The Value Of Waivers With Higher Risk Activities

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The Value Of Waivers With Higher Risk Activities
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• Do you enjoy skiing? Snowboarding? Horseback
  riding? Do your kids enjoy these activities?

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• If so, you have probably signed a waiver at some
  point or other, indemnifying the business
  offering the recreational activity from
  liability, if you were to get hurt in the pursuit
  of those activities. But do these waivers hold up
  in court?
• For a while in Ontario, they didnt.

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What Happened To Waivers In Ontario?

• The Ontario Superior Court, in 2017, poked some
  holes in the liability protection purveyors of
  higher risk activities had relied on for decades.

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• The court allowed two lawsuits to proceed
  against ski resorts in Ontario, finding that the
  waivers the two plaintiffs agreed to were negated
  by the resorts failing to observe certain
  requirements under the Consumer Protection Act.

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• For insurance companies who provided liability
  coverage for higher risk activities, this was a
  big concern.
• After all, if the waivers werent going to be of
  any value, the cost of insurance would surely
  have to skyrocket, making these sports
  effectively uninsurable.

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• On appeal, the court ruled on March 28th that
  the plaintiffs in those cases were subject to the
  waivers that they agreed to.

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• Court of Appeal for Ontario Justice Ian
  Nordheimer wrote in his decision that if the
  conflict stood, then resorts would be held
  liable for something that they thought they had
  lawfully protected themselves against and that
  this was absurd. (SOURCE)

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What Are The Implications Of The Court Decisions?

• Two things First, companies that offer
  recreational services that have a reasonable
  expectation of some risk for participants should
  not rely wholly on the idea that they are
  protected by waivers.

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• They are not the be all and end all those
  companies should be performing their due
  diligence to make sure that they have clear risk
  management policies and that they review them
  regularly.

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• In other words, these companies have a duty of
  care and have to make sure they are doing
  everything practicable to keep participants safe.

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• These companies also need to make sure that the
  participants in the activities are aware of the
  waiver. Its not good enough to say By buying
  this ticket, youre accepting these risks.

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• Second, individuals signing waivers to
  participate in higher risk activities need to be
  aware of the difference between true negligence,
  such as chair lifts that havent been serviced in
  three months, resulting in a breakdown that
  caused injuries and unforeseeable issues,

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• such as a tree limb falling in the middle of the
  day from old age (not high winds or a storm),
  half way down a less frequented run and the
  resort was not yet aware of the problem.

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• As adults, we all have to be responsible for our
  actions and our choices. When a choice weve
  made, including hurtling down an icy slope with
  no lessons or experience, goes wrong, there has
  to be some element of that blame that falls
  squarely on the individual.

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• That said, if presented with a case where a
  person was injured and is claiming negligence by
  the business providing the recreational activity,
  the courts will look at a couple of things
  including whether the waiver was comprensible to
  the person (or was it full of legalese?)

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• whether and how the waiver was given to the
  participant (or were there just at your own
  risk signs everywhere?) and when the waiver was
  presented.

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• In other words, did the participant know and
  understand the waiver before they committed
  themselves to participating in the activity?

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What About When Parents Sign For Their Kids?

• Children cannot legally enter into a contract,
  which is what accepting a waiver entails.
• Parents are asked to sign these liability forms
  on their behalf before their children participate
  in martial arts classes, ski or riding lessons,
  to name a few.

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• But are the businesses truly protected and can
  parents be barred from suing on behalf of their
  children, in the event of injury?
• This is a point of law that is still in dispute.

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• It still comes down to negligence, but even with
  kids, there is an assumption that you know the
  risks if your child is participating in something
  that could be dangerous. As long as that activity
  has been engaged in as safely as possible, and
  all reasonable precautions are taken by the
  service provider, the waiver should stand.

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• Also keep in mind that, since a limitation
  period to sue does not begin to run for a minor
  until theyre 18, what would prevent them from
  waiting until their 18th birthday and then suing
  the ski resort in their own right? In this
  instance, by arguing that they can not be bound
  by a waiver they never signed or legally agreed
  to.

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• These are incredibly complex points of law, in
  the realm of personal injury, so if youre ever
  injured in the course of an activity, whether or
  not you signed a liability waiver, check in with
  a personal injury lawyer to make sure that
  everything in your case is double checked, with
  is dotted and ts crossed.