In the Summer 2022 edition of The Litigator, the quarterly journal of the Ontario Trial Lawyers Association, Paul published “Waivers: How Enforceable Are They?” The article is a practitioner-facing review of the doctrine governing waivers and releases of liability in personal injury actions, with an extended analysis of Arksey v Sky Zone Toronto, 2021 ONSC 4594, the then-most-recent ONSC pronouncement on the enforcement of an electronic kiosk waiver in a recreational injury case. The article was written when Paul was a partner at Will Davidson LLP. Paul was plaintiff’s counsel in Arksey with Christian Genova; the case was a defence summary-judgment win for Sky Zone, and the article is an honest reckoning with what the decision means for plaintiff-side practitioners going forward.
The competing policy directives
The article opens with a candid framing. As a personal injury lawyer for injured plaintiffs, Paul writes, he despises waivers. The objection is visceral: an occupier of a premises, or an operator of an activity, can have patrons sign a one-sided, self-serving document that is rarely read and almost never properly understood, and then deploy that document to absolve itself of responsibility for serious injuries caused by its own incompetence. On the other hand, Paul acknowledges sympathy for the private businesses that operate adventurous recreational activities. Patrons attracted to those activities are by definition seeking risk. It would be unworkable for an operator to face civil liability every time a patron is hurt. The Ontario law on waivers, the article argues, continues to struggle with these two competing public policy directives: compensating injured persons for negligent conduct on the one hand, and protecting private businesses that arguably could not operate at all without some protection against lawsuits on the other.
Against that backdrop, the article reviews the law of waivers as it stood in 2022, walks through the Arksey decision in detail, and closes with practical observations on how to protect a personal injury client against a waiver-based summary judgment motion.
The law of waivers in 2022
Five doctrinal anchors are pulled out of the case law.
The first is the doctrine of contra proferentem. Any ambiguity in a waiver is interpreted against the party who drafted it. The Supreme Court of Canada articulated the modern framework for exclusion clauses in Tercon Contractors Ltd. v British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 SCR 69, and the contra proferentem principle is the first analytical move in any waiver case where the wording is even arguably unclear.
The second is the requirement of restrictive interpretation in cases of serious personal injury. In Mile v Club Med Inc., 1988 CarswellOnt 2057, Justice Arbour (as she then was) held that a provision purporting to exclude liability in cases of negligence causing serious personal injury must be applied particularly restrictively. Serious injury, in other words, raises the threshold the waiver must clear.
The third is that the word “negligence” alone is not enough. Ochoa v Canadian Mountain Holidays Inc., 1996 CarswellBC 2034 stands for the proposition that a waiver seeking to exclude liability for negligent conduct must contain something more than the bare word “negligence.” That something more must include at least a context describing the kind of conduct amounting to negligence which is intended to be covered. A waiver that simply says “I release the operator from negligence” without explaining what conduct it has in mind risks failing this requirement.
The fourth concerns the circumstances under which a waiver was signed. Clarke v Alaska Canopy Adventures LLC, 2014 ONSC 6816 sets out a useful framework. Where the contents of the document are contrary to what an ordinary person would expect (for example, where the terms are unusually onerous), or where the circumstances are such that it should be clear the signer did not know the terms (for example, where the signer was not afforded enough time or proper conditions to read them), the party seeking to rely on the document will have reason to know that the signer did not intend to agree to the terms. Clarke dismissed the defendant’s summary judgment motion on the basis that the evidentiary record on the circumstances of signing was incomplete. Zaky v 2285771 Ontario Inc. (carrying on business as Sky Zone Indoor Trampoline Park), 2020 ONSC 4380, applied the same framework on similar facts: the defendant’s summary judgment motion was dismissed because the plaintiff had raised a triable issue about whether reasonable steps had been taken to bring the waiver’s terms to her attention.
The fifth is the presumption that attaches to a signed document. Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 confirms a body of long-standing authority for the proposition that a person who actually signs a waiver is presumed to have intended to be bound by it. Knowledge of the contents of a signed contract is generally presumed. As the British Columbia Court of Appeal put it, drawing on McLachlin C.J.S.C.B.C.’s reasons in Karroll v Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R. (2d) 160 (B.C.S.C.), there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the signer of its onerous terms or to ensure that they read and understand them. The obligation arises only where the circumstances are such that a reasonable person should have known the signer was not consenting to the terms in question. Niedermeyer v Charlton, 2014 BCCA 165 articulates the same principle. It is generally no excuse, as a matter of contract law, to say “I signed it but I did not read it.”
These five anchors set the doctrinal stage for the focal case in the article.
Arksey v Sky Zone Toronto: an electronic kiosk waiver upheld
The article’s central analytical work is its treatment of Arksey v Sky Zone Toronto, 2021 ONSC 4594. The decision was released by Justice F.L. Myers on June 28, 2021 and was not appealed. The plaintiff was represented by Paul and Christian Genova at Will Davidson LLP. The defendant was represented by Nadia Marotta. As of the article’s publication in Summer 2022, Arksey stood as the most recent judicial pronouncement on the enforcement of an electronic kiosk waiver in a recreational injury action in Ontario.
