CHAPTER 8: Anticipatory or Pre-Emptive Releases

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8.1 Introduction

A release or waiver of liability may be given before the occurrence of activities or events that potentially could result in injuries or damages forming the basis for a claim. This is common in situations that involve inherently risky activities, such as racing, skiing and contact sports. As stated in Inglis v. Medway Pines Stables, 2020 NSSC 97 (CanLII) , at paragraph 1: “Companies which facilitate customers’ participation in inherently risky activities have long relied upon releases and waivers to protect themselves from legal claims.”

In these situations, not only are the parties unaware of actual claims that may be captured by the terms of the release or waiver, they do not even know whether the basis for any claim will arise. Indeed, it is to be assumed that the parties hope and wish that nothing will happen so as to cause injuries or damages giving rise to a claim.

The case law reveals that efforts to pre-empt liability for claims arising from an inherently risky activity or event may take shape as a release, typically using standard release language, or a waiver, or both. As well, a release or waiver of liability given in such circumstances is akin to an exclusion of liability clause in a contract: presumably, in most or all cases where parties agree to an exclusion of liability clause as a term of a contract, they do so in advance of knowing whether or what circumstances will actually occur so as to give rise to liability issues.

Thus, in Canadian jurisprudence, efforts to pre-empt liability for claims arising from risky activities or events are referred to variously as releases, waivers and exclusion clauses. Indeed, in Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII), at paragraph 34, it was noted that, in the case law, the terms “release” and “waiver” are used interchangeably. For the purposes of rlaw.online, a release of liability given before activities or events that potentially could result in injuries or damages is referred to as a pre-emptive release.

Not only does the terminology of releases, waivers and exclusion clauses tend to be used with some interchangeability, but the law on pre-emptive releases tends to cross over with jurisprudence on exclusion clauses. It also intersects with other areas of law, such as occupiers’ liability legislation and case law on the voluntary assumption of risk or volenti non fit injuria.

The intersection of these areas of law reflects a thorny problem that lies at the heart of jurisprudence on pre-emptive releases. On one hand, participants in risky sporting and recreational activities generally want to take part in these activities – often to the point of actively seeking them out – and it is surely not unreasonable for those who facilitate such participation to look to protect themselves by means of a pre-emptive release. On the other hand, participants in these activities are expected to give up claims in respect of events that have not yet occurred and, what is more, a participant may suffer catastrophic injuries upon the occurrence of some unforeseen event or mishap during an activity. Not surprisingly, this area has been the subject of considerable study: see, for example, Law Reform Commission of British Columbia Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities (October, 1994) 1995 CanLIIDocs 12 and Manitoba Law Reform Commission, Waivers of Liability for Sporting and Recreational Injuries (Report #120, January 2009), 2009 CanLIIDocs 275.

In Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII) , the plaintiff agreed with the societal interest in allowing people to be free to engage in risky activities if they choose to do so. But the plaintiff argued that proprietors are also expected to be liable for their misdeeds, as we all are. The court said that, from a consumer protection orientation, consumers should expect honest, open dealings. They should be protected from deceptive practices, from onerous liabilities being buried in fine print, and from abuse of power to extract unconscionable terms. But consumers are also free to agree to take risks and to agree upon unbalanced waiver clauses to do so as long as they are able to make deliberate, knowing, voluntary choices: see Arksey, at paragraphs 51 to 56.

Writers of legal commentary have had much to say on the subject of releases or waivers given in advance of participation in sporting or recreational activities. See, for example, Melissa Liauw and Jean-Claude Velasquez, Recreational Facility Operators Beware: “Ticket” Cases Revisited Apps v. Grouse Mountain Resorts Ltd. 2020 BCCA 78 (2022) 53 Adv. Q. 75.

While there are many decisions of Canadian courts on pre-emptive releases in cases involving sporting or recreational activities, these are by no means the only circumstances that lead to litigation about pre-emptive releases. The cases discussed below include, for example, one in which a release was given before an appearance on a television show: see MHR Board Game Design Inc. v. Canadian Broadcasting Corporation, 2013 ONSC 4457 (CanLII), appeal dismissed, 2013 ONCA 728 (Can LII), leave to appeal refused, 2014 CanLII 25874 (SCC). In another of the cases below, the court considered a release included in a consent to medical treatment and said that the cases involving activities such as scuba diving, rock climbing and motorcycle driving lessons offer no guidance with regard to consents for medical services: see Rush v. De Ruiter, 2018 ONSC 1210 (CanLII) .

8.2 Related Areas of Law

8.2.1 Volenti Non Fit Injuria/Voluntary Assumption of Risk

The Latin phrase volenti non fit injuria means “to one who is willing, no harm is done”: Kempf v. Nguyen, 2015 ONCA 114 (CanLII) , at paragraph 97, per Laskin J.A. (dissenting). As stated in a decision of the Supreme Court of Canada, the defence of voluntary assumption of risk is based on the moral supposition that no wrong is done to one who consents; by agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it. (See Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 SCR 1186 , at paragraph 32.)

When successful, the volenti defence has the “drastic” effect of resulting in a complete denial of any compensation to the plaintiff (Dube v. Labar, 1986 CanLII 67 (SCC), [1986] 1 SCR 649 , at paragraph 12) and, since it is a complete bar to recovery, the defence is seen as an anomaly in “an age of apportionment” (Crocker, at paragraph 32). The courts have been imposing ever stricter requirements for the defence, such that it is “but rarely successful”: Crocker, at paragraph 32.

While it may now be seen as something of an anomaly, the volenti defence continues to be raised in cases involving pre-emptive releases, as can be seen from the decisions summarized below.

Braun v. Whistler Mountain Resort Limited Partnership, 2016 BCSC 2259 (CanLII)

Before participating in a skiing lesson, the plaintiff signed a release that the court said was drafted in such a way as to include nearly every conceivable form of neglect or want of duty that might be attributed to the defendant. The court found that, in the circumstances in which the plaintiff was injured, there was a clear assumption of risk. Recognizing the seriousness and the strictness of the test that the court must apply in order to dismiss a claim without a trial, the court concluded that there was no possible way the case had a prospect of success and it dismissed the case.

Arif v. Li, 2016 ONSC 4579 (CanLII)

The plaintiff brough an action for damages arising from an injury suffered while rock climbing during an introductory rock climbing and rappelling course. The defendants moved to dismiss the action on the grounds that the plaintiff release the defendants from liability by signing two releases and voluntarily assumed the risks associated with rock climbing by participating in this course. The defendants argued that the defence of volenti non fit injuria barred the plaintiff’s claim. The court said that, to succeed on this defence, the defendants needed to show that the plaintiff consented to, or assumed, the physical and legal risk involved in the activity. In other words, it was necessary for the defendants to show that there was “… an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and the plaintiff did not expect him to” (quoting from Levita v. Crew, 2015 ONSC 5316, which in turn quoted from Dube v. Labar, above). The court said it had no doubt that the plaintiff was acutely aware of the risks of rock climbing before deciding to embark on a second climb. Also, there was no suggestion that the plaintiff’s mind was “clouded by alcohol or anything else” when he participated in this activity or when he reviewed and knowingly signed the two releases. The court found that the defence of volenti applied as the plaintiff, by his own actions, voluntarily assumed the risks of rock climbing.

Stevens v Oyster Bed, 2023 PECA 7 (CanLII)

An action was commenced under the PEI Fatal Accidents Act on behalf of the dependants of Robert Stevens, who died while participating as a driver in a stock car race. The motions judge found that waiver and release documents signed by the deceased did not bar the claim of the dependants. On appeal, the appellants relied on the waiver documents and warning signs on the property, not from a contractual perspective, but as evidence of the voluntary assumption of risk by the deceased. In other words, the waiver documents were relied upon only in relation to the volenti issue. The appellate court said it is clear that using or relying on volenti as a complete defence to negligence has been on the decline for some time (citing Crocker). The FAA is unique PEI legislation which creates an independent cause of action and is unlike any other Canadian legislative choice. All other provinces have chosen to create derivative claims to establish the dependant’s right of action. In jurisdictions where derivative claims are made, such defences as volenti are available. This is not the case in PEI where a claim of a dependant can proceed even in circumstances where “the deceased was not entitled to maintain an action.” The legislative language makes it clear in this jurisdiction that the traditional analysis of the duties and responsibilities between a plaintiff and a defendant do not apply. The volenti defence must focus on the traditional relationship between a traditional plaintiff and a traditional defendant. Such a focus is inappropriate when examining an independent legislative statutory claim for the dependants of a deceased person as set out in the FAA.

8.2.2 Occupiers’ Liability Legislation

Because pre-emptive releases are seen to offer protection from liability for occupiers of property where participants engage in inherently risky activities, circumstances giving rise to issues about pre-emptive releases often bring into play occupiers’ liability legislation. Section 2 of the Ontario Occupiers’ Liability Act, for example, provides that, subject to certain exceptions, this statute applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

Subsection 3(1) of the Ontario legislation sets out a statutory duty of care. It says that an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises. Subsection 3(3) of this statute provides that the duty of care set out in subsection 3(1) applies except insofar as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. Thus, the Occupiers’ Liability Act specifically contemplates that an occupier of premises may take steps to limit or exclude the statutory duty – and a pre-emptive release may be the means by which the occupier seeks to achieve this result.

The implications of voluntary assumption of risk, in the context of the statutory duty set out in subsection 3(1), are addressed in section 4 of the Ontario legislation. More specifically, subsection 4(1) provides that the duty of care set out in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

The background to the Ontario Occupiers’ Liability Act was discussed by the Ontario Court of Appeal in Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (CanLII). The court pointed out (Schnarr, paragraph 24) that this legislation was enacted following the Ontario Law Reform Commission’s 1972 Report on Occupiers’ Liability, which recommended that the common law duty of care owed by occupiers be replaced with one generalized statutory duty. The Law Reform Commission’s recommendation was given effect with the enactment of the Occupiers’ Liability Act. The Court of Appeal said (Schnarr, paragraph 25) it is evident from the provisions of the Occupiers’ Liability Act that the legislation was intended to establish a single primary duty of care that an occupier would owe to persons entering upon their premises. The Court of Appeal cited Lewis N. Klar and Cameron Jeffries, Tort Law, 6th Edition (Toronto: Thomson Reuters, 2017), at page 723, for the proposition that the Occupiers’ Liability Act was intended to be exclusive and comprehensive, insofar as the liability of occupiers is concerned.

Thus, as stated in Nolet v. Fischer, 2020 ONCA 155 (CanLII), at paragraph 14, the Court of Appeal has made it clear that the wording of the Occupiers’ Liability Act establishes that the Act is intended to be exclusive and comprehensive, effectively constituting a complete code with respect to the liability of occupiers (referring to MacKay v. Starbucks Corp., 2017 ONCA 350, at paragraphs 45-46 and Schnarr, at paragraphs 25-26).

For the purposes of the two appeals before it in Schnarr, the Court of Appeal said that the two critical sections of the OLA were sections 3 and 4. And, the court said, when considering the purpose of the OLA, it was of some importance to recognize that part of the rationale for including section 4 in the statute was to encourage private landowners to make their property available voluntarily for recreational activities by limiting their liability (referring to a Discussion Paper on Occupiers’ Liability and Trespass to Property issued by the Ministry of the Attorney General in May 1979). This provision was not part of the Law Reform Commission’s draft legislation and was included to protect the interests of the agricultural community and to promote the availability of land for recreational activities: Schnarr, at paragraph 28, where the Court of Appeal quoted from Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 10th Edition (Toronto: LexisNexis Canada, 2015), at §18.66.

Subsection 5(1) of the Ontario Occupiers’ Liability Act provides that the duty of an occupier under the Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party. Subsection 5(3) indicates that, where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier must take “reasonable steps” to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed. At common law, a requirement to take reasonable steps to give notice of an exclusion clause or waiver has also been recognized and there are a considerable number of cases in which courts have considered whether this requirement arises in particular circumstances and, in circumstances where it does arise, whether it has been fulfilled: see, for example, The Law of Releases in Canada, pages 154-159.

It could be said, then, that jurisdictions such as Ontario have two coexistent streams of law (in the Apps decision, below, the British Columbia Court of Appeal referred to “two legal contexts”) which, at least to some extent, weave together in the case law on pre-emptive releases. When the Occupiers’ Liability Act applies, the liability of an occupier for breach of duty under the statute may be the subject of a waiver or release, but there is a statutory requirement that the occupier take reasonable steps to bring a restriction on or exclusion of liability to the attention of the person to whom the duty is owed. Also, voluntary assumption of risk is addressed in section 4 of the Occupiers’ Liability Act. Liability arising on the basis of common law principles, including liability for breach of a duty of care under the law of negligence, may the subject of a waiver or release, but the common law recognizes a requirement that the party to whom the duty is owed receive adequate notice of the terms of an exclusion of liability. Also, the common law doctrine of volenti non fit injuria continues to emerge in cases involving pre-emptive releases: see section 8.2.1, above.

Decisions on reasonable steps to give notice of a pre-emptive release, whether concerned with statutory or common law requirements, or both, are gathered together below in section 8.4.3.

