The Saskatchewan Court of Queen’s Bench recently upheld an electronic waiver as enforceable in Quilichini v Wilson’s Greenhouse, 2017 SKQB 10.
The plaintiff in the case was injured while go–karting at a racing facility operated by Velocity, a business owned by the defendant Wilson’s Greenhouses. It was contended by the plaintiff that the defendants either: (a) breached their contractual obligations to maintain the go–kart in sufficient working condition, or (b) engaged in a negligent breach of the same obligation.
The defendants contended that the plaintiff’s injuries were incurred as a result of his own conduct, including driving at excessive speed. Moreover, the defendants brought an action for summary judgement dismissing the plaintiff’s action, given that the plaintiff executed an electronic form of waiver and release that the defendants argued was binding on him.
The form of waiver
Velocity’s go–kart customers are required to proceed through a kiosk system where they must provide personal information, complete a membership application, pay for such membership, be photographed, and go through a series of electronic pages on a computer screen and click “next” to move from one page to the next. As a final step, customers must agree to terms of a waiver and release. As the plaintiff had proceeded through the kiosk system and successfully completed all of the steps required to race at the facility, the defendants asserted that the plaintiff had no claim enforceable at law. The plaintiff countered by arguing that whether he had signed the waiver or not was equivocal and that, even if signed, the waiver did not absolve the defendants from liability.
Saskatchewan, like all the other provinces in territories in Canada, has electronic commerce legislation. This type of legislation is intended, generally, to mandate the equivalency of electronic documents with traditional paper documents. As with most legislation, there are exceptions to this statutory equivalency. The statutes also generally specify the conditions under which electronic documents and electronic signatures will be valid and enforceable.
In considering the parties’ assertions, Scherman J properly focused the scope of the inquiry on the section of the Electronic Information and Documents Act (2000, SS 2000, c E‑7.22) that pertains to the formation and operation of contracts (i.e. section 18), as opposed to the section of the Act that focuses on signatures (i.e. section 14). Considering the legislation in the context of the case at bar, Scherman J held that:
The legislation is clear. Agreement to contractual terms can be expressed by touching or clicking on an appropriately designated icon or place on a computer screen. The fact that the contract could have alternatively been executed by printing a hard copy and having a participant sign a hard copy form does not detract from the foregoing. The fact that there are optional ways to execute the contract does not lead to the conclusion that using only one of those options does not constitute agreement.
Further, the Court held that the waiver was indeed enforceable, given that the plaintiff had the full opportunity to read the waiver and there was nothing obscure in the presentation of the waiver and release or the choice of whether to accept or not:
In my opinion, there can be no question but that when the plaintiff clicked “I agree”, he was intending to accept and assume responsibility for any possible risk involved and knew he was agreeing to discharge or release the defendants from all claims or liabilities arising, in any way, from his participation. The words “all claims, liabilities, demands and/or actions for damages (including legal costs) arising in any way from my participation in go‑kart racing” mean what they say and include claims arising from negligence.
Scherman J supported this conclusion by pointing to various concurring common law decisions addressing the enforceability of waiver and release agreements. The Court consequently provided for summary judgement in favour of the defendants (with costs).
Lessons for business
The decision in Quilichini v Wilson provides affirmation to business owners (especially those in the recreational industry) that a well–drafted electronic waiver and release that is properly presented in an understandable format will likely be held to be enforceable. The result thus helps provide for commercial certainty in the electronic era, as it properly places the emphasis on substance (i.e. the clear understanding and intent of the parties to waive liability) rather than form (i.e. the use of electronic waiver as opposed to traditional paper signatures).
By: Krupa Kotecha, McCarthy Tétrault LLP
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