The facts were not contentious. The plaintiff attended Sky Zone’s facility to play a recreational game of trampoline dodgeball. She acknowledged the inherent risks of the activity. On entering the facility she completed a waiver at an electronic kiosk. She did not read it. Once admitted to the play area, she was directed to her friends’ game without being given instructions on the rules or safety protocols. No employee was present in the game room to monitor the game. While airborne, she was struck on the back of her right knee by a ball thrown by someone on her own side of the court. She felt a snapping sensation and stumbled off the trampoline. An employee approached, allowed her to rest for about twenty minutes, and then suggested she return to the game. The plaintiff climbed back onto the trampoline, bounced, landed on her right leg, and felt her knee come apart. Expert medical evidence at the motion identified a right knee medial meniscus tear and an anterior cruciate ligament tear, both caused by the second round of jumping rather than the initial injury. The defendant’s witness on discovery conceded that the employee who responded to the first injury had not followed Sky Zone’s policies; at minimum, the employee should have reported the injury to a manager and given the plaintiff ice.
The plaintiff advanced two theories of negligence: a failure to instruct and supervise patrons on the rules of the game, and a failure to follow Sky Zone’s own injury policies after the first injury. The defendant moved for summary judgment on the basis that the electronic kiosk waiver covered both.
Justice Myers granted the motion. The waiver was held to be enforceable. The reasoning turned on three findings.
First, the waiver expressly contemplated the specific risk the plaintiff said had materialized. The waiver advised that Sky Zone employees “have difficult jobs to perform” and “may give incomplete warnings or instructions.” The plaintiff had expressly agreed and promised to accept and assume all of the risks existing in the activity, and her participation in the activity was purely voluntary. Justice Myers held that the express terms of the waiver warned of the very risks the plaintiff said had caused her injury.
Second, the release covered the kind of conduct alleged. Paragraph 3 of the waiver released Sky Zone from any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupiers’ Liability Act. Justice Myers acknowledged the Ochoa principle that the word “negligence” alone is often insufficient, but held that the waiver here did the additional work that Ochoa requires: it identified specific risks, it identified specific causes of action, and it identified the Occupiers’ Liability Act by name.
Third, on the circumstances of signing, Justice Myers found that the plaintiff was an adult, free to enter into contracts that would be enforced against her, and that the electronic kiosk presentation did not deceive her. The bolded sub-title above the waiver terms expressly warned that, by signing, the user would waive certain legal rights including the right to sue. The plaintiff had the opportunity to read the waiver. She did not. The motions judge’s conclusion was that the plaintiff exercised her autonomy to weigh the risks and benefits of the proposed transaction and entered into an agreement that affected her legal rights. That, the motions judge held, is exactly what consumers are entitled to expect and to do.
Practical observations for plaintiff-side practitioners
The article closes with three practical observations.
The first is to expect a summary judgment motion. In any personal injury action where a waiver is in issue, the defendant will move under Rule 20 to have the action dismissed on the waiver. The plaintiff’s evidence that they simply chose not to read the waiver will not, on its own, help.
The second is to take seriously the circumstances of signing. One way around a waiver, where the facts support it, is to establish that the terms were not reasonably brought to the plaintiff’s attention. Evidence of the electronic kiosk experience, the timing of the signing in relation to the activity, the language and prominence of the warning, and any conduct of the operator that may have undermined informed consent should be gathered carefully at the outset of the claim, before that evidence has degraded.
The third is to read the waiver itself with care. A waiver that releases a defendant from “negligent conduct” generally must be specific about what kind of negligent behaviour is being waived. In Arksey, the waiver did that work expressly. Not all waivers do. A careful review of a particular waiver may reveal deficiencies sufficient to defeat enforcement. The article’s closing observation, which is the right way to think about these cases, is that the outcome will turn on the facts. A seriously injured plaintiff faced with a vague and broadly-worded waiver will fare better than a more modestly injured plaintiff trying to avoid enforcement of a direct and detailed one.
Postscript: how the law has developed since 2022
In the years since the article was published, the post-Arksey trajectory has continued. The most recent significant Ontario decision in the area is Bernier v Ottawa (Ville), 2024 ONSC 6725, a cycling event waiver case in which the Court enforced the waiver against a volunteer ride ambassador injured during a GrandFondo event. The Court found that the plaintiff was an experienced cyclist who had had adequate time to review the document, who was familiar with its terms from a previous year, and who had chosen to sign without fully reading it. The waiver explicitly barred claims arising from negligence including those related to route conditions and the organizers’ actions. The case dismissed the plaintiff’s primary claim and, by virtue of that, the dependent Family Law Act claims advanced on behalf of the plaintiff’s children.
Bernier is consistent with the trajectory the article identifies. Where the operator has put in place a waiver that addresses the specific risks the activity entails, where the signing process gives the patron a fair opportunity to read and understand, and where the language is clear about the specific types of negligence being waived, Ontario courts will enforce the waiver and dismiss the action on summary judgment.
Where to read
The article is available on the OTLA member portal in the archived Summer 2022 edition of The Litigator. Paul’s published work in The Litigator and other professional journals is listed on his Media page.
Context
The article was published when Paul was a partner at Will Davidson LLP. Paul is now a partner at Davidson Cahill Morrison LLP. The article reflects Paul’s experience as plaintiff’s counsel in Arksey, and it is offered in the spirit of practical sharing among personal injury practitioners. The article does not address every nuance of the doctrine, and its observations are confined to civil personal injury practice in Ontario as the law stood in mid-2022.
