Legal Brief for October, 2010

Releases and Waivers - What Happens If I Sign?

It is common practice for many businesses and organizations to ask customers or participants in activities to sign a "release" or "waiver of liability" prior to taking part in the event or activity.  The standard wording is often along the lines of

"I acknowledge that what I am doing has a risk of physical harm or injury, and I agree that I am assuming the risks voluntarily, and that if I am injured in any manner I will have no right to claim for compensation against the sponsor/holder of this event."

These sorts of documents, also known as "exclusion clauses", are often used in association with school field trips, outdoor recreational activities such as whitewater rafting or downhill skiing, and in general with events that may involve a risk of injury.  Sometimes the participant is asked to sign an actual form.  In other cases there is simply a warning notice printed on an admission ticket or on the wall behind a cashier.

Despite the best of intentions of everyone involved, things can and sometimes do go wrong in these situations.  There may be a collision between two skiers on a hill, or there may be a car accident on a field trip, or someone may slip while getting out of a raft.  In each case serious injuries may be the result.  Does the injured person lose the right to sue the organizer of the event if they have previously signed a waiver or release document?

The general rule is yes.  A properly drafted and presented waiver or release will protect the holder or sponsor of an event from legal liability.  Courts in Canada have consistently ruled that if the waiver is written in clear and understandable terms (i.e.  plain language, not legalese), if the person is given a reasonable amount of time to read it and to ask questions, and if it is made clear to the person signing that they will give up legal rights to sue if they sign, then the document will usually be held to be valid.  

It is no excuse for the person signing the document to say that they didn't understand it (as long it was written in clear and intelligible language) or that they didn't fully read the document.  Courts are always vigilant to uphold what they view as contractual arrangements between consenting parties.  

So the next time you are in the mountains and decide you finally want to go on that white water rafting trip down the Athabasca River, and you are asked to sign a waiver before going on the trip, make sure you read and understand what it is you are signing.  What you sign can and will be held against you in a court of law!