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“You can dodge a ball, but you can’t dodge an effective waiver” – Our recent summary judgment win in Arksey v. Sky Zone Toronto

8 minute read

The effect of a signed waiver in the recreational sports context, and the availability of summary judgment to weed out claims that are barred by such waivers are issues that continue to evolve in Ontario.

Our firm recently brought a successful summary judgment motion in Arksey v. Sky Zone Toronto, a case arising from a knee injury that occurred during trampoline dodgeball. Arksey is a noteworthy decision, as it appears to be the first reported case in Ontario that centres on an electronic waiver process.[1]

FACTS

The plaintiff, then a 22-year-old woman, attended the defendant’s premises to play trampoline dodgeball with a group of friends. She sustained a knee injury when one of her teammates threw a dodgeball at her knee from close range. The plaintiff alleged that, despite an obvious knee injury, the defendant’s staff encouraged her to continue jumping on the trampolines. When she did so, her knee injury was exacerbated. She sustained a complete rupture of her ACL.

The plaintiff brought claims in negligence, for breach of contract, and for breach of the Occupiers’ Liability Act. She argued that there were two instances of negligence by the defendant:

(i) failing to properly instruct and supervise the trampoline dodgeball group, which led to a dodgeball being thrown at the plaintiff from close range; and

(ii) failing to follow its own incident response policy by encouraging the plaintiff to resume playing after her initial injury.

Prior to her injury, the plaintiff had digitally signed a liability waiver using a touch-screen computer at a designated “Waiver Station.” The liability waiver was presented to the plaintiff on a series of screens that she was required to scroll through. Key terms of the waiver were emphasized with bolding, capital letters, large font size, spacing, and colour. The waiver began with a specific warning that emphasized the legal effect of the document and encouraged the plaintiff to read the document carefully, in particular:

By signing this document you will waive certain legal rights, including the right to sue.

PLEASE READ CAREFULLY!

The legal terms, including the assumption of risks clause and hold harmless clause, followed this warning. Of note, the plaintiff could not simply scroll through the legal terms. She had to use her finger to check a box to specifically “Agree” to the key terms of the waiver. The plaintiff then pressed a button to “Accept” and sign the waiver.

The plaintiff admitted that she chose not to read the waiver before pressing “Accept.” She further admitted that there were no terms that would have deterred her from signing the waiver; she was prepared to sign it no matter what it said.

The defendant brought a motion for summary judgment. The defendant’s position was that the signed waiver was a complete defence to the plaintiff’s action. The plaintiff and defendant agreed that this issue should be finally resolved via summary judgment. The parties had gone through examinations for discovery and cross-examinations on affidavits.[2]

DECISION

The defendant’s motion was heard by Justice F.L. Myers via videoconference. Justice Myers granted the motion and dismissed the plaintiff’s action, finding that it was “hard to imagine a more explicit waiver or one that was brought to the attention of the signer more explicitly.”[3]

Justice Myers reviewed the legal principles that govern the enforceability of liability waivers in the recreational sports context, including:

  • Where an action is brought under the Occupiers’ Liability Act, the defendant’s obligation is to take “reasonable steps” to bring the terms of the waiver to the plaintiff’s attention. This is an objective test that does not depend on the plaintiff’s subjective intentions.[4]
  • A plaintiff who signs a waiver is presumed to have intended to be bound by it and cannot avoid the consequences by claiming that she did not read it. Knowledge of the agreed terms is presumed from the plaintiff’s signature.[5]
  • There is no obligation on the defendant to ensure that the plaintiff actually reads the waiver she has voluntarily signed. Once the plaintiff is provided with an opportunity to read the agreement, the onus is on the plaintiff to choose whether to do so.[6]
  • The contract must be interpreted to determine whether it captures the plaintiff’s claims. A waiver's terms are to be construed in light of their plain meaning, in the context of the agreement as a whole, and against the backdrop of the objective factual matrix. The plaintiff’s subjective understanding is irrelevant.[7]
  • A waiver can properly exclude liability for the defendant’s own negligence, provided that it provides context for the kinds of negligent conduct that is intended to be covered.[8]

Justice Myers reviewed the evidence and concluded that the defendant had taken the necessary “reasonable steps.”[9] There was signage directing the plaintiff to a designated waiver kiosk. The electronic interface at the kiosk required the plaintiff’s attention, and deliberate, voluntary conduct. She had to use her finger to specifically checkboxes and agree to terms. The visual presentation of the screens were formatted to draw the plaintiff’s focus to key terms. The plaintiff admitted that she had enough time to review the waiver, although she chose not to do so. In concluding that reasonable steps were taken, Justice Myers found as follows:

Short of standing over her and forcing her to read the terms and say out loud to a video recorder that she agrees to play at her own risk despite injury, I do not know what more the defendant could have done to alert the plaintiff. [10]

Justice Myers construed the terms of the defendant’s waiver and found that it explicitly covered the very circumstances of plaintiffs’ claim. The plaintiff had agreed to indemnify the defendant, hold it harmless, and waive any and all claims “DUE TO ANY CAUSE WHATSOEVER,” including the defendant’s own negligence. The waiver provided a context for the kind of negligent conduct that was intended to be covered. It stated that employees may not give complete warnings or instructions. It also stated that employees may fail to safeguard or protect the plaintiff from the risks, dangers and hazards of trampoline activities. Justice Myers concluded that the waiver terms were “clear and not at all deceptive.”[11]

Justice Myers rejected the plaintiff’s argument that the waiver was too “unbalanced” and “vague” to be enforced.[12] Justice Myers held that the plaintiff “exercised her autonomy to weigh the risks and benefits of the proposed transaction” and made “deliberate, knowing, voluntary choices.”[13]

KEY TAKEAWAYS

  • The visual presentation of an electronic waiver on the screen, and the manner in which the plaintiff is required to interact with the screen, play an important role in bringing the terms of the waiver to the attention of the signer.
  • The waiver must contain specific examples of the types of negligent conduct that are intended to be covered. This means the waiver must do more than highlight the inherent risks of the activity in question. The waiver must make it clear that injury can also flow from errors made by the defendant’s own employees.
  • While the plaintiff’s subjective perspective is of limited relevance, it is helpful for defence counsel to obtain admissions that the plaintiff understood the waiver was a pre-requisite to her participation in the activity, that she had sufficient opportunity to read the waiver if she chose to do so, and that she was willing to sign it no matter what it said.
  • It remains crucial that both parties put their best foot forward on a summary judgment motion based on a liability waiver. The waiver issue is less likely to be deferred to a trial if the parties conducted examinations for discovery, completed cross-examinations on affidavits, and agree that the issue should be finally resolved via summary judgment.

[1] See Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10, for a similar case from Saskatchewan

[2] Arksey v. Sky Zone, 2021 ONSC 4594 at para. 7

[3] Arksey v. Sky Zone, 2021 ONSC 4594 at para. 2

[4] Arksey v. Sky Zone, 2021 ONSC 4594 at para. 45

[5] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 21-22

[6] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 23-24

[7] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 5-6 and 42-44

[8] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 46-47

[9] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 26-35 and 50

[10] Arksey v. Sky Zone, 2021 ONSC 4594 at para. 50

[11] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 48-49 and 53

[12] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 51-52

[13] Arksey v. Sky Zone, 2021 ONSC 4594 at paras. 55-56 and 59

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