Are School Activity Waivers Enforceable?
Every school year, parents are inundated with paperwork. There are forms for class lunches, fundraising, information about clubs/sports, and permission forms for field trips. At times, the paperwork can seem endless.
One question we get from parents is whether the waivers they sign for their children are valid. This article will provide an overview of the law, and its application.
What is a Waiver?
A waiver is a legal document used to limit the legal liability of one party to another. Usually, participants are required to sign a waiver before participating in an activity. Waivers are generally enforceable when signed by an adult. There are exceptions where waivers are very complex, or the person’s ability to understand a waiver is impaired by alcohol or drugs.
What about a Waiver signed for a Minor?
In the case of a minor, the law is different. In most cases, a parent or adult must sign a waiver on behalf of a minor so they can take part in an activity.
While it has not been addressed directly in Ontario courts, it is very likely that a waiver will not be enforceable if signed on behalf of a minor. The reason for this rests in contract law.
To have a valid contract, there must be a “meeting of the minds”. This means that the parties to the contract must agree to the terms of the contract. A child is unable to enter into such a contract. They also cannot assign the ability to sign a contract on their behalf to someone else (ie. their parents).
Contracts are typically binding where the child is the beneficiary of a contract, but not where the minor is giving up a right (such as the right to sue).
Courts in New Brunswick and British Columbia have dealt with this issue at the preliminary stages of a lawsuit.[1] In both cases, the entities relying on the waiver were trying to have the cases dismissed at an early stage. Neither of these motions were successful. These cases resolved before trial, and therefore there is no final decision on the enforceability of these waivers.
If the Waiver is not enforceable, then is the school responsible for my child’s injury?
A school board is not liable because a child was injured at school. To have a successful lawsuit, the school board must be responsible for the injury. It is necessary to establish that the school board did or failed to do something to cause or prevent an injury.
As an example, picture a child trying out for the school soccer team. If the child fell after tripping over a defect in the field of play, the school board could be responsible. If the child fell because they lost their balance and fell, there would be no one to pursue for those injuries.
In these types of cases, diligent investigation is essential. Potential issues are the level of supervision, the age appropriateness of the activities, and the equipment used.
If your child has been injured in an incident at school, it is important that you hire a firm with the resources and experience to vigorously investigate and pursue any potential claims.
[1] Dewitt v Strang, 2016 NBQB 28 (CanLII) and Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385 (CanLII)
About the Authors
The son of a grocery store clerk, Kevin grew up outside of Perth, Ontario. He credits his humble beginnings with the development of his underdog mentality, an approach he has carried into his legal career.
He attended McMaster University for two years before being granted early admission to Osgoode Hall Law School. After being called to the bar in 2008, Kevin began practising law in Hamilton before joining a leading Toronto litigation firm, representing Canada’s largest insurance companies on personal injury actions. “I didn’t find it fulfilling,” Kevin recalls. “I was helping companies save money, when what I wanted to do was help the people going up against these major corporations.” Since joining Oatley Vigmond, Kevin has used his insurance-industry experience to protect his clients and recover the compensation they deserved. He’d been at Oatley Vigmond for two months when he settled a matter for a client at a mediation. “You felt the burden of the litigation, and her injuries, lifting off her. I wanted to help even more people experience the relief of having their uncertainty lifted.’”