Newsham v. Canwest Trade Shows Inc., 2012 BCSC 289 (CanLII)

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

On consent of the parties, the jury decided certain issues in this case relating to waivers contained in a Membership Agreement while the ultimate validity of the waiver was to be decided by the trial judge. The plaintiff argued that it was necessary for the defendant to refer explicitly to the duty under the Occupiers’ Liability Act for the waiver to be valid regarding claims under that Act. The court cited a decision of the British Columbia Provincial Court, Coueslan v. Canadian Mini-Warehouse Properties Ltd., 2000 BCPC 137, as well as decisions in Lafontaine (Guardian Ad Litem) v. Prince George Auto Racing Assoc., 1994 CanLII 1532 (BC SC) and Blomberg v. Blackcomb Skiing Enterprises Ltd., 1992 CanLII 191 (BC SC) . While it was not bound to follow either of these lines of authority, the court said it found the latter authorities to be more persuasive. The court said that, like the British Columbia Occupiers Liabliity Act, section 3 of the Ontario statute, which creates a duty to “take such care as […] is reasonable to see that person entering the premises […] are reasonably safe”, essentially founds a claim in negligence. By expressly excluding liability for negligence, the defendant expressly excluded the duty of care owed under the Ontario statute. Further, broad language excluding liability for “any and all claims, demands, rights of action, or causes of action”, could reasonably be seen to include claims for breaches of the statutory duty. Therefore, it was not necessary to mention specifically the Occupiers’ Liability Act in the waiver, provided that the waiver was specific and broad enough to cover claims made under the statute, as in this case. The plaintiff also argued that the waiver offended the statute by providing a release for negligence for any other person or guest using the facilities. The court said that subsection 5(1) of the statute did nothing to prohibit an occupier from using a waiver to provide a release for negligence to protect other individuals using the facilities who were not party to the agreement. The plaintiff, the party to whom the duty was owed, was a party to the agreement and therefore subsection 5(1) had not been contravened.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, application for leave to appeal dismissed, 2019 CanLII 7956 (SCC)

This decision resulted from two appeals heard together by the Court of Appeal which raised common issues. In both cases, the plaintiffs were patrons of ski resorts who purchased ski tickets, executed waivers of liability as a condition of their tickets and were injured on the premises of the ski resorts. The Court of Appeal said that the appeals presented a case of first impression as to whether the effect of sections 7 and 9 of the Ontario Consumer Protection Act was to vitiate or void an otherwise valid waiver of liability under section 3 of the Occupiers’ Liability Act, where the party seeking to rely on the waiver was both a “supplier” under the CPA and an “occupier” under the OLA. There was nothing in the background to the passage of the CPA, or in the provisions of the CPA itself, to suggest it was intended to regulate duties of care of the type stipulated by the OLA, or that it was intended to regulate liability arising from the use of premises that are subject to the OLA. The OLA was intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises. The very purpose of this legislative scheme would be undermined if the CPA were allowed to reintroduce another novel contractual duty that purports to subject occupiers to an obligation to warrant that their premises are of a “reasonably acceptable quality”. The Court of Appeal found it difficult to accept that the Legislature went through the exercise of amending the OLA for the purpose of clarifying the liability of occupiers, and to encourage them to open their property for use by members of the public, all to have it rendered of no force or effect because of the existence of the CPA. In the context of the two appeals, sections 7 and 9 of the OLA fundamentally undermined the purpose of section 3 of the OLA. The statutes were irreconcilable and in conflict and the more specific provision in the OLA prevailed over the general provisions in the CPA. Sections 7 and 9 of the CPA do not operate to void otherwise valid waivers executed under section 3 of the OLA.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

The appellant suffered a catastrophic injury while snowboarding at the respondent’s “terrain park”. He sued for damages, alleging, among other things, breach of the British Columbia Occupiers Liability Act. In defence of the claim, the respondent relied on an exclusion of liability notice that was printed on a sign above the ticket booth where the appellant purchased his ticket, and also on the back of the ticket he received after payment, together with warnings posted on signs at the terrain park. The Court of Appeal said that issues in this case fell to be determined in “two legal contexts”: the law of contract and the Occupiers Liability Act, which imposed a statutory duty to take care on an occupier of premises. This duty was independent of any contractual obligation.

Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII)

8.3 Enforcement of Pre-Emptive Releases

8.3.1 General Validity and Enforceability of Pre-Emptive Releases

Lest there be any doubt about it, there is no general proposition that pre-emptive releases are invalid or unenforceable, although there is some suggestion in the case law that courts bring a particularly rigorous standard of scrutiny to pre-emptive releases.

Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON SC)

Waivers and releases of liability may be enforceable, including in situations where the plaintiff is participating in an excursion or instructional course. The case law makes no distinction between such cases and those involving races or competitions.

Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001 (CanLII)

It is clear from a number of cases that the content of a clause excluding liability is critical to its validity in personal injury actions even if negligence has been proven; sometimes the exclusion clause is determinative. The presentation of the text on the release is an important, potentially decisive issue, but courts also look at the personal circumstances of the plaintiff, and the context of the accident.

Cooper v. Blackwell, 2017 BCSC 1991 (CanLII)

Releases and exclusion clauses are subject to rigorous scrutiny before being enforced by the court. Express notice and clarity of language are essential. Waiver requires an unequivocal and conscious intention to abandon rights.

Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII)

On a motion for summary judgment based entirely on the terms of a waiver and release of liability signed by the plaintiff, the court said it did not understand the law to be that waivers of liability are unenforceable or illegal. They are to be construed contra proferentem, narrowly, carefully, and applied for their objectively determined meaning.

Manson v Mitchell, 2023 BCSC 723 (CanLII)

This action arose out of injuries suffered by the plaintiff as a result of a mountaineering incident in July of 2021. The plaintiff argued that a waiver and release signed by him did not apply to the mountaineering trip during which the incident occurred because it was expressly date-specific and therefore applied only to an earlier climb on June 18, 2021. The defendants argued that, interpreting the waiver and release in light of the surrounding circumstances, the waiver was not limited to the specific date referred to in it; rather that date represented the first day of a series of guided outings the plaintiff and the defendant Mitchell were going to undertake together during the summer of 2021. The court said that, as a matter of law, a waiver requires an unequivocal and conscious intention to abandon rights. Express notice and clarity of language are also essential. There was no evidence of express notice to the plaintiff that the waiver would apply to anything other than the June 18th climb. The evidence was limited to Mitchell’s subjective intention, which he never communicated to the plaintiff.

8.3.2 Analytical Approach

Many Canadian decisions that address the applicability and enforcement of pre-emptive releases refer to an analysis comprised of three parts or three enquiries. The three parts of the analysis are not the same in all cases, however. One three-part analysis is described in cases such as Isildar, below. Another three-part analysis is derived from a decision concerning a contractual exclusion clause, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII). In addition to these two streams of case law, there are other decisions in which Ontario courts have followed a line of analysis that enumerates five “circumstances” for consideration.

Case law on these analytical approaches is set out under the three headings that follow, starting with the Tercon approach, which, of the three analytical frameworks, seems to have received the most attention in cases dealing with pre-emptive releases.

8.3.2.1 Tercon Analysis

In Tercon, Binnie J. said (at paragraphs 121-123) that whether an exclusion clause applies in a given case depends on three factors, as follows: (1) as a matter of ordinary contractual interpretation, does the exclusion clause apply to the circumstances established in the evidence?; (2) if so, was the exclusion clause unconscionable at the time when the contract was made?; and (3) if the clause is valid and applicable, should the court decline to enforce it because of an overriding public policy concern that outweighs the public interest in the enforcement of contracts? (While Binnie J. dissented in the result of the Tercon case, the majority of the court agreed with “the analytical approach that should be followed when tackling an issue relating to the applicability of an exclusion clause set out by [him]”: see Tercon, at paragraph 62, per Cromwell J.). Binnie J.’s approach has been applied or referred to in many cases involving pre-emptive releases.

Deanna Loychuk et al v. Cougar Mountain Adventures Ltd., 2012 BCCA 122 (CanLII), application for leave to appeal dismissed 2012 CanLII 56135 (SCC)

In respect of a pre-emptive release signed by the appellants, the parties agreed that the first step in the Tercon analysis was satisfied, but parted company with respect to the next two steps, unconscionability and public policy. The Court of Appeal held that the release was neither unconscionable nor unenforceable on public policy grounds.

MHR Board Game Design Inc. v. Canadian Broadcasting Corporation, 2013 ONSC 4457 (CanLII), appeal dismissed, 2013 ONCA 728 (Can LII), leave to appeal refused, 2014 CanLII 25874 (SCC)

The decision of the motion judge on this motion for summary judgment did not explicitly refer to Tercon, but the plaintiffs’ arguments echoed each of the three lines of enquiry set out in Tercon. The plaintiffs argued that the specific conduct in this case was not within the “exoneration clauses” of a consent and release or, alternatively, that it would be unconscionable or contrary to public policy to enforce the terms of the consent and release. The motion judge rejected these arguments and granted the motion for summary judgment.

Niedermeyer v. Charlton, 2014 BCCA 165 (CanLII) , application for leave to appeal dismissed, William Charlton, et al. v. Karen Niedermeyer, 2014 CanLII 68709 (SCC)

The parties agreed that the trial judge had identified the appropriate analysis to be employed to determine the enforceability of a pre-emptive release, as set out by Binnie J. in Tercon, and this three-part analysis was applied by the dissenting judge in the Court of Appeal. The majority of the Court of Appeal agreed with the analysis and conclusions of the dissenting judge except on the question whether the release was contrary to public policy.

Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 (CanLII)

The three-stage analysis from Tercon was applied by the motion judge considering a pre-emptive release on a motion for summary judgment, but ultimately the judge decided that there was a genuine issue for trial because the full and complete context was needed in order to interpret the agreement fairly and justly, so that the agreement’s validity, applicability and enforceability could be properly determined.

Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII)

In essence, when assessing the enforceability of a contractual clause excluding liability, the court must determine the three matters set out in Tercon. In Karroll , McLachlin C.J.S.C. (as she then was) framed the issue as twofold: whether the terms of the release are broad enough to encompass the claims brought by the plaintiff and whether the plaintiff is bound by the terms of the release.

Kalash v Carrier One Express, 2015 ONSC 5131 (CanLII)

The plaintiff Arie Kalash suffered injuries in an accident while working as an independent owner-operator of a tractor-trailer under contract with two of the defendants. The contract documents signed by the plaintiff included provisions whereby, among other things, the plaintiff released the two defendants from responsibility for injuries sustained by the plaintiff. The court said that the starting point for a determination of the enforceability of these terms was the decision in Tercon and the court proceeded on the basis of the three-part enquiry from Tercon.

Cooper v. Blackwell, 2017 BCSC 1991 (CanLII)

The plaintiff agreed in this case that the release of liability agreement relied on by the defendants was not unconscionable and that there were no public policy concerns to militate against its enforcement. The only issue was the first question in the three-stage analysis, namely, whether the agreement applied in the particular circumstances of the case. The court held that the agreement did not apply because the plaintiff’s claim was made in respect of a hunting excursion that was separate and distinct from the excursion to which the agreement was intended to apply.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII)

To determine whether a plaintiff is bound by an exclusion clause, the Tercon framework identifies three questions that a court must assess; this framework was endorsed by the B.C. Court of Appeal in Loychuk, above. The only question from Tercon that was applicable in this case was the first, that is, whether the exclusion clause applied as a matter of contractual interpretation. The court found that release and waiver documents signed by the plaintiff were clear, noticeable, easy to read and made no attempt to disguise their purpose.

Ottawa Humane Society v. Ontario Society for the Prevention of Cruelty to Animals, 2017 ONSC 5409 (CanLII)

The court concluded that a “non-suit” clause in an agreement functioned as a release which, the court said, invited the analysis set out in Tercon where the Supreme Court of Canada had to decide on the effect of an exclusion clause.

Anderson v. Confederation College, 2017 ONSC 5791 (CanLII)

The defendants brought a motion for summary judgment dismissing the plaintiff’s claim on the basis of an “Informed Consent Form for Physical Activities” signed by the plaintiff which included a release from claims for injuries or losses. The parties agreed that the enquiries enumerated by Binnie J. in Tercon are to be addressed when the plaintiff seeks to escape the effect of an exclusion clause. The court dismissed the motion on the basis of the first branch of the Tercon analysis and thus found it unnecessary to move on to the other Tercon enquiries.

Peters v. Soares, 2019 BCSC 189 (CanLII)

The plaintiff claimed that he was injured in a jiu-jitsu competition held by the defendants and one of the defendants argued that two waivers applied so as to bar the plaintiff’s claim. The court applied the Tercon analytical approach, as summarized in Chamberlin, above.

Nelson v British Columbia (Environment), 2020 BCSC 479 (CanLII)

This case concerned a waiver pursuant to which the plaintiff released the Province of British Columbia from all claims for injury or damage caused by flooding, erosion, or a similar cause. The court said that the analytical framework in Tercon must be followed with respect to the applicability and enforceability of exclusion clauses and that the Tercon framework applies to all clauses that purport to exclude liability. However, given the facts of this case, the court said that Tercon might not provide a complete answer.

Inglis v. Medway Pines Stables, 2020 NSSC 97 (CanLII)

In its consideration of a pre-emptive release on a motion for summary judgment, the court cited the three Tercon questions.

