We’ve all done it: engaged in some risky activity like skiing, been asked to sign a waiver, skimmed through it quickly, signed, and thought little about it as we enjoyed ourselves on the slopes. But did you know that the waiver you signed can have serious implications for yourself and for the company operating the service? Below we will help explain what a waiver is, what some of the implications of signing a waiver are, and recent clarifications to the laws that apply.
What is a “waiver of liability”?
A waiver of liability has two basic purposes. The first is threefold: to warn you (the consumer) of potential risks of participating in an activity; to show that you understand the risks; and to confirm that you consent to participate in the activity, knowing the risks involved. The second is to take away any legal liability from the company or operator in the event of your injury or death.
What are the implications?
In most cases where there is assumed risk with an activity – such as skiing – the waiver is a way to indicate that you are aware of and agree to assume the risk of the activity. This helps to protect the operator because regardless of the care they put in to making the experience safe, there is always a risk someone may be injured due to the nature of the activity.
However, sometimes signing a waiver can mean that if the operator or its employees were negligent you do not have any legal recourse because the operator is protected by the waiver. Basically, a waiver can be used as a defense by the operator if you are injured and want to sue for damages.
This isn’t always the case though, and it will depend on whether the waiver is enforceable. There are many factors that will be considered in the enforcement (or non-enforcement) of a waiver, including the clarity of the wording and the relevant law.
The implications of signing of waiver can be unclear and confusing – Are you giving up your right to sue? Will the operator be held liable? Will the waiver be enforced? – so it’s good to consult a lawyer if you’re concerned about the document you’re asked to sign. But it may also help to know a little about what the law says on the issue of waivers and liability.
The Law: Occupier’s Liability Act vs. Consumer Protection Act
When you sign-up to participate in risky activities on someone else’s property, such as at a ski resort, you will undoubtedly be asked to sign a waiver. And more than likely that waiver will include a provision that protects the operator if you injure yourself during the activity and decide to sue. But whether or not the waiver bars you from suing can be unclear. Especially since there are two applicable, but conflicting, laws.
The first, the Occupier’s Liability Act (OLA), says that an operator can ask that you sign a waiver of liability that they can use as a defense against legal liability if you are injured. The second, the Consumer Protection Act (CPA), says that as a consumer you cannot waive your right to sue. It can get pretty tricky – which law do we follow, the one that allows for a waiver of liability, or the one that doesn’t?
Well, the Court of Appeal helped us answer this question in the recent case, Schnarr v Blue Mountain Resorts Limited. The court ruled that when an activity falls under both the OLA and the CPA, then waivers are allowed and can be used as a defense by the operator. Essentially, the OLA trumps the CPA, and as a consumer you can waive your right to sue by knowingly and willingly assuming the risks involved in inherently risky activities.
This is just a basic idea of where the laws around liability stand and when an operator may be liable for your injuries and when they’re not. However, there are also many context specific factors that are considered in these cases and there are implications to the recent ruling that haven’t yet been seen
If you have any questions or concerns related any specific circumstance, it is best to seek out the advice of a lawyer where the particulars of your case can be considered. At Nanda & Associate Lawyers we provide free initial consultations so that you can understand how a waiver may impact you and your rights in any given circumstance. Feel free call at 905-405-0199.