because it is unconscionable?
“Unconscionable” is hard to define but broadly put, it is an agreement so extremely unjust, or overwhelmingly one-sided, that it is contrary to good conscience.
Typically, an unconscionable contract is held to be unenforceable, because no reasonable or informed person would otherwise agree to it.
As you can see, for a waiver to be unconscionable requires a very high standard, and in general, waivers will be binding.
James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.