One of the things I am most frequently asked about is liability waivers. Specifically, what happens if you sign a liability waiver and then are seriously injured during an activity?
For those who are unfamiliar, when a person participates in almost any event, such as mountain biking, a running race or downhill skiing, they are asked to read and accept a number of conditions. These conditions typically include a clause whereby you assume all risks associated with an activity and agree not to sue the operator of a resort or organizer of an event in case you are injured.
While there are many complexities and nuances surrounding the law of waiver, they are typically enforceable. Courts in Ontario and across the country have agreed that where an adult has signed a document they are bound by its terms. This includes situations where a party claims not to have read the document in question – the host is entitled to rely on a signed waiver as evidence that the risk has been assumed.
There are, however, exceptions to the general rule. These include the following:
– The risk is not outlined – contracts must be read narrowly. If the waiver signed by a participant does not cover a risk specifically, the injured party may have a claim. For example, if you signed a waiver regarding skiing but were injury in a slip and fall in the chalet, the waiver may not be effective.
– There is misrepresentation – if the host of an event misrepresents the purpose and effect of a waiver, it will not be enforceable.
– The person does not have capacity – a waiver is not enforceable if a person is not an adult or does not have the mental capacity to sign a contract. In the case where someone is obviously impaired by alcohol or drugs, a waiver may also not be enforceable.
When I am asked this question, the advice I give is always the same – while the situation is likely bleak, consult a lawyer. They have the expertise to review the nature of your accident and the waiver to determine if you have an avenue to recover for your injuries despite signing a waiver.
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