Grouette-McDougall v. Loran Scholars Foundation, 2021 ONSC 7801 (CanLII)

The plaintiff was informed by the defendant that she had been selected as a finalist for a scholarship. She was invited to attend “National Selections” in Toronto. She signed a broadly-worded “Release of Liability, Waiver of Claims and Assumption of Risk” in respect of her participation in the National Selections. She argued that the release was intended to cover only any potential claim arising from the events during the period of National Selections and did not apply to a decision not to extend her a scholarship based on her responses to questions put to her after that period. The parties agreed that the legal test for enforcement of a waiver is the three-step test set out in Tercon. The court found that the release applied to the circumstances of this case, that the release was not unconscionable at the time when the contract was made and that there was no overriding public policy concern about enforcement of the release.

Stevens v. Oyster Bed, 2022 PESC 25 (CanLII) , appeal on other grounds dismissed, 2023 PECA 7 (CanLII)

In this case involving a release and waiver signed prior to participation in a stock car racing event, the court said that a worthwhile starting point on the law of waivers was the decision of the Supreme Court in Tercon and the court summarized the three-pronged test from Tercon. The court noted that, although Tercon was decided in a “commercial and contractual context” (dealing with an exclusion clause in a tender contract), the Tercon framework and the three-pronged test have been applied extensively to waivers. The court said it was also worthwhile to set out the three stage Isildar analysis (see section 8.3.2.2 below) in determining whether a signed release was valid, even though Isildar was decided two years earlier than Tercon.

Manson v Mitchell, 2023 BCSC 723 (CanLII)

8.3.2.2 Isildar Analysis

As they considered the applicability and enforcement of pre-emptive releases in the cases below, the courts followed or referred to a three-stage line of analysis, but the three areas of enquiry described in these cases are not all the same as those set out by Binnie J. in Tercon. In one of the cases below, Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10 (CanLII), at paragraph 25, the court said that these three “elements” from Isildar, albeit expressed in somewhat different language, were also used in the decision in Clarke v. Action Driving School Ltd., 1996 CanLII 2649 (BCSC) .

Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON SC)

A three-stage analysis is required to determine whether a (pre-emptive) release of liability is valid. The analysis requires consideration of the following: (1) Is the release valid in the sense that the plaintiff knew what he or she was signing? If the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to a liability release contained in it, did the party presenting the document take reasonable steps to bring it to the attention of the signator? (2) What is the scope of the release and is it broadly worded enough to cover the conduct of the defendant? (3) Should the waiver not be enforced because it is unconscionable?

Copeland v. Hamilton (City), 2009 CanLII 42450 (ON SC)

The plaintiff signed a registration form that contained a release before engaging in roller blading as a participant in a fundraising event. The court found that the release was valid, in the sense that the plaintiff knew what she was signing, the scope of the release was broad enough to cover the conduct of the defendants and the waiver should be enforced because it was not unconscionable.

Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10 (CanLII)

In this case, the court followed the three-stage analysis set out in the Isildar case, above, as follows: (1) is the release valid in the sense that the plaintiff knew what he was signing, or, alternatively, if a reasonable person would have known that someone signing the document would not otherwise intend to agree to a liability release, were reasonable steps taken to bring the release to the attention of the signer; (2) what is the scope of the release and is it broad enough to cover the conduct of the defendant; and (3) should the release not be enforced because it is unconscionable.

Stevens v. Oyster Bed, 2022 PESC 25 (CanLII) , appeal on other grounds dismissed, 2023 PECA 7 (CanLII)

8.3.2.3 Analysis with Five Lines of Enquiry

The Ontario decisions below take the approach that a release is binding unless, in the circumstances, it is not valid or enforceable on one of five grounds.

Arif v. Li, 2016 ONSC 4579 (CanLII)

In considering whether the plaintiff was bound by a release he signed before participation in a rock climbing and rappelling course, the court said a review of the case law shows a person is bound by a signed release unless one of the following circumstances exists: (1) non est factum (the signer, through no carelessness on his or her part, is mistaken as to the document’s nature and character); (2) fraud or misrepresentation; (3) objective lack of consensus ad idem (where it is unreasonable for a person relying on a signed contract to believe that the signer assented to its terms); (4) unconscionability; or (5) an overriding public policy that outweighs the very strong public interest in the enforcement of contracts.

Rose v. Bilmer et al, 2019 ONSC 3184 (CanLII)

This case did not actually involve a pre-emptive release. After a judgment was issued against the respondent, the “rightful” assignee of the judgment gave a release to the respondent. In considering whether the judgment remained enforceable, the court referred to the statements in Arif v. Li, above, to the effect that a signed release is binding unless one of the five enumerated circumstances exists. The court said there was no evidence to show any or all of the five circumstances set out in Arif.

McCallum v. Jackson, 2019 ONSC 7077 (CanLII)

The court cited the line of analysis from Arif v. Li, above, noting that the plaintiff had not pleaded non est factum, fraud or misrepresentation. On the issue of whether there was consensus ad idem, the court followed Arif v. Li by considering, first, whether a reasonable person would have known that the plaintiff did not intend to agree to the indemnity provisions of a release that he signed and, second, whether the defendants took reasonable steps to bring the content of the release to the plaintiff’s attention

8.3.3 Consideration

A release is a contract and the requirements of a valid and enforceable contract, including consideration for a contract not given under seal, apply to releases. (See Chapter 2: Release Formation and Wording, section 2.2.2, Consideration). Here, we are concerned with consideration in the specific context of pre-emptive releases.

8.3.3.1 When Fresh Consideration is Required

From time to time, arguments are made in cases involving pre-emptive releases that an agreement with respect to participation in a particular activity or event was concluded before any requirement or request for a release was made known to the participant. Such arguments often culminate in a dispute about whether fresh consideration is needed for a release to become effective after the parties have already concluded an agreement. On the subject of fresh consideration, see also Chapter 2: Release Formation and Wording, section 2.2.2.5, Past Consideration.

A related issue is whether notice given after contract formation is relevant to the obligation to give reasonable notice of a waiver of liability or exclusion of a duty of care. In respect of this issue, see section 8.4.3, Communication of the Terms of a Release, section 8.4.3.1, Post-Contract Notice, and the decision of the British Columbia Court of Appeal in Apps v. Grouse Mountain Resorts summarized in those sections.

Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON SC)

The consideration for signing of a Release of Liability and Assumption of Risk Agreement in respect of a scuba diving certification program was permission to participate in dives led by instructors. If the course fee was paid and the diver refused to sign the release, the diver would receive a manual and would participate in the program, but could not participate in the actual open water dives.

Borre v. St. Clair College, 2011 ONSC 1971 (CanLII)

The plaintiff argued, among other things, that a waiver relied upon by the defendant was not part of the original contract between the parties and could not be added afterwards without fresh consideration. On a motion for summary judgment, the court said that there was a genuine issue for trial regarding the waiver as it applied to the plaintiff. Among the questions raised, but not determined, by the motion judge was whether additional consideration was given for the waiver at the time when it was signed.

Deanna Loychuk et al v. Cougar Mountain Adventures Ltd., 2012 BCCA 122 (CanLII), application for leave to appeal dismissed 2012 CanLII 56135 (SCC)

The appellants argued that they had entered into contracts to engage in zip-lining before going to the location of the activity and thus releases signed at the defendant’s office upon arrival were given without any consideration. They relied on the dissenting judgment of Chief Justice Nemetz in Delaney v. Cascade River Holidays . The reasoning of the majority in Delaney was binding on the Court of Appeal and dispositive of this case. The consideration the appellants received for signing the release was their being allowed to participate in the zip-lining activity.

8.3.4 Failure to Read Pre-Emptive Release

When a party to a written contract has signed the contract without reading all of its terms, one might take the view that this party, having elected to sign the contract without reading it in full, assumed the risk of being bound by the contractual terms. And, indeed, an often-cited English decision, L’Estrange v. F. Graucob Ltd. [1934] 2 K.B. 394 , holds that, subject to two exceptions, it is wholly immaterial whether a party who signed a written contract has actually read the document. The two exceptions recognized in L’Estrange are non est factum and fraud or misrepresentation.

Yet, in cases where parties have signed contracts without reading the terms of the contracts, one can readily see important points of distinction arising from the circumstances of individual cases. On one hand, a party with access to legal and other advice may choose to sign a contract, without reading it, after being afforded a full opportunity for negotiation and consideration of the terms of the contract. On the other hand, a party presented with a standard-form contract may be expected to sign the contract without legal or other advice and without a meaningful opportunity to read or reflect on the terms of the contract, even though important terms, written in language that is difficult to understand, are “buried” in the “fine print” of the contract. As can be seen from authorities such as the majority decision in Tilden Rent-a-Car Co. v. Clendinning, CanLII 1446 (ON CA) , Canadian courts have accepted that the force of the rule in L’Estrange varies depending on the circumstances of each individual case.

Tilden was considered in a leading case involving a pre-emptive release, Karroll v. Silver Star Mountain Resorts, 1988 CanLII 3094 (BC SC) . In Karroll, the court said there is a third exception to the L’Estrange rule that is in addition to, and entirely in the spirit of, the two exceptions recognized in L’Estrange. This third exception is that, where a party to a contract has reason to believe that the signing party is mistaken as to a term, then the signing party cannot reasonably have been taken to have consented to that term, with the result that the signature which purportedly binds the signer it is not the signer’s consensual act: see Karroll, at paragraph 18.

Also in Karroll, the court referred (at paragraph 16) to the limited applicability of the rule that a party proffering for signature an exclusion of liability must take reasonable steps to bring the exclusion to the other party’s attention. (For more on this rule, see below, section 8.4.3, Communication of the Terms of a Release.) The court said in Karroll (at paragraph 19) that, in the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or “onerous terms” to the attention of the signing party, nor to advise the signing party to read the document. According to the Karroll decision, the proposition that reasonable steps must be taken to bring an exclusion of liability to the other party’s attention is not a general principle of contract law, but a limited principle, applicable only in special circumstances.

Note, though, that, under legislation such as the Ontario Occupiers’ Liability Act, where an occupier is free to restrict or exclude the occupier’s duty of care or liability for breach of the duty of care, the occupier must take “reasonable steps” to bring the restriction or exclusion to the attention of the person to whom the duty is owed. See above, section 8.2.2, Occupiers’ Liability Legislation.

Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII)

Where a party has signed a waiver form, it is immaterial that he or she did not read it, except in three situations: (1) where there has been non est factum; (2) where there has been misrepresentation; and (3) where the defendant knows the plaintiff does not intend to be bound by the form and therefore there is a duty to bring its terms to the plaintiff’s attention.

Morgan v. Sun Peaks Resort Corporation, 2013 BCSC 1668 (CanLII)

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 (CanLII)

In this case, the plaintiff signed and initialed a pre-emptive release with prominent wording about waiver of rights. The court said that it would have been impossible for any literate person to sign this document and remain ignorant of its general purpose and intent: “whether [the plaintiff] read the agreement in full (and he claims that he did not), he cannot fail to have understood what the agreement was about in a general way and must necessarily have determined that he understood and agreed with its thrust and chose not to inform himself further.” The court went on to say: “If the plaintiff chose to sign the form and ignore the consequences, that was a decision freely made by the plaintiff. The plaintiff was not free unilaterally to contract out of the waiver that he knew or ought to have known was a condition of his access to the [ski] resort.”

Levita v. Alan Crew et al, 2015 ONSC 5316 (CanLII)

The argument by the plaintiff in this case, who was a lawyer, that a release/waiver was not explained to him was not sufficient to dispose of the waiver’s effect. Among other things, the court said that the plaintiff could not retrospectively void the waiver’s effect by arguing he voluntarily signed something he did not understand or read.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

The appellant in this case suffered a catastrophic injury while snowboarding at the respondent’s “terrain park”. In defence of the appellant’s claim, the respondent relied on an exclusion of liability notice that was printed on a sign above the ticket booth where the appellant purchased his ticket, and also on the back of the ticket he received after payment, together with warnings posted on signs at the terrain park. While the appellant did not sign a contract, the Court of Appeal discussed case law on exclusion clauses in signed contracts. It said that, in cases involving signed contracts, knowledge of what the contract contained is presumed. Consequently (referring to Karroll ), as a matter of contract law, “the rule that a party proffering for signature an exclusion of liability must take reasonable steps to bring it to the other party’s attention” is “a limited principle, applicable only in special circumstances.” Accordingly, it is generally no excuse to say, “Although I signed the contract, I did not read it.” In a signed contract case where the Occupiers Liability Act applies, the occupier goes a long way to satisfying the reasonable steps requirement by requiring consumers to take the contracts in hand and sign them. It is not only much more realistic to expect a person to read what is in the person’s hand and has to sign, but it is also presumed under the law of contract. But in notice cases like this one, the reasonable steps rule is not of limited applicability. It is the whole point, and no presumption arises. With respect to its consideration of issues about post-contract notice and the appellant’s past experience, the court said it was helpful to bear in mind that this was not a signed contract case, where a presumption arises that the person signing intends to be bound by the terms of the contract (citing L’Estrange v Graucob).

Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380 (CanLII)

The plaintiff claimed damages for injuries suffered at an “indoor trampoline and fun park”. The defendant relied on an electronic waiver document signed by the plaintiff at a computer kiosk on the defendant’s premises, in which the plaintiff released all claims for damage or injury suffered as a result of participating in trampoline games or activities. A motion for judgment by the defendant was dismissed because the motion judge concluded that there was a genuine issue requiring a trial as to whether the defendant took reasonable steps to bring the terms of the waiver to the plaintiff’s attention. The motion judge agreed with arguments by the plaintiff to the effect that, when the person signing a waiver did not read the terms because they were not afforded enough time or proper conditions to do so, then the party seeking to rely on the document will have reason to know that the person signing did not intend to agree to the terms.

Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII)

On a motion for summary judgment based entirely on the terms of a waiver and release of liability signed by the plaintiff, the court said there are other cases considering liability where there are unsigned waiver terms printed on a ticket or buried elsewhere in a patron’s dealings with the defendant. That was not the case here. This case involved an explicit waiver signed by the plaintiff. A person who actually signs a waiver will be presumed to have intended to be bound by it. In Apps v. Grouse Mountain, above, the British Columbia Court of Appeal also made the point that knowledge of the agreed terms is presumed, stating (among other things) that it is generally no excuse to say, “Although I signed the contract, I did not read it.” There is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. If a plaintiff is provided with an opportunity to read the agreement, it is up to her to choose whether to read it or not.

French v. Augusta Motorsports Park, 2021 ONSC 8385 (CanLII)

The plaintiff Randall French was admitted to a motorsports event at Augusta Motorsports Park. When he arrived at the park, he was presented with, and he signed, a release and waiver, but his evidence was that he thought he was signing a registration form rather than a waiver. He did not participate in any of the races at the event. He suffered serious injuries when a four-wheel drive vehicle he was riding in a sand pit – a restricted area – tipped backward and landed on him. The court said that the law relating to waivers was recently summarized in Arksey, above. As in Arksey, the court said, there was no indication that Augusta ought reasonably to have known that Randall was not consenting to the terms that he signed. To the contrary, by all subjective and objective accounts, Randall consented to the terms of the waiver. The court found that a reasonable person could not have missed the title of the waiver which expressly stated that it was a release of liability and a waiver of claims, nor could a reasonable person have missed other material words of the waiver. Signs posted throughout the park would have reinforced to a reasonable person that they had signed a release and waiver and that by signing, the signor waived certain legal rights. There was no obligation on Augusta to ensure that Randall read or understood the Waiver. By all subjective and objective accounts, Randall consented to the Waiver he signed.

8.3.5 Expectations

A number of Canadian authorities indicate that contractual interpretation is an exercise in discerning the reasonable expectations of the parties with respect to the meaning of contractual provisions: see section 5.8, Reasonable Expectations, above. But the expectations, or reasonable expectations, of a signatory to a pre-emptive release may be relevant for purposes other than the interpretation of the release. In Karroll v. Silver Star Mountain Resorts , above, at paragraph 25, the court said: “Many factors may be relevant to whether the duty to take reasonable steps to advise of an exclusion clause or waiver arises. The effect of the exclusion clause in relation to the nature of the contract is important because if it runs contrary to the party’s normal expectations it is fair to assume that he does not intend to be bound by the term.”

Thus, in considering whether a duty arises at common law to take reasonable steps to give notice of contractual provisions intended to have the effect of a pre-emptive release, one pertinent factor is whether the terms releasing or excluding liability run contrary to the normal expectations of a party (i.e., the releasor). Note that statutes such as the Ontario Occupiers’ Liability Act require an occupier to take reasonable steps to bring a restriction or exclusion of liabliity to the attention of the person to whom a duty of care is owed: see above, section 8.2.2, Occupiers’ Liability Legislation. Decisions on reasonable steps to give notice of a pre-emptive release, whether concerned with statutory or common law requirements, or both, are gathered together below in section 8.4.3.

Summarized in this section are decisions in which Canadian courts considered expectations or reasonable expectations to be relevant to issues about the application or enforcement of pre-emptive releases.

Leonard v. Dunn, 2006 CanLII 33419 (ON SC)

The plaintiff had signed a “game sheet” containing a waiver/release as a condition of playing recreational, non-contact hockey in a sports facility. The court said that a consideration of the ambit of the waiver required an examination of the reasonable expectations of a player playing in a league of this kind in a facility of this kind. For the waiver to operate in the circumstances of the case, it would be necessary to find that an unprovoked battery is an element of the reasonable expectations of an adult recreational hockey player playing in this non-contact league. The court said that it had no hesitation in finding it was not.

Stein v. Exec-U-Fit Personal Fitness, 2007 CanLII 16447 (ON SC)

Two earlier decisions regarding parties protected by a release, Lafontaine and Quick , can be reconciled on the basis of the expectations of the parties. The issue of whether the particular defendant in this case was protected by a release was dependent on findings of fact with respect to the reasonable expectations of the parties in all the circumstances, which could not be resolved on a motion for summary judgment.

Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII)

The plaintiff signed a release and waiver in connection with her participation in a continuing education course for physiotherapists. Given the circumstances surrounding the signing of the waiver, a clause excluding liability for negligence would run contrary to the normal and reasonable expectations of the course participants. In contrast to inherently risky recreational and sporting activities, it is unlikely that a participant in a physiotherapy training course would expect that it was a condition of participation to assume responsibility for the negligence of the professional organization and its agents.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 (CanLII)

In this case, the court said that the release and waiver terms set forth in the document signed by the plaintiff were of the sort that most people fully expect at ski resorts. If a resort is seeking a waiver of liability it is necessarily seeking a waiver of matters which, but for the waiver, might be the responsibility of the resort. At the very least, the concept of a waiver would bring to the ordinary customer’s mind a waiver of claims of negligence attributed to the operator of the resort. This is what an ordinary customer would expect to find in the “fine print” of such a document and exactly what was in the document signed by the plaintiff.

Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10 (CanLII)

This case involved a waiver and release that was executed electronically: customers who wished to participate in go-kart races executed the release as they proceeded through a kiosk system. The court concluded that reasonable measures were taken to ensure that customers received notice of the waiver and release provisions. In this context, the court said that the activity was of a nature where it would be normal for participants to expect to have to sign a waiver and release.

8.3.6 Previous Experience with Releases or Waivers

In cases involving the effectiveness or enforceability of pre-emptive releases, the party seeking the protection of the release may rely on arguments about the releasor’s previous experience with releases or waivers.

Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII)

The court found that the plaintiff was aware of the nature of a release and waiver that he signed before participating in a guided ATV tour because, among other things, the plaintiff had signed waiver forms in the past.

Cejvan v. Blue Mountain Resorts Ltd., [2008] O.J. No. 5442 (Ont. SCJ)

A warning of exclusion of liability and waiver was printed on the back of the tear-away portion of a lift ticket purchased by the plaintiff so that he could participate in snowboarding at the defendant’s resort. The court found that the plaintiff was given reasonable notice of a waiver and limitation of liability both by way of multiple and ideally located signs, which were “garish, legible and clear” in their wording, and on the back of the lift ticket provided to him. In support of the finding that due notice of a waiver and limitation of liability was brought home to the plaintiff, the court referred to the plaintiff’s “prior attendance at this particular ski hill on numerous occasions”, his personal sophistication and the nature and extent of signage.

Newsham v. Canwest Trade Shows Inc., 2012 BCSC 289 (CanLII)

The plaintiff rented booth space at a show and the reverse side of the exhibitor’s contract signed by the parties contained a release of liability clause. The plaintiff was familiar with similar clauses following his experience from a previous knee injury. The court was satisfied that, had the plaintiff read the waiver clauses, he would have understood sufficiently that he was agreeing he could not sue the defendant or its agents or employees. The court said that the words were clear enough, especially given the plaintiff’s previous litigation experience, to defeat the plaintiff’s claim.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 (CanLII)

The plaintiff admitted to skiing at the defendant’s ski resort in previous years and he knew or ought to have known of the type of release that the defendant required of its customers and, even had he not read the actual agreement before him before signing it, his prior experience would have given him every reason to expect that the language would be similar to that which he had previously seen. In fact, it was.

Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 (CanLII)

The court said that the intention of an exclusion, release and waiver of claims was clear – to exclude liability on the part of a ski area operator – and noted that the plaintiff was very familiar with the language. The plaintiff had seen the language many times and had “carried on his activities” on the basis that he was assuming all risk of personal injury.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

The appellant in this case suffered a catastrophic injury while snowboarding at the respondent’s “terrain park”. In defence of the appellant’s claim, the respondent relied on an exclusion of liability notice that was printed on a sign above the ticket booth where the appellant purchased his ticket, and also on the back of the ticket he received after payment, together with warnings posted on signs at the terrain park. An issue on appeal was whether the appellant’s familiarity with the practice at “Whistler Mountain” – that patrons buying season’s passes and renting equipment sign release of liability documents – fixed him with knowledge of the specifics of the respondent’s waiver, particularly a clause excluding liability for the respondent’s own negligence. The Court of Appeal said that, as observed by the lower court, an own negligence clause is among the most onerous of terms, requiring the respondent to provide the most explicit notice. The fact that the appellant had some previous awareness that when he signed an agreement at Whistler he was waiving legal rights of some sort, could not satisfy that obligation in this case. While as between him and Whistler, he must be assumed to have understood what he was signing because he signed Whistler’s document, as between him and the respondent, that assumption was not transferable to satisfy the respondent’s obligation when purporting to contract out of its duty of care under the Occupiers Liability Act, and no “inference” could arise, at least in the absence of an express appreciation by the appellant that such terms were standard and expected. No such express appreciation was found here. The appellant had neither actual knowledge of the term, because he did not read it, nor an express understanding that its inclusion was standard. That situation was by no means fatal to the respondent’s position. It will not avail the consumer to say, “I did not read the notice”, if the party relying on the exclusion of liability took reasonable steps to draw the own negligence clause to the consumer’s attention. On the findings of the court below, the respondent could not be held to have done so. There was accordingly no basis for the lower court’s conclusion that, given his experience, the appellant should have known of the waiver of liability for the respondent’s own negligence.

8.3.7 Effectiveness of an Ambiguous Release

Case law on the interpretation of releases indicates that ambiguity in the words of a release will be resolved against the interests of the party who wrote or provided the wording. More generally on the subject of interpretation of contracts, it has been said that the application of the contra proferentem doctrine in cases of ambiguity ensures that the meaning least favourable to the author of the document prevails: Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 SCR 415, at paragraph 9. As to the interpretation of ambiguous words of a release and the application of the contra proferentem doctrine, see Chapter 5: Interpretation of Releases, section 5.10, Ambiguity or Errors in a Release.

The decisions below approach the issue of ambiguous words in a pre-emptive release from a somewhat different angle. The reasoning in these decisions touches on whether or not a pre-emptive release or waiver may be invalid or ineffective due to ambiguity in its wording.

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

In this case, the court said that the onus of proving the validity of an exclusion clause or waiver lies on the party who claims it; the defendants drafted the waiver and any ambiguity is resolved against the drafter; and should the waiver be found to be ambiguous then it is deemed ineffective and cannot be enforced. The court went on to find that the waiver relied upon by the defendant was ambiguous.

Kempf v. Nguyen, 2013 ONSC 1977 (CanLII) , appeal allowed on other grounds, 2015 ONCA 114 (CanLII)

A party relying on a waiver has the onus of proving the validity of the document and any ambiguity is resolved against “the party who is attempting to rely on it”.

Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 (CanLII)

With regard to an agreement containing a pre-emptive release, the judge on a motion for summary judgment said that ambiguity alone does not invalidate the contract. Only if neither party had reason to know the other’s meaning will there be no contract. Otherwise, the effect of ambiguity is strictly to limit the contract’s application to the reasonable interpretation most favourable to the plaintiff.

Peters v. Soares, 2019 BCSC 189 (CanLII)

In determining whether the contractual terms of a waiver and release are broad enough to encompass the claims bright by the plaintiff against the defendants, if the contract terms are imprecise, vague or ambiguous, general contractual interpretation principles may preclude it having binding effect.

Paksa v. Ontario Gymnastics, 2019 ONSC 7019 (CanLII)

According to the decision in this case, one essential prerequisite common to all cases where a waiver (pre-emptive release) is considered to be binding is that it is unambiguous; any ambiguity is construed against the party who prepared it.

8.4 Communications Regarding a Pre-Emptive Release

As discussed above, a requirement may arise at common law or by statute that a party seeking to rely on a restriction or exclusion of liability must take reasonable steps to bring the exclusion to the attention of the other party. Case law in which courts have considered whether terms of a pre-emptive release were brought to the attention of the intended releasor is summarized below in section 8.4.3, Communication of the Terms of a Release. Decisions dealing with other communication or disclosure issues arising in relation to pre-emptive releases are summarized in sections 8.4.1 and 8.4.2.

8.4.1 Disclosure of Risks

The reasoning of the courts in the decisions summarized below touches on the extent to which the party intending to rely on a pre-emptive release must disclose specific risks to the other party.

Kempf v. Nguyen, 2013 ONSC 1977 (CanLII) , appeal allowed on other grounds, 2015 ONCA 114 (CanLII)

If a party is seeking to rely on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered.

Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001 (CanLII)

The plaintiff in this case, who had signed a pre-emptive release, gave evidence of his understanding of informed consent: if he was signing something where there were serious risks, specific risks, or common risks, these would be brought to his attention. The court said that filtering the facts of the case through the lens of “informed consent” cannot be the measure by which to test the adequacy of the release.

