Authored for and Published in CICMA March 2019 Newsletter.
Your child has been invited to her best friend’s birthday party at Charlie’s Pizza Palace.
You drop her off at the party. Before you can leave to enjoy the next two hours of freedom, the clerk at Charlie’s hands you a piece of paper and says, “sign here”. Of course, it’s a Release of Liability Waiver, whereby in exchange for allowing your exuberant child to play with her friends in the arcade, or enjoy one of Charlie’s famous pizza rolls, you agree to absolve Charlie’s (and his employees, family members, friends, enemies, and anyone in Canada named Charlie) from liability if your child gets hurt.
Do you sign?
If no, will your child ever speak to you again after you and she are escorted off the property?
If yes, and she gets hurt, can she sue Charlie’s?
Waivers and Liability Release Clauses
Let’s take a step back and discuss these Waivers[1]appearing every time you try to do an activity with an operator/occupier, from skydiving, to laser tag, to arts & crafts.
The general rule on Waivers in Canada is that they are valid and effective if the language of the exclusion refers to the circumstances of the accident and, in the case of negligence, the language excludes liability for risks or injuries caused by negligence. Furthermore, the operator must take reasonable steps to bring the exclusion or Waiver to the attention of the participant so that its effect is understood. Where the evidence confirms that an adult knowingly signs a form that completely absolves the operator or his or her agents, the exclusion will be effective.
In theOntario Superior Court of Justice case of Isildar v. Rideau Diving Supply[2], a 28-year old had a tragic accident while participating in a scuba diving activity. He drowned. His family sued the operator, who relied on a Waiver and Liability Release. Roccamo J. reviewed the jurisprudence on waivers/liability releases and summarized it as follows:
Based on case law as it has developed, a three staged analysis is required to determine whether a signed release of liability is valid. The analysis requires a consideration of the following:
- Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?
- What is the scope of the release and is it worded broadly enough to cover the conduct of the defendant?
- Whether the waiver should not be enforced because it is unconscionable?
She held, on the facts of that case, that the release in question was valid and, accordingly, the action was dismissed.
Waivers and Children
We know that Waivers can be enforced against adults, because Waivers are contracts and adults are allowed to enter into contracts. This principle was recited in Isildar, as follows:
It is a general principle of contract law that where a party signs a document which he knows affects his legal rights, the party is bound by the document in the absence of fraud or misrepresentation, even though the party may not have read or understood the document.
But what happens if a child signs a Waiver?
My Grade 8 daughter recently brought home a permission slip from school so she could go skating with her class at a local arena. Unsurprisingly, included with the forms from school was a two-page Waiver form from the arena. The form asked us to agree to absolve the arena (and pretty much everyone who lives within 100 kilometres of it) from any and all liability if my daughter was hurt on their premises. The way the document was worded, we would be absolving them from anything and everything that could possibly happen that day, including falling on ice, getting knocked down by a Skate Patrol person, getting stabbed by skates, drowning, and falling through the black hole at Centre Ice.
My options were to sign the form and send her to school that day wearing my hockey equipment, or saying “nope, sorry”. Fearing significant backlash from my 13-year-old (who was already getting her skates ready for sharpening), I said “You sign it.” She did. And she went skating and, thankfully, returned unharmed.
Why did I tell her to sign it? Because a contract signed by 13-year-old is most likely unenforceable in these circumstances[3]. If heaven forbid something would have happened to her, I would have challenged the arena to try and enforce the alleged contract.
This isn’t to say that we would have won.
After the skating trip, I did some research and was surprised to learn that Canadian case law on minors and Waivers doesn’t really exist. Except in British Columbia, where the Legislature put it right into their Infants Act that a contract made by a minor at the time the contract was made is unenforceable against her, except in specified circumstances that in most cases wouldn’t apply to Waivers.[4]
There is no authority anywhere else in Canada that states that a Waiver signed by a child is unenforceable against her. But I would be surprised if a judge enforced a Waiver against a child, given the hurdle of satisfying a court that the contract was not detrimental to the child’s interest.
The other option of course is to sign a Waiver on your child’s behalf. Most smart operators/occupiers won’t allow a child to sign a Waiver. They insist the parent/guardian sign it.
Is this enforceable against the parent of child if the child is injured?
It would likely be unenforceable in British Columbia because of another provision in the Infants Act[5] that bars parents and guardians from entering into binding contracts on behalf of infants, except in strict accordance with the provisions of the Act.
As for elsewhere in Canada, it remains unknown if a parent/guardian can waive a minor’s rights to claim against anyone protected by a Waiver. My own opinion on this issue[6] is that a parent/guardian cannot waive a child’s legal rights to sue an operator/occupier.
I find comfort for my (non-binding) opinion in the rules of court and jurisprudence dealing with children in litigation. Among other things, generally speaking a minor cannot bring an action without a litigation guardian (an adult). Moreover, a settlement of an infant claim needs court approval. Therefore, I find it difficult to accept that a parent/guardian would be able to sign away a child’s rights to sue (usually at a busy counter with children running and screaming nearby) to the child’s detriment but would otherwise be precluded from settling a court action to the child’s benefit without court approval.[7]
That isn’t to say that a parent can’t sign away their own legal rights to claim for loss of care, guidance, or companionship. Whether that Waiver is enforceable against the parent would be subject to the same enforceability principles discussed above.
Do you Sign?
So, having now read about everything you were afraid to learn about Waivers, do you sign Charlie’s Pizza Palace’s Waiver? Or do you move to British Columbia?
[Insert here image of your child staring up at you with those big puppy-dog eyes]
[1]For the purpose of this article, the term “Waiver” is used to include liability release clauses.
[2]2008 CanLII 29598 (ON SC), http://canlii.ca/t/1xmgh.
[3]Under the common law, contracts which are detrimental to the interests of an infant (person under 18) are void. See for example Altobelli v. Wilson,1957 CarswellOnt 43, [1957] O.W.N. 207, 5 R.F.L. Rep. 326.
[4]See Infants Act,RSBC 1996, c 223; Wong v. Lok’s Martial Arts Centre Inc.,2009 BCSC 1385 (CanLII), http://canlii.ca/t/261kk.
[5]ss. 40-41.
[6]This is my opinion for the purpose of this article and is not to be construed as legal advice. By reading these next few paragraphs, you are hereby waiving your rights to sue me or my firm for anything whatsoever. It doesn’t matter if you are a child or a parent/guardian of a child. You can’t sue us. Thank you.
[7]Note that under section 40 of the BCInfants Act:
- A guardian may make a binding agreement for an infant,
(a) if the agreement involves a consideration not greater than $10 000, with the consent of the Public Guardian and Trustee, or
(b) in a case other than one referred to in paragraph (a), with the approval of the court by order made on the petition of a party to the agreement.
