You may have signed a waiver before you went sky-diving, snorkelling, or any number of activities that included varying degrees of risk. You probably signed waivers for your kids, when they were playing sports or before a school field trip. Waivers are very common these days. They are a legal attempt to eliminate liability on the part of the party “in charge” of the event/activity, yet they are not foolproof. 

From a company’s standpoint, it takes the liability out of their hands in case a participant takes actions that are outside of the activity guidelines. But there are plenty of instances when something goes amiss and is not the fault of the injured party. Everyone signs a waiver in good faith, yet when something unexpected happens that causes an injury, there are actions that can be taken to overcome the liability waiver assuming it the injury was not caused by the injured party.

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When are Waivers Unenforcable?

All waivers are not alike. Some are written with the appropriate Consumer Protection Act protections while others are intended to scare participants into thinking they are enforceable. For a waiver to be enforceable, it must include language that covers the specific liability of both parties along with being compliant with the consumer protection laws.

Recent court rulings furthered the confusion regarding whether waivers are enforceable or not.  

Misconceptions about Waivers

  • There is a misconception that a waiver cannot hold up in court. That may have been true for a number of cases but in a recent decision of the Court of Appeals in Ontario, it was concluded that a “valid” waiver can prevent a lawsuit for negligence or under the Consumer Protection Act. This may change the way future waivers are viewed in the courts.
  • Conversely, there is a misconception that a waiver will always hold up in court. A successful lawsuit would depend on several factors such as the legality of the waiver, the specific situation/activity and the type of negligence from either party, etc.
  • A waiver signed on behalf of an underaged child is unenforcable. It is unclear whether a minor would be prevented from becoming involved in a lawsuit due to his/her parent signing a waiver in Ontario.  It seems unfair that an injured child would be barred from suing a negligent party when that child did not have the legal capacity to waive his/her rights. At least one jurisdiction in Canada has held that a parent cannot waive the rights of his/her minor child, however, that is not yet the law in Ontario. 

Should You File a Personal Injury Claim or a Lawsuit?

Regardless of whether start a lawsuit, you should focus on your medical recovery.  If you do file a lawsuit, you will be suing the person/company that was at fault. If it cannot be settled out of court, it will be resolved by a judge or jury in a court setting.  You will need a personal injury lawyer that has experience with liability waivers. If you have a lawyer, she/he will be gathering evidence that will support your claim in court. While your lawyer will attempt to settle your claim outside of court, it is in your best interest to be prepared for a lawsuit in the event settlement discussions do not yield a reasonable result.

Next Steps

There is a statute of limitations on injury claims so make sure you find out the appropriate time limitations to commence a lawsuit.  In general it is a good idea to notify the at fault party that you have been injured, provide a brief description of your injuries and provide the information of when and where the injury occurred.  A lawsuit may or may not be the next step, depending on your recovery and/or the outcome of your discussions with the at fault party or its representative.  

DWA LAW – Experienced in Overcoming Liability Waivers

Our experienced attorneys are highly conversant in all types of injury law. What that means for you is outstanding support from some of the best attorneys in Ontario. Contact us for a free consultation where we can give you an overview of what to expect during the process. Contact us here or call our Hamilton office (905) 777-0300 or our Guelph office (519) 836-0300 today.

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