Sign and Beware: The Enforceability of Liability Waivers in Limiting Legal Responsibility
In Bernier v. Ottawa, 2024 ONSC 6725, the plaintiffs brought an action for injuries sustained while participating in a cycling event. The Defendants, Ville d’Ottawa, GrandFondo Ottawa, and Greg Capello, sought to rely on the terms of a waiver signed by the plaintiff to dismiss the action.
Background
The plaintiff, Sandra Bernier, commenced an action on behalf of herself and her two children for injuries she sustained while participating in a GrandFondo cycling event. The plaintiff was volunteering as a ride ambassador, rather than participating in the event as a cyclist.
Prior to participation in the event, Ms. Bernier was provided with a waiver, titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement” by the event organizer, GrandFondo Ottawa. The plaintiff was to complete the registration form and waiver and send it to the defendant in advance of the event. The plaintiff executed the form and sent it to GrandFondo Ottawa a few days before the event.
The first paragraph of the waiver indicated that the document had “legal consequences and will affect your legal rights and will limit or eliminate your ability to bring future legal actions”.
The waiver included a sub-heading titled “Risks” that provided a list of risks associated with the event, specifically placing the onus on participants to remove themselves from the event if they observed anything they felt unsafe, or felt they were unable to safely continue to participate. The waiver concluded with an acknowledgement, in capital letters, that the individual signing the waiver had read and understood its contents.
The defendants proceeded to bring a motion under Rule 20 of the Rules of Civil Procedure for a summary judgment dismissing the lawsuit against them.
The plaintiffs’ position was that the waiver was not applicable to Ms. Bernier as she was a volunteer at the event. The plaintiff further submitted that the waiver was unenforceable and did not protect the defendants from their negligence.
Analysis
As outlined in rule 20.04(2) of the Rules of Civil Procedure, the court will grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or the defence, or if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
Subrule 20.04(2)(b) provides that a court hearing a summary judgment motion shall grant judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or defence. A trial will not be seen as required if a summary judgment motion can achieve a fair and just adjudication.
On a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party has discharged its evidentiary burden, the onus shifts to the responding party. Each party must put its best foot forward to show whether there is an issue for trial.
Decision
Justice Williams granted the defendants’ summary judgment motion and dismissed the plaintiffs’ action. It was her finding that there was no genuine issue requiring a trial with respect to the plaintiffs’ claim.
Reasons
Is the waiver enforceable against the plaintiffs?
In its analysis, the Court first addressed the issue of whether the waiver was applicable and enforceable against the plaintiffs.
The plaintiffs argued that as a ride ambassador, and not a paying participant in the event, the waiver did not apply to Ms. Bernier. The Court noted that the waiver made several specific references to volunteers throughout the form. The Court referenced a specific clause in the waiver that included an acknowledgement that the event “carries with it the potential for death, serious injury and property loss” and, significantly, that the risks “are not only inherent to athletics, but are also present for volunteers and support staff”
The Court found that the waiver was intended to apply to both volunteers and paying participants in the cycling event. This intention would have been evident to any reasonable person reading the waiver.
With respect to the waiver being provided to the plaintiffs without any explanation, the Court found that this did not render the waiver unenforceable. The Court relied on the legal principle found in Arksey v. Sky Zone Toronto, 2021 ONSC 4594, where a person who signs a waiver is presumed to have intended to be bound by it, and that it is not an excuse to say one has not read the waiver. Further, the Court noted that the party relying on a waiver is not obligated to ensure the signing party has read a waiver that they have voluntarily signed. The Court concluded that the waiver was enforceable against the plaintiffs.
Does the waiver bar the plaintiffs’ claim for negligence?
After concluding that the plaintiffs were bound by the waiver, the Court still had to consider whether the waiver barred this claim from negligence.
The plaintiffs argued that Ms. Bernier did not agree to participate in a poorly organized event or to release the defendants if they failed to identify and flag apparent dangers in the event route. It was their position that the defendants negligently organized the event by selecting a route with poor conditions and failing to warn their participants in advance.
In its analysis, the Court referred to cases Arksey v. Sky Zone Toronto, 2021 ONSC 4594 and Ochoa v. Canadian Mountain Holidays Inc., [1996] B.C.J. No. 2026, where it is established that waivers must include enough context for the word “negligence” in order to excuse a party for its own negligence. The Court must be satisfied that the person signing the waiver could reasonably have been expected to understand its meaning and describe the kind of conduct amounting to negligence.
The Court noted that the waiver specifically referred to “liability for my death, disability, personal injury property damage….arising from the negligence, gross negligence or negligent rescue” of the entities covered by the release. These entities included the defendants, particularly Ville d’Ottawa, who oversaw road maintenance.
It was the Court’s view that the waiver expressly stated the risks associated with the event and addressed the negligence that caused the plaintiffs injuries. The waiver explicitly indicated that it was the sole responsibility of the person signing the waiver to be familiar with the event course and route. Further, the Court found that the waiver clearly stated that the person signing it was releasing the “Released Parties”, from “any and all” liability for personal injury caused by negligence or gross negligence.
The Court was satisfied that the waiver was sufficiently clear and comprehensive, and that Ms. Bernier, an experienced road cyclist, was aware and had acknowledged these risks in the waiver. By signing the waiver and participating in the event, Ms. Bernier had voluntarily assumed the associated physical and legal risks. The Court found that the plaintiffs’ action was barred by both the waiver and Ms. Bernier’s voluntary assumption of risk.
Take Away
In this case, the Court found that the waiver had explicitly covered negligence and risks arising from factors such as the terrain and the actions of the event organizer. While not reading the waiver was not an excuse in this case, the decision reinforces the importance of waivers being written in concise, plain language, with provisions being bolded and/or highlighted. In instances where events may have certain risks attached, thought should be given to the specific risks of harm that could reasonably be expected to arise in the course of the activity in question.