8.4.2 Explanation of Terms or Legal Effect of a Release

The reasoning of the courts in the decisions summarized below touches on whether the party intending to rely on a pre-emptive release must take steps to see that the terms or legal effect of the release are understood by the other party.

Cudmore Estate v. Deep Three Enterprises Ltd., [1991] O.J. No. 1453

In connection with a pre-emptive release required by the National Association of Scuba Diving Schools Inc. to be signed by students participating in scuba diving activities and instruction, the court said that there was an obligation on N.A.S.D.S. or its representative to make sure that each student understood the legal effect of the waiver. On the facts of the case, two students perished while participating in ice diving. The court said: “It should have been made clear to the student when this hazardous undertaking was going to be entered into that they had waived all rights for any claim arising therefrom.”

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

In this case, the court said that, when a waiver is signed before participation in a potentially dangerous activity, the defendant must ensure that each participant understands the legal effect of the waiver if the defendant intends to rely on it against a claim. It must be made clear to the participants that they are foregoing all rights to make any claim howsoever arising.

Levita v. Alan Crew et al, 2015 ONSC 5316 (CanLII)

The plaintiff in this case, who was a lawyer, argued that a release/waiver was not explained to him, but this was not sufficient to dispose of the waiver’s effect. If he was unclear about the meaning of the document or felt he had insufficient time to read it, it was open to him to take the necessary steps to satisfy himself that he understood the document before he signed it.

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

On consent of the parties, the jury decided certain issues in this case relating to waivers contained in a Membership Agreement while the ultimate validity of the waiver was to be decided by the trial judge. Under the Ontario Occupiers’ Liability Act, in order to exclude its duty of care, the occupier must take reasonable steps to bring an exclusion to the attention of the plaintiff. While questions about whether an occupier took reasonable steps to bring exclusions to the attention of the plaintiff were answered in the affirmative by the jury, the plaintiff argued, relying on Gallant, above, that there was no evidence the defendant had explained the implications of the waivers. The trial judge held that the plaintiff could not ignore the arguments at trial and the findings of the jury and ask for such a determination to be made.

Arif v. Li, 2016 ONSC 4579 (CanLII)

There is no independent legal obligation on a person seeking the benefit of a release to explain its legal effect to the signer of the release.

8.4.3 Communication of the Terms of a Release

As discussed above in section 8.3.4, legislation such as the Ontario Occupiers’ Liability Act indicates that, where an occupier seeks to restrict or exclude the occupier’s duty of care or the occupier’s liability for breach of the duty, the occupier must take “reasonable steps” to bring such restriction or exclusion to the attention of the person to whom the duty is owed. At common law, a requirement to take reasonable steps to give notice of an exclusion clause or waiver has also been recognized. Decisions on reasonable steps to give notice of a pre-emptive release, whether concerned with statutory or common law requirements, are summarized in this section.

Note that, as indicated by the British Columbia Court of Appeal in Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII) , in cases involving signed contracts, knowledge of what the contract contained is presumed: see also, for example, Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII) . There is no general requirement at common law that a party tendering a document for signature take reasonable steps to apprise the party signing of onerous terms or to ensure that the signing party reads and understands them: Karroll v. Silver Star Mountain Resorts, 1988 CanLII 3094 (BC SC), at paragraph 22. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question that such an obligation arises. Many factors may be relevant to whether the duty to take reasonable steps to advise of an exclusion clause or waiver arises (Karroll, paragraph 23). The effect of the exclusion clause in relation to the nature of the contract is important because if it runs contrary to the party’s normal expectations it is fair to assume that he does not intend to be bound by the term (Karroll, paragraph 23). The length and format of the contract and the time available for reading and understanding it also bear on whether a reasonable person should have known that the other party did not in fact intend to sign what was being signed. Other considerations may be important, depending on the facts of the particular case (Karroll, paragraph 23).

Litner v. Delta Charters Inc., 1997 CanLII 4152 (BC SC)

A form of charter agreement for a vacation cruise was not brought to the attention of the plaintiff and, even if it was, the waiver and release included in the document was “buried in the fine print”. The exclusionary clauses would not be enforceable in these circumstances.

Argiros v. Whistler and Blackcomb Mountain, [2002] O.J. No. 3916 (Sup. Ct. Jus.)

The plaintiff’s assertions that the terms of a pre-emptive release were not pointed out to him, that he did not read them and that he would not have understood them if he had read them were irrelevant because the test is an objective one, namely, whether “reasonable steps” were taken to bring the pre-emptive release to the plaintiff’s attention.

Pelechytik v. Snow Valley Ski Club, 2005 ABQB 532 (CanLII)

Determining whether reasonable steps were taken to bring a pre-emptive release to the attention of the plaintiff is a finding of fact to be made in each case. On this application for summary judgment, the evidence provided with regard to signage at the defendant’s ski resort was not satisfactory and it was a triable issue whether the defendant took reasonable steps to bring the pre-emptive release to the plaintiff’s attention.

Champion v. Ski Marmot Basin, 2005 ABQB 535 (CanLII)

The Master held that a ski area operator took reasonable steps to bring to the plaintiff’s attention a pre-emptive release/waiver printed on a ski lift ticket. The Master repeated the finding in the McQuary case that the exclusion of liability conditions were there to be seen and read by the plaintiff both on signs around the ski resort and on the ticket and, if they were not seen and read, it was a result of the plaintiff’s own carelessness.

Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII)

The plaintiff signed a release and waiver before participating in a guided ATV tour. The court found that the plaintiff did not read the document, but knew what it was and what it was intended to do; among other things, the court found that the plaintiff skimmed the top line of the document, the form was simple to read and easy to understand and the plaintiff at least knew it was meant to discourage him from suing if something happened. The court held that the defendants took reasonable and sufficient steps to bring the terms of the release and waiver to the attention of the plaintiff.

Parker v. Ingalls, 2006 BCSC 942 (CanLII)

The plaintiff signed a Student Enrolment Agreement, and a later document with a paragraph under the heading “Liability Waiver”, in connection with his participation in martial arts training. The trial judge said there was no doubt that the plaintiff did not read the waiver “hidden” in the Student Enrolment Agreement and that there was no discussion about the risk of injuries. The trial judge also said that the Liability Waiver constituted only a very small portion of the second document and that it appeared in extremely small print with no emphasis to direct the reader to its importance or to the fact that he or she would be giving up all rights to sue the martial arts studio. There was no provision to draw the student’s attention to the fact that, by signing, he or she was waiving any legal rights. The court found that the defendant did not take reasonable steps to bring the waiver to the attention of the plaintiff.

Okihiro v. 572412 B.C. Ltd., 2008 BCSC 1161 (CanLII)

The plaintiff rented a golf cart and signed a credit card receipt that included a paragraph under the heading “Cart Liability”. The heading “Cart Liability” did not convey the scope of the waiver contended for by the golf course defendants. That heading, and the brief nature of the transaction, did nothing to alert the plaintiff that he was signing a document as potentially wide-ranging as an assumption of liability and a release of claims for damages suffered from or through use of the golf cart.

Cejvan v. Blue Mountain Resorts Ltd., [2008] O.J. No. 5442 (Ont. SCJ)

A warning of exclusion of liability and waiver was printed on the back of the tear-away portion of a lift ticket purchased by the plaintiff so that he could participate in snowboarding at the defendant’s resort. The court said that the fact that the warning was printed on tear-away paper did not “undermine the significance of the location”. In order to be able to remove the waxed paper from the lift ticket and then attach the ticket to the holder, a patron would need to look at the ticket and employ fine motor skills and pay attention to achieve removal. The court found that due notice of a waiver and limitation of liability was brought home to the plaintiff. He was given reasonable notice both by way of multiple and ideally located signs, which were “garish, legible and clear” in their wording, and on the ticket provided to him. The conditions printed on the back of the ticket were part of the contractual relationship between the parties and were binding.

Arndt v. The Ruskin Slo Pitch Association, 2011 BCSC 1530 (CanLII)

The plaintiff signed up to play for a team in a softball league. She thought she was signing a team roster and did not know that the document contained a waiver of liability. But that was not the end of the enquiry regarding the enforceability of the release: the issue was whether a reasonable person would know that the plaintiff did not intend to agree to a liability release. If the answer was “yes”, then the waiver’s enforceability would depend on whether or not reasonable steps were taken to bring the waiver to the plaintiff’s attention. While, in the context of a non-profit softball league, the general concept of a waiver of liability would not be contrary to normal expectations, the document on its face did not appear to be a waiver – it appeared to be a roster. Unlike the waivers held to be enforceable in other cases, the release was not a separate sheet and the waiver and signature were not on the same page. The court held that the waiver was not enforceable against the plaintiff.

Newsham v. Canwest Trade Shows Inc., 2012 BCSC 289 (CanLII)

The plaintiff rented booth space at a show and it was agreed that, in lieu of paying rental fees for the space, the plaintiff would perform at the show. The reverse side of the exhibitor’s contract signed by the parties contained a release of liability clause. The plaintiff was injured during a performance when he slipped on a stage. The court referred to the Karroll case and said that, if the surrounding circumstances are such that a reasonable person should have known that the plaintiff was not consenting to the waiver clauses, then the defendant owed an obligation to the plaintiff to explain to him that the waiver clauses encompassed his activities as a performer. The court said that the general nature of the exhibitor’s contract related to activities and obligations associated with exhibiting in booths and a reasonable person would not have known that the plaintiff’s signature indicated his consent to the waiver clauses in his capacity as a performer. The court found that the circumstances required the defendant to bring the waiver clauses to the plaintiff’s attention, which the defendant did not do. Further, the court held that occupiers’ liability legislation required the defendant to take reasonable steps to bring the waiver clauses to the plaintiff’s attention.

Morgan v. Sun Peaks Resort Corporation, 2013 BCSC 1668 (CanLII)

The cases are clear that it is not necessary for the party relying on a pre-emptive release/waiver to prove that the person who signed the document actually read it first. In this case, the evidence was clear that the defendant brought to the plaintiff’s attention the exclusion of liability set out in the release. The form was worded in a size of font that was easy to read. A warning that it was a release of liability was at the top of the page in large bold type in a box highlighted in yellow and outlined in red, with a line for initials under it. The release was a stand-alone page, not “hidden inside any other lengthy contract”.

Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII)

In the case of a signed release or waiver, it is only where the party tendering the document for signature knew or ought to have known that the signing party was not consenting to the terms in question that the obligation arises to take reasonable steps to advise the signing party of the details and implications of the waiver. The party tendering the document must have been reasonably satisfied that the waiver, including any onerous terms, were in the specific contemplation of the signing party at the time when the document was signed.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 (CanLII)

In this case, the plaintiff signed and initialed a pre-emptive release with prominent wording about waiver of rights. The plaintiff had skied at the defendant’s resort in previous years and had purchased lift tickets with language about exclusion of liability and assumption of risks. This language was “loudly and boldly” displayed in public areas at the ski hill. The court said it was “hard pressed to imagine” what more the defendant could have done to bring the terms of waiver and release of liability – required conditions of access to the ski hill – to the plaintiff’s attention. The court concluded that there was no need to decide whether there was a duty to bring the waiver clause to the attention of the plaintiff as the defendant did in fact employ all reasonable measures to do so.

Levita v. Alan Crew et al, 2015 ONSC 5316 (CanLII)

The argument by the plaintiff in this case, who was a lawyer, that a release/waiver was not explained to him was not sufficient to dispose of the waiver’s effect. If he was unclear about the meaning of the document or felt he had insufficient time to read it, it was open to him to take the necessary steps to satisfy himself that he understood the document before he signed it. He cannot retrospectively void the waiver’s effect by arguing he voluntarily signed something he did not understand or read.

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

On consent of the parties, the jury decided certain issues in this case relating to waivers contained in a membership agreement while the ultimate validity of the waiver was to be decided by the trial judge. Under the Ontario Occupiers’ Liability Act, in order to exclude its duty of care, the occupier must take reasonable steps to bring an exclusion to the attention of the plaintiff. While questions about whether an occupier took reasonable steps to bring exclusions to the attention of the plaintiff were answered in the affirmative by the jury, the plaintiff argued, relying on Gallant, above, that there was no evidence the defendant had explained the implications of the waivers. The trial judge held that the plaintiff could not ignore the arguments at trial and the findings of the jury and ask for such a determination to be made.

Urbanson v. Western Canadian Place Ltd., 2016 ABQB 32 (CanLII)

The more dangerous the activity, the more effort should be taken to bring the nature and effect of a waiver to the attention of the participant. In this case, the activity in question – use of a fitness facility – was one of moderate inherent risk. The witness from the fitness facility did not claim that it was standard procedure to draw attention to, or say anything about, the form of waiver; apparently, the waiver form was allowed to speak for itself. Among other things, the waiver was presented as one separate page with a bolded heading in larger font and capitalized letters and a bolded statement about reading the document. Given the relative sophistication of the plaintiff and the formatting of the document, the Master held that the defendant fulfilled its duty to make reasonable efforts to bring the import of the waiver to the attention of the plaintiff, or, to use the language in the Karroll decision, there were no circumstances to indicate to the defendant that the plaintiff was not consenting to the terms in question.

