In a recent article, I wrote about the necessity of obtaining new liability waivers whenever there might be any doubt if one applied. I also noted that, while liability waivers are considered draconian and set aside or read done whenever appropriate, they can be and are often upheld.
In the recent decision of Alton v Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII), the court ultimately determined to uphold a liability waiver and the decision reiterates the law applying to liability waivers.
The plaintiff in the case was thrown from his bike when at the corner of a motocross track and impaled his leg on either some brush or a fallen tree. He sued the organizing national authority, the owners of the land and the organization which leased the motocross track. The defendants primarily defended on the basis that the plaintiff signed a waiver. The plaintiff replied to this defence claiming that he was not aware he signed a waiver, the waiver didn’t apply or that the waiver only applied to certain of the defendants.
As part of his applying to participate in the 2012 season, the plaintiff executed and submitted a four page document including a waiver which he signed on the third and fourth pages. The document contained a clear waiver which visually highlighted that it was a broad and complete waiver. Prior to the race in question, the plaintiff also signed a further one page document with a similar waiver to the four page document.
The plaintiff gave evidence that no one explained the one page waiver and that he did not understand the legal consequences of the waiver despite also conceded he understood that injury and even death were common risks with his sport.
A witness for the defence who witnessed the execution of the one page waiver gave evidence, which was accepted, that the plaintiff’s name was not prefilled on the waiver, that she witnessed the execution of the waiver, that it was her practice to explain that the waiver meant a rider gave up their rights to sue and that she would insist that a rider understood the waiver before signing.
As with the decision covered in my prior article, the Court in Alton cited Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways), 2010 SCC 4 (CanLII) as identifying three questions a court must assess in respect of the exclusion clause found in waivers:
- whether as a matter of interpretation the exclusion clause applies to the circumstances;
- whether the exclusion clause was unconscionable at the time the contract was made; and
- whether the court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy.
The court then went on to analyze whether the exclusion clause applied to the circumstances of the case before it. In doing so, it cited Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII) at paras. 56-60 which contains the following material observations (citations excluded):
- waivers are subject to ordinary principles of contractual interpretation; however, the additional rule is added that waivers are interpreted to cover only those matters which were specifically in the contemplation of the parties at the time the release was given;
- whether a waiver applies can be framed as a twofold analysis in which the court examines whether the terms of waiver are broad enough to encompass the plaintiff’s claims and whether the plaintiff is bound by the terms of the waiver;
- there is no general requirement for the party relying on the waiver to take steps to inform the signing party of the onerous terms or to ensure the signing party understands the terms except where:
- the waiver is signed in circumstances in which it was not the signing party’s own act to sign;
- the waiver is induced by fraud or misrepresentation; and
- where the party relying on the waiver knew or had reason to believe the signing party was under a mistake as to the waiver’s terms.
The court noted that the analysis of whether a waiver applies is not purely subjective, but involves and object component; requiring the court to ask what a reasonably careful person would believe when reading a waiver.
The court found that both waivers were clearly titled with bold, capital letters. The longer waiver was intended to be reviewed and completed at home without any rush to return same; giving the plaintiff full opportunity to review it. The one page waiver contained the same release as the longer waiver and a waiver the plaintiff signed for the previous season. The Plaintiff also spoke English and had full mental capacity. There would be no confusion as to the nature of the waivers when put in front of the plaintiff and their purpose was clearly marked.
The waivers included broad and comprehensive language which clearly included the types of injuries suffered by the plaintiff. The court also found that the defendants were included in the categories of releasees covered by the waiver.
While it is unfortunate that the plaintiff in Alton was hurt without the ability to seek compensation for his injuries, he executed a clear waiver in circumstances in which the nature and coverage of the waiver ought to have been clear to any reasonably careful signatory. The case illustrates that waivers can be a complete bar to the right to sue and that participants being provided a waiver have the option to opt out of the activity if they are not comfortable with solely bearing the risk associated with it. The case is also illustrative of the need for parties offering to provide risky activities to the public to have a clearly worded waiver and to implement good systems that ensures that such waivers will be upheld.
By Jeremy Burgess, Pushor Mitchell LLP
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