The law recognizes that individuals enjoy risky physical activities, but sometimes it can hurt to have fun. Injuries do happen. The consequences of an injury can also hurt the businesses that offer these activities, particularly where the business cannot rely on a signed liability waiver.
FACTS
In Avdichuk v. Skyventure Ontario Ltd., 2021 ONSC 3171, the Plaintiff attended an indoor skydiving park and suffered a fractured wrist after falling from the top of a wind tunnel to the floor. The injury required significant surgery, including the insertion of a plate and screws.
The Plaintiff commenced an action for damages, alleging that the Defendant was negligent for failing to properly educate, instruct and advise the Plaintiff while he was engaged in the indoor skydiving activity.
Prior to starting his indoor skydiving session, the Plaintiff signed a form entitled “Participant Undertaking and Risk Acceptance Statement.” It is noteworthy that the document was not called a “release” or a “waiver of liability.”
The Defendant brought a motion for summary judgment. It argued that the Plaintiff’s personal injury action was barred by the “assumption of risks” clause in the form he signed before his injury. The text of that clause is reproduced below:
ASSUMPTION OF INHERENT RISK: I am aware of the nature of activities of iFLY Toronto, which involve use of an indoor skydiving and freefall simulator, in a wind tunnel that generates winds of up to 350 km/hr. I acknowledge and accept that these activities involve inherent risks and that, by participating in these activities, I am exposing myself to substantial risks of injury, which may be serious or even fatal.
I acknowledge and agree that it is in full cognizance of these substantial risk and dangers that I nevertheless agree to participate in the Activities. I acknowledge that iFly Toronto may not be held liable for any physical harm or accident that may result from my participation in the Activities, and that iFly Toronto may argue my acceptance of these risks in a legal proceeding.
I understand and accept the risks related to these Activities.
Importantly, the form signed by the Plaintiff did not include a specific exclusion of liability clause where the Plaintiff agreed to hold harmless, release, and indemnify the Defendant in the event of an injury. Further, the form did not include the word “negligence” or otherwise state that the Plaintiff was giving up his right to sue for injuries caused by the Defendant’s negligence.
The Defendant argued that the waiver issue could be decided on a motion for summary judgment, as the only question was a legal one – namely, whether the Defendant took “reasonable steps” to bring the exclusion of liability to the Plaintiff’s attention, as required by s. 3(3) and 5(3) of the Occupiers’ Liability Act.
DECISION
The Defendant’s summary judgment motion was dismissed. While the motion judge did not foreclose the possibility of a successful waiver defence at trial, he was not prepared to decide the issue on a motion for summary judgment.
The motion judge emphasized the title of the Defendant’s form, which did not clearly proclaim its purpose as a waiver of liability. The Plaintiff’s uncontradicted evidence was that he thought he was signing a registration form, not a waiver of liability.
In considering whether the Defendant took the necessary reasonable steps to bring the waiver’s terms to the Plaintiff’s attention, the motion judge noted:
- there was no evidence regarding the Defendant’s website and whether it stated that the waiver was a prerequisite to participating in the activity;
- the requirement to sign a waiver was not displayed on signage in public areas at the Defendant’s premises;
- the waiver did not contain a prominent admonition to read it carefully (i.e., in the form of a heading or warning at the top of the form);
- the Defendant’s registration process did not ensure liability waivers were signed before the customer was allowed to pay for and participate in the activity;
- the Defendant did not use formatting or stylistic changes (i.e., colour, bolded type, highlighting, etc.) to draw the Plaintiff’s attention to the clause it sought to rely on; and
- there was insufficient evidence as to whether the Plaintiff was given sufficient time to read the form and consider its terms.[1]
Of note, the motion judge also made the following comment, ostensibly in relation to the Defendant’s onus in proving its waiver defence: “[I]t must be shown that the participant had fully understood and agreed to its terms.”[2] This comment appears inconsistent with the general proposition that, where an individual signs a waiver voluntarily, they are bound by their signature, regardless of whether they fully appreciated or understood its content.[3] It is also wellestablished that a defendant seeking to rely on a waiver has no obligation to explain it to the plaintiff or otherwise ensure that the plaintiff has read or understood it before signing.[4]
Ultimately, the motion judge found there was insufficient evidence in the record before him to decide the waiver issue. Among other things, there was no evidence from the Defendant about the circumstances surrounding the signing of the document by the Plaintiff. As a result, the Court found there were several genuine issues requiring a trial, including:
(i) whether the Plaintiff knew and appreciated what he was signing;
(ii) the exact circumstances in which the Plaintiff read and signed the form;
(iii) whether the Defendant made reasonable efforts to bring the liability release to the Plaintiff’s attention; and
(iv) whether the Plaintiff agreed to assume the legal risk of the activity, as the wording of the liability waiver did not exclude liability for negligence.[5]
KEY TAKEAWAYS
This decision provides guidance for occupiers who intend to rely on liability waivers, and the lawyers who are defending them in personal injury actions, in particular:
- The title of the document should loudly proclaim its purpose such that a reasonable person would understand the thrust of the document solely based on the title. It is risky to rely on an assumption of risks clause or exclusion of liability clause that is buried in a document that appears to be a simple registration form or participation form.
- The document should have a large warning at the outset to signal to the reader that it is an important legal document that will affect their rights, including the right to sue.
- The key terms of the waiver, including the assumption of risks clause and exclusion of liability clause, should be emphasized in a clear way – e.g., by requiring the participant to initial or check a box to specifically agree to them.
- Strategic visual formatting in terms of colour, bolding, font size, and highlighting go a long way towards satisfying the occupier’s obligation to take reasonable steps to bring the terms of a waiver to the attention of the participant.
[1] Avdichuk v. Skyventure Ontario Ltd., 2021 ONSC 3171 at paras. 53, 58, 64, 66, and 82
[2] Avdichuk v. Skyventure Ontario Ltd., 2021 ONSC 3171 at para. 84.
[3] Arif v. Li, 2016 ONSC 4579 at para. 52 citing Stephen M. Waddams, The Law of Contracts, 6th Ed., (Toronto: Canada Law Book, 2010), at para. 318.
[4] Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 at para. 24; Arif v. Li, 2016 ONSC 4579 at para. 58.
[5] Avdichuk v. Skyventure Ontario Ltd., 2021 ONSC 3171 at para. 83.