Birss v. Tien Lung Taekwon-Do Club, 2017 ABQB 518 (CanLII)

The Master dismissed an application for summary dismissal of the plaintiff’s claim in this case, but concluded that a release and waiver included in documents signed by the plaintiff was binding on the plaintiff. The Master said that the waiver of liability terms were plain and clear in the documents proffered to the plaintiff, there was nothing to suggest the plaintiff was pressured to sign anything and someone was present at the time of signing to answer any questions.

Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001 (CanLII)

In this application, the issue under the Occupiers’ Liability Act was whether the defendant, the owner and operator of a mountain biking park, met its duty to take steps to bring the release upon which it relied to the attention of its patrons. The court said that its analysis with regard to the validity of the release also applied to this issue because the same facts and legal principles were involved. The court found that any reasonable person who could read English, faced with the document, would understand that the risks of using the park were very serious and that, by signing it, the person waived the right to sue. The court also said that the characteristics of the plaintiff were relevant to its determination: the plaintiff’s reading and comprehension skills were considerably higher than the average, reasonable person and he had a sophisticated understanding of liability that exceeded the average person.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII)

If an agreement includes a waiver but is excessively long, complicated, tendered for a different purpose, or if there is reason to believe that an individual might be mistaken about the terms, it may be necessary for the party tendering the contract specifically to draw attention to the waiver. The question of whether notice is required will involve a context-specific analysis including subjective and objective factors. In this case, a release and waiver was clear, noticeable and easy to read and no attempt was made to “disguise” its terms.

Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10 (CanLII)

This case involved a waiver and release that was executed electronically: customers who wished to participate in go-kart races executed the release as they proceeded through a kiosk system. The court concluded that reasonable measures were taken to ensure that customers received notice of the waiver and release provisions. The kiosk system was designed to ensure that the waiver and release page was presented to customers and customers had to indicate acceptance before they could participate. Further, the court said that the activity was of a nature where it would be normal for participants to expect to have to sign a waiver and release.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

In 1877, the Court of Appeal of England considered a clause on the back of a ticket, given for the deposit of luggage, that purported to exempt the railway from any kind of responsibility for any articles left (referring to Parker v South Eastern Rail Co. (1877), 2 CPD 416). Then, as now, the waiver’s enforceability depended on whether reasonable steps had been taken to bring the condition to the attention of the claimant. The mere fact of providing a ticket on which there was printing was insufficient to put the claimant on the necessary notice. Just how much is required in order to be “reasonably sufficient to give the plaintiff notice of the condition” (referring to Parker again) will depend upon the nature of the restrictive condition. The more onerous the condition, the more rigorous will be the requirement for what constitutes reasonable notice. Among the more onerous of conditions is the own negligence clause. This is particularly so in the field of sports activities where consumers might well expect a service provider to exclude liability for injury or loss arising from the inherent risks of the activity, but would be taken aback by an exclusion of liability for that provider’s own carelessness. In the circumstances of this case, these issues fell to be considered in two legal contexts: the law of contract and the Occupiers Liability Act. Under section 4 of the OLA, an occupier must take reasonable steps to bring a modification or exclusion of the occupier’s statutory duty of care to the attention of a patron using the occupier’s premises. In the result of this case, the B.C. Court of Appeal set aside the order of the lower court dismissing the appellant’s claims. The Court of Appeal concluded that, in considering whether reasonable notice of the waiver had been given, the lower court incorrectly took into consideration what was posted on signage that the appellant could not have seen at the time when he purchased his ticket. The Court of Appeal also concluded that the fact that the appellant had some previous awareness, when he signed an agreement at Whistler Mountain, that he was waiving legal rights of some sort, could not satisfy the obligation of the occupier in this case.

Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 (CanLII) , appeal dismissed, 2019 ONCA 718 (CanLII)

Under the Ontario Occupiers’ Liability Act, to rely on an exclusion of liability, an occupier must take reasonable steps to bring the exclusion to the attention of the party to whom a duty of care is owed. In some cases, the reasonableness of the steps taken to bring a release to the attention of the party signing an agreement may be apparent from the document itself. In this case, the document did nothing to draw an exclusion of liability to the attention of the person to whom a duty of care was owed. The exclusion was on the reverse of an agreement under the general heading Membership Agreement – Terms and Conditions and the terms and conditions were in “tightly printed ‘fine print’”. There was no place for the plaintiff to sign or initial the exclusion clause, which would have provided some evidence of reasonable steps to bring the waiver to the attention of the signer. The defendant did not present any evidence from the employee who was present at the time of signing.

McCallum v. Jackson, 2019 ONSC 7077 (CanLII)

The court followed the line of analysis in Arif v. Li, above, regarding consensus ad idem and considered, first, whether a reasonable person would have known that the plaintiff did not intend to agree to the indemnity provisions of a release that he signed and, second, whether the defendants took reasonable steps to bring the content of the release to the plaintiff’s attention. The court said there was so much “legalese” in the indemnity clause that it failed to say what it meant and a reasonable person should have known that the plaintiff was not consenting because the indemnity provisions had no discernable meaning.

Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380 (CanLII)

Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII)

This was a decision on a motion for summary judgment based entirely on the terms of a waiver and release of liability signed by the plaintiff. The waiver was required by the defendant to allow the plaintiff to play an inherently dangerous game at its place of business. The court said the context dictated that the defendant must take reasonable steps to bring the terms of the waiver to the plaintiff’s attention under the Occupiers’ Liability Act. The defendant had directed the plaintiff to a “waiver kiosk” to review and accept its required waiver. To operate the computer at the kiosk, the plaintiff had to touch the screen with her finger(s) in appropriate places. Rather than just allowing the user to scroll through the legal terms, the form required the plaintiff to touch her finger to a box beside each of two key paragraphs on the screen to enter a checkmark beside the words “I agree” beside each paragraph. The plaintiff indicated her express acceptance and agreement to the terms by using her finger to place checkmarks in each of the specific boxes. The plaintiff accepted both before pressing the general “Accept” button at the bottom of the screen. The court found that the defendant took reasonable steps to bring the terms of the waiver to the plaintiff’s attention, stating that there was signage, a separate kiosk, and computer screens that required the plaintiff’s attention and deliberate, voluntary conduct. Short of standing over her and forcing her to read the terms and say out loud to a video recorder that she agreed to play at her own risk despite injury, the court did not know what more the defendant could have done to alert the plaintiff.

8.4.3.1 Post-Contract Notice

The Ontario Court of Appeal discussed the timing of reasonable notice of a contractual clause limiting or excluding liability in Trigg v MI Movers International Transport Services Ltd, 1991 CanLII 7363 (ON CA), application for leave to appeal dismissed, [1991] SCCA No 469). The court said this, among other things, about the timing of notice:

Once the issue is framed so that the adequacy of the notice determines whether the clause was imported into the agreement, then the timing of the notice becomes crucial. Essentially, a term cannot be included in an agreement unless it was contemplated at the time that the agreement was concluded, or was added thereto by a proper variation or modification.

The Trigg case was referred to in the Apps decision below, where the British Columbia Court of Appeal discussed the relevance of notices that could not have been seen at the time of ticket purchase when considering whether reasonable steps were taken to bring an exclusion of liability to the attention of a patron of a terrain park.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

The appellant in this case suffered a catastrophic injury while snowboarding at the respondent’s “terrain park”. In defence of the appellant’s claim, the respondent relied on an exclusion of liability notice that was printed on a sign above the ticket booth where the appellant purchased his ticket, and also on the back of the ticket he received after payment, together with warnings posted on signs at the terrain park. The Court of Appeal concluded that, in considering whether reasonable notice of the waiver had been given, the lower court incorrectly took into consideration what was posted on signage that the appellant could not have seen at the time when he purchased his ticket. The appellate court referred to a passage from the Trigg v MI Movers International decision that included the excerpt set out above. While it is true that the courts have sometimes considered notices other than those posted for view before the purchase of the ticket, they did not do so in the context of whether reasonable steps had been taken to bring a contractual exclusion clause to the notice of the skier, as opposed to whether adequate warning had been given of the risks of using a particular ski hill feature. What was said on the signs at the entrance to the terrain park was relevant only to the question of whether it gave reasonable notice of the risks of using that park, a question that was not before the court. By the time the appellant arrived at the terrain park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding. It was far too late to give notice of what was in the waiver. That had to be done at or before the ticket booth.

8.4.4 Representation Regarding Scope of Release

The decision below indicates that an improper representation about the scope of a pre-emptive release may affect the enforceability of the release.

Poluk v. Edmonton (City), 1996 CanLII 10537 (AB QB)

The plaintiff claimed damages for a fractured elbow that he suffered when he hit an iron post at the defendant’s golf course. The plaintiff had won a contest sponsored by a radio station that paid his entry fee enabling him to play in a golf tournament. The entry form that he completed at the radio station included a release on the back of the form which the plaintiff signed. The court held that the defendant could not rely on the release. Among other things, the release was not properly represented to the plaintiff. The promotion manager at the radio station advised the plaintiff that signing the release form meant the radio station would not be liable if the plaintiff was hit by a golf ball. While the plaintiff did not read what he signed, given the hasty informal way the release was presented to the plaintiff and the improper representation of the release, the defendant could not rely on the release to escape liability for the plaintiff’s injuries.

8.5 Scope of Pre-Emptive Release

General case law on the scope and application of releases is presented in Chapter 6 above. The intent of this section is to present cases that are specific to issues about the scope of pre-emptive releases.

8.5.1 Identification of Particular Risks

In the decisions summarized in this section, Canadian courts have expressed views about the extent to which risks within the scope of a pre-emptive release must be listed, identified or particularized in the release.

Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII)

The plaintiff signed a release and waiver before participating in a guided ATV tour. He had previously signed similar types of waivers and he asked the court to compare the very specific types of activities (risks) referred to in a waiver previously signed by him with the “very non-specific activities” referred to in the ATV tour release. The court found that the ATV tour release sufficiently identified the nature of the activities it was intended to cover, although it did not expressly list them.

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

In this case, the court quoted a passage from the Ochoa decision to the effect that a waiver seeking to cover negligent conduct must contain something more than the word negligence, which would include, at the least, a context for the word negligence describing the kind of conduct amounting to negligence that is intended to be covered. The court went on to say that the waiver in Ochoa was very precise, describing and listing the risks and dangers of the activity, while there was no such description, nor any mention of negligence, in the waiver in this case.

Kempf v. Nguyen, 2013 ONSC 1977 (CanLII) , appeal allowed on other grounds, 2015 ONCA 114 (CanLII)

If a party is seeking to rely on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered.

Levita v. Alan Crew et al, 2015 ONSC 5316 (CanLII)

In Kempf, above, the judge at first instance said that, if a party relies on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered. In this case, the waiver was unambiguous as to the risks associated with hockey that it covered and the wording described the very claim made by the plaintiff.

Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001 (CanLII)

Where a plaintiff signs a contract containing an exclusion of liability clause, identification of specific risks is not generally required. Many cases do not even refer to the severity or mechanism of injury. It is enough that the waiver is described as “broad in scope and effect”, having an explicit heading in bold print and a body that “contained the waiver of all claims for any cause including negligence”. The law does not require a waiver to identify with specificity every mechanism of injury or possible injury in the face of a broadly worded, comprehensive waiver.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII)

The plaintiff signed release and waiver documents in respect of his participation in a motocross practice session, but claimed that injuries caused by negligent design and maintenance of the motocross track fell outside the scope of the waivers. The court said that the waivers used broad and comprehensive language and that serious injury and death were included in the risks covered by the waivers. Further, the court said that this type of broad, categorical wording has been repeatedly found to cover all types of injuries that fall within the listed categories; the precise types of injuries do not need to be exhaustively listed.

8.5.2 Unusual Risks

While there is no established principle of Canadian law that a pre-emptive release does not cover unexpected or unusual risks, a number of Canadian decisions lend support to an argument that, at least in some circumstances, the scope of a pre-emptive release will not extend beyond those risks that are to be expected when engaging in the activity contemplated by the release. Note that some of the cases in the section that immediately follows this one (section 8.5.3, Expectation of a Safe Environment) could also be seen to involve situations of unexpected or unusual risks.

Cudmore Estate v. Deep Three Enterprises Ltd., [1991] O.J. No. 1453

Two scuba diving students perished while participating in ice diving. In connection with a pre-emptive release required by the National Association of Scuba Diving Schools Inc. to be signed by students participating in scuba diving activities and instruction, the court said that, in order for the waiver to be effective, it seemed reasonable to imply a condition that, since the emphasis was on safe scuba diving, a student was entitled to expect their instructor would be a properly qualified experienced ice scuba diver. The defendant NASDS failed in its obligation to make certain that this was the case and, as a result, the defendants could not “hide behind” the waiver.

Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (ON SC)

The plaintiff claimed damages for injuries suffered while skiing and alleged that she fell on a patch of “slush” created by a defectively-adjusted snow-making machine. The defendant brought a motion for summary judgment and relied on a waiver and release printed on the daily ski ticket issued to the plaintiff. The motion judge concluded there was a real and genuine issue for trial arising from the plaintiff’s allegation that her injuries resulted from hazards that were unexpected, that would not normally occur at a ski facility and that were not contemplated by the wording printed on the ticket. The motion for summary judgment was dismissed.

