In a recent summary judgment decision, the court has, yet again, answered what happens when you sign a waiver without reading it first.
In this case, the plaintiff was riding an ATV in a sandpit at a motorsports park in Brockville when the vehicle tipped backward and landed on him. The plaintiff sustained significant injuries and alleged they were caused, in part, by a failure of the occupiers to maintain the sandpit. He commenced an action. The defendants brought a summary judgment to have the claim dismissed. They relied on a waiver the plaintiff signed when he arrived at the property. If the waiver was enforceable, the plaintiff’s claim was barred.
The plaintiff made several arguments to challenge the enforceability of the waiver:
- The plaintiff thought it was a registration form, not a waiver, and therefore didn’t understand what he was signing;
- The park did not follow its own guidelines of having staff sign and date the waiver once signed;
- He was not participating in the “Event” at the time of the accident and the waiver did not cover where the accident occurred;
- He did not understand the potential implications of signing the waiver;
What did the law say?
The judge dismissed each of these arguments. In doing so, he helpfully went through the law surrounding waivers that had recently been summarized in another decision, Arksey v. Sky Zone Toronto, 2021 ONSC 4564. The general principles are:
- A person who signs a waiver will be presumed to have intended to be bound by it;
- The person is presumed to know what they’re signing. Not reading is not an excuse;
- As long as the plaintiff is provided with an opportunity to read the waiver, there is no obligation for the defendant to ensure the plaintiff has actually read it;
- It is only where a reasonable person should have known that the party was not consenting to the terms, would the defendant have an obligation to make sure they have read the waiver;
Justice Ryan Bell then highlighted the facts that were relevant in deciding to uphold the waiver. First, the park had several signs warning the plaintiff of the event rules, and one near the ticket booth that warned the plaintiff they were signing a waiver.
Second, the waiver was a single page. It had bolded language with plain English headings that warned the plaintiff was giving up certain legal rights, including the right to sue. There were several paragraphs specifically outlining what rights were being given up. The waiver ended with a paragraph confirming the plaintiff had read the waiver, and that it was signed voluntarily.
Third, the judge relied on the plaintiff’s cross examination on his affidavit that no one rushed him through the registration process. He had the opportunity and was provided with sufficient time to read the waiver had he chosen to do so. He could have asked questions about the waiver and had the opportunity to have the waiver explained to him. He did not tell the volunteer who presented the waiver to him that he did not understand what he was signing. He acknowledged that he was participating in an event where he would be driving a four-wheel drive vehicle where there was a risk of injury, and that there were rules associated with attending.
Fourth, the judge concluded that the waiver wording was broad enough to cover the plaintiff’s activities, even though he was not participating in any race. The plaintiff had assumed all the risks associated with the event.
Based on all this, the judge dismissed the plaintiff’s claim.
What’s the take away?
The facts in French v. Augusta Motorsports Park are tragic but highlight the importance of waivers when dealing with high-risk activities. For organizers of high-risk events or activities, this case continues to demonstrate that properly drafted waivers work and can be a complete defence to an otherwise significant exposure. It also suggests that minor deviations from policies and procedures surrounding the signing of the waiver are not enough, on their own, to make it unenforceable. While every case is different, the common thread in this case and other successful waiver cases is the following:
- Waivers should be a separate document;
- To the extent possible, they should be short and avoid legalese;
- Participants should be given an opportunity to read the form before signing;
Following these steps can greatly increase the chance of successfully enforcing a waiver and minimize the risk from what are usually high severity exposures.
See: French v. Augusta Motorsports Park, 2021 ONSC 8385
As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.