Champion v. Ski Marmot Basin, 2005 ABQB 535 (CanLII)

The plaintiff claimed damages for injuries suffered while skiing and alleged that he fell because the track for a T-bar lift was dangerously icy, as it had not been groomed or roughened. The plaintiff argued that the ski area operator was negligent and that this negligence “was not one normally encountered”. On this issue, the Master followed the reasoning of the Brown case, above, and held that there was a genuine issue for trial.

Leonard v. Dunn, 2006 CanLII 33419 (ON SC)

The plaintiff signed a “game sheet” containing a waiver/release as a condition of playing recreational, non-contact hockey in the sports facility where the game occurred. The court said that the waiver, properly construed, did not and “ought not, on public policy grounds, extend to unprovoked attacks by one player on another”.

Birss v. Tien Lung Taekwon-Do Club, 2017 ABQB 518 (CanLII)

The plaintiff signed a membership agreement for a taekwondo club that included a waiver of liability. In his reasons for dismissing an application for summary dismissal of the plaintiff’s claim, the Master said that, “in light of evidentiary absences and conflicts”, it was not manifestly clear that the waiver would constitute a full defence to an alleged battery.

Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 (CanLII)

The plaintiff’s day ticket for use of a ski area included an exclusion, release and waiver of liability; he argued that, as far as the enforceability of such a waiver is concerned, the law draws a distinction between risks that regularly exist and are to be expected when engaging in an activity and risks that are extraordinary or unexpected because they are created by the party seeking to rely on the waiver. The court held that the circumstances of the plaintiff’s injury at the ski area were not so extraordinary or unique that it could be said the parties did not intend the exclusion to apply in such circumstances.

8.5.3 Expectation of a Safe Environment

The decisions summarized in this section reveal that a court’s perspective on whether an expectation of a safe environment is a factor in defining the scope of a pre-emptive release will depend on the circumstances of the particular case. These different perspectives perhaps are not all that surprising because, on the one hand, the notion of a completely safe environment sits uneasily, to the say the least, with participation in an activity that is inherently risky, yet, on the other hand, there may well be circumstances or conditions that make the environment for a risky activity more or less safe that it would otherwise have been. Cudmore Estate v. Deep Three Enterprises Ltd., [1991] O.J. No. 1453 (summarized in section 8.5.2 above) involved scuba diving students participating in ice diving, which is an activity that does not immediately bring to mind a “safe environment”: the court referred to ice diving as “probably one of the most hazardous offshoots of scuba diving that one could possibly imagine”. But the court said that, since the emphasis was on safe scuba diving, the students were entitled to expect their instructor would be a properly qualified experienced ice scuba diver.

Sibley v. British Columbia Custom Car Association et al, 2005 BCSC 509 (CanLII)

The plaintiff was injured prior to his intended participation in a motorcycle race as a result of a collision between a snowmobile and his motorcycle. The raceway park was a member track of the National Hot Rod Association and the plaintiff had signed an NHRA release that was reproduced in the NHRA Rulebook. The plaintiff made a number of arguments relating to alleged breaches of the NHRA rules. In its reasons for rejecting the plaintiff’s argument based on the doctrine of fundamental breach, the court said the rules did not guarantee or ensure the safety of participants. Rather, the rules were consistent with the release agreement and placed the prime responsibility for the safe condition and operation of a vehicle on the vehicle owner and driver. The track operator’s main concern was to provide a place to conduct events.

Parker v. Ingalls, 2006 BCSC 942 (CanLII)

The court found that an injury experienced by the plaintiff during martial arts training did not fall within the scope of a waiver that the plaintiff had signed. By engaging in “shoot-fighting” lessons, the plaintiff accepted certain risks of injury, but he did not accept the risk of injury at the hands of the instructor whom he trusted not to harm him. It is not reasonable for the defendant to seek to exclude himself from his own negligence where he is conducting a demonstration in which he has complete control over the safety of the student.

Downs v. Georgian College, 2008 CanLII 63205 (ON SC)

The plaintiff sought damages by reason of injuries he suffered while proceeding through an obstacle course as part of fitness testing for a paramedic program. The defendant relied on two waivers signed by the plaintiff in support of a motion for summary judgment dismissing the plaintiff’s claim. The motion judge said that the release and waiver was predicated on the fact of a properly set up and maintained obstacle course and that factual determinations relating to such issues could only be resolved by a trial judge.

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

The plaintiff signed a release/waiver before participating in a motorcycle riding course. The court said that the defendants had promised a safe environment and it would be unfair and unreasonable to give effect to a waiver and thereby exonerate the defendants from responsibility as a result of their failure to live up to the very promises given at the time of signing the waiver. A party cannot make promises and then attempt to withdraw those promises in a release unless it is done in clear and unambiguous language.

Newsham v. Canwest Trade Shows Inc., 2012 BCSC 289 (CanLII)

Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 (CanLII)

The court said that the facts of this case were distinguishable from Parker v. Ingalls, above. In Parker, the plaintiff was injured by his teacher and instructor, someone who, as found by the court, the plaintiff trusted not to harm him. The plaintiff in this case, a snowboarder, had a very different relationship with the defendant ski resort. Given the words of the defendant’s exclusion, release and waiver of liability, it would have been entirely unreasonable for the plaintiff to expect the defendant to be looking out for his well-being.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII)

The Parker and Gallant cases both involved training courses with an instructor and a key finding that the plaintiff could reasonably expect a safe training environment at those courses. In this case involving motocross warm-up and racing, there was no reasonable expectation of a safe training environment.

Anderson v. Confederation College, 2017 ONSC 5791 (CanLII)

The plaintiff was a student in a Police Foundations program and, on the first day of class, he signed an “Informed Consent Form for Physical Activities” which included a release from claims for injuries or losses. The plaintiff commenced an action as a result of injuries he suffered when he struck his head on a basketball hoop situated near a running track. The defendant brought a motion for summary judgment dismissing the action on the basis of the Consent Form. The court said that the Consent Form must be read as a whole and it said that wording in the document about “strenuous physical exertion”, “injuries or other complications associated with exercise or other physical activities” and consultation with a physician informed the waiver that followed. The court concluded that the waiver concerned the risk of harm from health related issues and physical activity such as self-defence and was not directed at liability for defective premises as under the Occupiers’ Liability Act. The court also said that, should this interpretation be incorrect, the language of the Consent Form was at least ambiguous and any ambiguity must be interpreted in favour of the plaintiff.

8.5.4 Multiple Occasions of Participation in Activity or Event

From time to time, issues arise about whether a pre-emptive release is intended to apply only in respect of one instance of the activity contemplated by it or whether the release has an ongoing, multi-occasion application.

Cooper v. Blackwell, 2017 BCSC 1991 (CanLII)

The court held that a release of liability agreement in respect of a hunting excursion was contemplated and intended by the parties to apply only to an excursion starting and ending on particular dates. The defendants pointed to cases in which liability waivers extended to multiple instances of participation in risky activities occurring on multiple dates. However, unlike this case, the waivers in those cases specifically referred to and included multiple events, whether within a particular season or otherwise.

Inglis v. Medway Pines Stables, 2020 NSSC 97 (CanLII)

On a motion for summary judgment, there was a dispute as to the nature and extent of a pre-emptive release relied on by the defendants in connection with injuries allegedly suffered by the plaintiff while riding a horse at the defendants’ stable. The court said that the release was ambiguous concerning the temporal reach of its provisions: did it apply going forward to all contractual relations between the plaintiff and the defendants, in perpetuity or was it only applicable on the day it was signed in relation to the provision of services provided that day? The contractual interpretation of the release in the context of the surrounding circumstances of its execution could not be dealt with on the motion for summary judgment in this particular case.

Manson v Mitchell, 2023 BCSC 723 (CanLII)

This action arose out of injuries suffered by the plaintiff as a result of a mountaineering incident in July of 2021. The defendants sought a declaration that a waiver and release signed by the plaintiff applied to the mountaineering trip during which the incident occurred and was a full defence to the claim. The plaintiff argued that the waiver and release did not apply to the mountaineering trip during which the incident occurred because it was expressly date-specific and therefore applied only to an earlier climb. The defendants argued that the waiver applied to all rock climbing and mountaineering trips in the summer of 2021 during which the plaintiff was guided by the defendant Mitchell. The court agreed with the plaintiff that the circumstances of this case were akin to those of Cooper v. Blackwell, above. A climb on June 18th was the only guided excursion in which the plaintiff was scheduled to participate when he signed the waiver. There was no obligation on the plaintiff to hire the defendant, or on the defendant to guide the plaintiff, on future climbs. The wording of the waiver referred to the June 18th climb that had been confirmed when the release was signed. While the defendant Mitchell argued that he subjectively intended the waiver would apply to all of his trips with the defendant over the summer of 2021, the court in Cooper noted that a party’s subjective rationale or intent is inadmissible evidence when informing the proper interpretation of a release.

8.5.5 Parties Protected by a Pre-Emptive Release

Case law dealing generally with the parties protected by a release is set out above in Chapter 6: Scope and Application of Releases, section 6.7, Parties Protected/Third Party Beneficiaries. The decisions summarized in this section are concerned specifically with the parties protected by a pre-emptive release.

Poluk v. Edmonton (City), 1996 CanLII 10537 (AB QB)

The plaintiff claimed damages for a fractured elbow that he suffered when he hit an iron post at the defendant’s golf course. The plaintiff had won a contest sponsored by a radio station that paid his entry fee enabling him to play in a golf tournament. The entry form that he completed at the radio station included a release on the back of the form which the plaintiff signed. The court held that the defendant could not rely on the release. Among other things, the defendant did not seek a release from any of the participants. The director of golf courses for the defendant testified that the defendant had insurance and did not seek a release. In fact, he testified he did not know at the time that the defendant had been named in the release as one of the promoters.

Goodspeed et al v. Tyax Mountain Lake Resort Ltd. et al, 2005 BCSC 1577 (CanLII)

Before participating in a guided ATV tour, the plaintiff signed a document indicating that he released and undertook not to sue the rental operator named in the document and all of its related companies, officers, directors and employees. The plaintiff brought an action against the owner and the general manager of the resort where the tour was given and the tour guide. The plaintiff argued that the defendants were not parties to the pre-emptive release and were not releasees under it. The court held that the defendants were sufficiently identified in the release, although it did not expressly name them.

Stein v. Exec-U-Fit Personal Fitness, 2007 CanLII 16447 (ON SC)

On a motion for summary judgment in this case, the motion judge said that participants in a sporting or recreational activity may, by signing releases, enter a contractual relationship not only with the event organizers but also with the other participants. Two earlier decisions on the issue of whether event participants were protected by a release, Lafontaine and Quick , could be reconciled on the basis of the expectations of the parties. On the face of the release before the court, it was not clear whether one of the defendants was covered as a “participant”. The issue of whether the particular defendant in this case was protected by the release was dependent on findings of fact with respect to the reasonable expectations of the parties in all the circumstances, which could not be resolved on a motion for summary judgment.

Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385 (CanLII)

The infant plaintiff in this case claimed to have suffered injury when he was violently thrown to the ground in the course of a sparring match at a Hapkido school owned and operated by the defendant Lok’s Martial Arts Centre Inc. The defendant Michael Lok was the principal of Lok’s Martial Arts Centre Inc. The infant’s mother signed a document which, under the heading “Conditions of Membership and Release”, said that Lok’s Hapkido School and its affiliated studios would not be liable for any claims, injury or damages resulting from active or passive negligence of Lok’s Hapkido School. The court said that, while employees were not expressly released by the words of the document, Mr. Lok himself could rely upon the release as a bar to the plaintiff’s claim if the contract was not void. As in London Drugs Ltd. v. Kuehne & Nagel , the release must have been intended to protect the employees who would discharge the contractual obligations of Lok’s Hapkido School. The allegations made against Mr. Lok in the pleadings were that he failed to perform the very services the plaintiff expected from the Hapkido School. In fact, Mr. Lok and the school were difficult to distinguish. On the material before the court, they appeared to be one and the same. The court found that the benefit of the clause should be extended to Mr. Lok.

Kempf v. Nguyen, 2015 ONCA 114 (CanLII)

While there was reference to “participants” in the pre-emptive release at issue in this case, the waiver did not actually release other participants but rather released various organizations from claims against them, including damages occasioned by the negligence of a participant or other competitor.

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

The plaintiff argued that a waiver of liability offended the Ontario Occupiers’ Liability Act by providing a release for negligence for any other person or guest using the facilities of the defendant. However, the section of the statute relied on by the plaintiff did nothing to prohibit an occupier from using a waiver to provide a release for negligence to protect other individuals using the facilities who were not party to the agreement.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII)

The plaintiff signed release and waiver documents in respect of his participation in a motocross practice session, but argued that the waivers did not explicitly name the association that owned the land on which raceway was located, nor the motocross club that leased the land from the owner. The court said that the track owner and the track lessee were both named by category in the waivers. The fact that generic, categorical names are used does not disguise the purpose or scope of the waivers and there are good reasons to use categorical language because the particular entities or individuals involved may change over time.

Morrell v. Lippucci, 2022 BCSC 977 (CanLII)

The plaintiff commenced this action seeking damages for injuries suffered in 2016 when he was cycling and he was struck by a vehicle driven by the defendant. The plaintiff also suffered an injury while cycling in a triathlon in 2019. The court noted that the injury in 2019 interrelated with the “constellation of injuries” resulting from the 2016 accident. The plaintiff signed a waiver and release in connection with his participation in the triathlon. It precluded an action against the organizer of the event and provided for the organizer to be indemnified against any claims a third party might have against it for property damage or personal injury caused by the plaintiff’s participation. In another clause of the waiver and release, the plaintiff waived, released and discharged from any and all claims or liabilities for death, injury, property damage, theft or damages of any kind, which arose out of or related to his participation in, or my travelling to and from the event.” The court said that this clause was broad, in that it did not specifically identify who was being released and, as a result, it potentially could be applicable to the defendant. The defendant argued that, by virtue of the waiver and the plaintiff’s discontinuance of an action for damages caused by the 2019 incident, the plaintiff had waived his right to claim damages caused by the 2019 incident, which included compensation for the “constellation of injuries after January 1, 2019”. The court said that only in rare circumstances will a non-party to a waiver be able to benefit from it, citing Karroll v. Silver Star Mountain Resorts . According to Karroll, a non-party may rely on a release if it establishes that: (i) the release makes it clear that the non-party was intended to be protected by the provisions that limit liability; (ii), the release makes it clear that the releasee was contracting not only on its own behalf but also on behalf of its agents; (iii) the releasee had authority from the non-party to contract for a release of liability on its behalf; and (iv) the non-party gave consideration for the release. The court said that the defendant in this case was not able to establish these propositions. Therefore, the waiver had no effect on the plaintiff’s ability to recover damages from the defendant.

8.5.6 Parties Bound as Releasors Under Pre-Emptive Release

Case law dealing generally with the parties bound as releasors by the terms of a release is set out above in Chapter 6: Scope and Application of Releases, section 6.8, Parties Bound as Releasors. The decisions summarized in this section are concerned specifically with the parties bound as releasors by the terms of a pre-emptive release.

Paksa v. Ontario Gymnastics, 2019 ONSC 7019 (CanLII)

The wording of the waiver, or pre-emptive release, in this case was clearly focused on potential injury to a child participating in a gymnastics program. At the very least, it was ambiguous that the waiver would extend to the plaintiff, who was the mother of the child, and to an injury suffered by the plaintiff during the child’s gymnastics class. The ambiguity must be resolved against the defendant. The court noted that there was no requirement that a new waiver be signed whenever a different adult accompanied the child and concluded that the signing of the waiver on behalf of the child was ineffective to “prevent the claims of third parties”.

French v. Augusta Motorsports Park, 2021 ONSC 8385 (CanLII)

The plaintiff Randall French was admitted to a motorsports event at Augusta Motorsports Park. When he arrived at the park, he was presented with, and he signed, a release and waiver. He did not participate in any of the races at the event. He suffered serious injuries when a four-wheel drive vehicle he was riding in a sand pit – a restricted area – tipped backward and landed on him. The plaintiffs argued that the waiver applied to event participants and not to event spectators, but the court found that this submission did not withstand scrutiny. In signing the waiver, Randall agreed that “all applicable rules for participation must be followed, regardless of [his] role.” Randall provided a release from any loss, damage, or injury he might suffer “as a result of any use of or [his] presence” at the event facilities or his “participation in any part of, or [his] presence in any capacity” at the event. Randall signed the waiver to gain access to the park and to attend the event. He was driving his four-wheel drive vehicle when he was injured. He was, without question, present at the event “in any capacity.” The court found that the waiver encompassed Randall as an attendee of the event.

Stevens v. Oyster Bed, 2022 PESC 25 (CanLII) , appeal on other grounds dismissed, 2023 PECA 7 (CanLII)

A participant in a stock car race died after being involved in an accident. The surviving spouse of the deceased and personal representative of his estate sought damages for the dependants and beneficiaries of the deceased pursuant to the Fatal Accidents Act. The court held that waivers and release documents signed by the deceased did not bar the dependants’ claim against the defendants. The court referred to Donovan v. Queens County Residential Services Inc., 2016 PECA 1, where, the court said, it was determined that the Fatal Accidents Act creates an independent cause of action for dependants (with an acknowledgement that this determination makes the “situation” in Prince Edward Island unique). The conclusion in Donovan was that the court has jurisdiction to hear a claim by dependants of a deceased person for damages for “wrongful death” notwithstanding that the deceased person would not have had such a right of action in life. Therefore, even if the court were to conclude in this case that the waivers and release documents applicable to the deceased would preclude the deceased from advancing a claim against the defendants (a finding the court was not required to make and was not making), the waivers did not have a similar effect in relation to the dependants’ claim. Rather, notwithstanding the waivers and release documents, the dependants had an independent or separate cause of action and the dependants’ cause of action was not derivative – that is, the dependants’ claim was not dependent upon the validity of the deceased’s cause of action.

8.5.7 Exclusion of Liability for Negligence

There are many cases in which Canadian courts have considered whether the wording of a pre-emptive release is effective in excluding liability for negligence of the releasee.

Some decisions indicate that there must be specific reference to negligence in order for a pre-emptive release to encompass negligence. But there are decisions which indicate that the use of the word negligence is not necessary if other words make clear the intention that negligence is within the scope of the release. And, in some cases, Canadian courts have indicated that the use of the word negligence is not enough and that something more is needed, at least by way of context for a reference to negligence in a pre-emptive release. Thus, the outcome of any particular case is best understood in light of the circumstances of that case. Factors that drive different decisions include whether an exclusion of liability for negligence would have been within the reasonable expectations of the parties to the release and whether the words of the release make clear an intention to exclude liability for negligence, even when not actually using the word negligence.

Swanson et al v. Hanneson et al; Sterna et al v. Henkel Enterprises Ltd. et al (1972), 26 D.L.R (3d) 201 (Man. Q.B.) affirmed on appeal 1973 CanLII 1062 (MB CA)

Actions were commenced by the administrators of the estates of two people who were killed in the pit area of a stock-car speedway when a car went out of control prior to a race. The company that owned and operated the speedway relied on a release signed by each of the two deceased persons. The court at first instance held that the release did not in clear terms exclude the liability of the company for negligence and was “ineffective against both parties”. The Court of Appeal said that it agreed with the trial Judge that the form of release was “too broad in its scope” and certainly did not absolve the company from at least sharing responsibility for the damage.

Lyster v. Fortress Mountain Resorts Ltd., 1978 CanLII 688 (AB QB)

There was nothing in the assumption of risk wording on a ski tow ticket that exempted the ski resort from the consequences of the negligence of its own employees and any doubt as to the wording being wide enough to cover such negligence must be resolved against the resort.

J.L. Coulter Ltd. v. Spycher Estate, 1982 ABCA 239 (CanLII)

The finding of the trial judge in this case that, in effect, the appellant failed to disprove negligence was not challenged on appeal. The Court of Appeal said that, to be valid, a release relied on by the appellant must contain words which, expressly or by necessary implication, conferred an exemption for negligence. This, the court said, had been the law for many years. The words of the release did not purport to cover negligence on the part of the appellant. It did not use the words “however caused” or “from whatever cause arising”. The release was not adequate to relieve against liability for negligence because the wording was not sufficiently broad.

Cavell Developments Ltd. v. Royal Bank of Canada, 1991 CanLII 749 (BC CA)

Throughout the cases that deal with limitations on liability or exclusions of liability, there runs the concern that a party who signs a contract of adhesion should not be considered to have released any claims against the party who prepared the contract based on that party’s own negligence unless the party who adhered to the contract could have clearly seen, by reading the contract, that the party who drew the contract was absolving himself or herself from any duty of care or was limiting in some way the consequences of any breach of his or her duty of care.

Llewellyn v. MacSwain, 1993 CanLII 2914 (PE SCTD)

The plaintiff claimed damages from the defendant as a result of injuries she suffered while taking a trail ride on the defendant’s horse. The document signed by the plaintiff before starting the trail ride was not introduced in evidence, but the defendant provided the standard form that was in use at the time of the plaintiff’s ride. This document said that a signatory to it released the defendant from all actions and claims arising from participation in trail rides. The court noted that the document did not specifically refer to negligence and quoted from the Manitoba Court of Appeal decision in Dyck v. Manitoba Snowmobile Association the proposition that a general release will be confined in its application to a loss occurring through causes other than negligence unless liability with respect to negligence is specifically excluded in clear terms. Given that there was no reference to negligence in the “purported waiver”, the court found that, even if the plaintiff had signed this type of waiver, she did not intend it to cover negligence of the defendant.

Downs v. Georgian College, 2008 CanLII 63205 (ON SC)

The plaintiff sought damages arising from injuries he suffered while proceeding through an obstacle course as part of fitness testing for a paramedic program. The defendant relied on two waivers signed by the plaintiff in support of a motion for summary judgment dismissing the plaintiff’s claim. The motion judge said that the release and waiver was predicated on the fact of a properly set up and maintained obstacle course and that factual determinations relating to such issues could only be resolved by a trial judge. The motion judge concluded that there was a genuine issue for trial as to whether the release and waiver captured the negligence complained of by the plaintiff in the setting up and maintenance of the obstacle course.

Van Hooydonk v. Jonker, 2009 ABQB 8 (CanLII)

The inclusion of the word “negligence” in a release is generally all that is required to ensure that the release or waiver covers the defendant’s negligence. The finding in Ochoa that the word negligence on its own is not enough to cover acts of negligence by the defendants is exceptional. A release does not need to mention specific acts of negligence in order to be valid. In this case, the release signed by the plaintiff covered the defendants’ negligence even on a strict construction.

Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385 (CanLII)

A release from “any causes of action whatsoever” has usually been considered to be broad enough to constitute a general release of claims in negligence.

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

The plaintiff signed a release/waiver before participating in a motorcycle riding course. The defendants admitted that motorcycle riding has risks and can be dangerous and the court said that the clearest language is therefore required if the defendants wish to absolve themselves of liability for their own negligence.

MHR Board Game Design Inc. v. Canadian Broadcasting Corporation, 2013 ONSC 4457 (CanLII), appeal dismissed, 2013 ONCA 728 (Can LII), leave to appeal refused, 2014 CanLII 25874 (SCC)

In this case, the motion judge on a motion for summary judgment did not accept the plaintiff’s submission that the failure to use specifically the word “negligence” in an exclusion of liability clause allowed the plaintiff to advance a claim framed in negligence. The broad language of the consent and release was clearly intended to cover all causes of action and it would be robbed of its effect if it did not cover negligence.

Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII)

The plaintiff signed a release and waiver in connection with her participation in a continuing education course for physiotherapists. Given the circumstances surrounding the signing of the waiver, a clause excluding liability for negligence would run contrary to the normal and reasonable expectations of the course participants. The release and waiver signed by the plaintiff was not sufficiently clear or specific such that it necessarily encompassed negligence. Applying the principle of contra proferentem, the ambiguity should be resolved against the drafters of the release and in favour of the plaintiff.

Kempf v. Nguyen, 2013 ONSC 1977 (CanLII) , appeal allowed on other grounds, 2015 ONCA 114 (CanLII)

If a party is seeking to rely on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered.

Pêcheries Guy Laflamme Inc. v. Capitaines propriétaires de la Gaspésie (A.C.P.G) Inc., 2015 FCA 78 (CanLII)

The Federal Court of Appeal considered a clause of a boat handling contract which stated that the owner of the vessel took responsibility for any risk resulting from the towage, docking, operating, wintering and/or launching of the vessel and released the owner of a slip dock from any “civil liability” resulting from these associated operations or handling. The appellants argued, among other things, that this clause “could not cover negligence with respect to the circumstances of this case”. The court said that, when a party has no civil liability in the absence of negligence, as in this case, the phrase “civil liability” is clearly synonymous with negligence. There was no ambiguity in the clause at issue that permitted the application of the contra proferentem rule. The clause was as clear as if the word “negligence” appeared in it. When interpreting a clause that excludes or limits liability in a case involving allegations of negligence, the three-pronged approach set out in Canada Steamship Lines Ltd. v. The King, 1952 CanLII 260 (UK JCPC) is a guide rather than a decisive test requiring a pre-determined result.

Trimmeliti v. Blue Mountain Resorts Limited, 2015 ONSC 2301 (CanLII)

In this case, the court said that the release and waiver terms set forth in a document signed by the plaintiff were of the sort that most people fully expect at ski resorts. If a resort is seeking a waiver of liability, it is necessarily seeking a waiver of matters which, but for the waiver, might be the responsibility of the resort. At the very least, the concept of a waiver would bring to the ordinary customer’s mind a waiver of claims of negligence attributed to the operator of the resort. This is what an ordinary customer would expect to find in the “fine print” of such a document and exactly what was in the document signed by the plaintiff.

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

In order to cover the negligent conduct of the defendant, courts have held that a waiver must specifically state that it covers negligence. However, courts have also held that it is not necessary to use the word “negligence” if the waiver is otherwise clear that it covers negligence. The plaintiff argued that it was necessary for the defendant to refer explicitly to the duty of care under the Ontario Occupiers’ Liability Act for a waiver to be valid regarding claims under that statute. However, by expressly excluding liability for negligence, the defendant expressly excluded the duty of care owed under the statute.

Arif v. Li, 2016 ONSC 4579 (CanLII)

As to whether a release signed by the plaintiff precluded a claim for damages caused by gross negligence, the court said it was not persuaded that gross negligence is a separate cause of action from negligence but, in any event, gross negligence was covered given that it comes within the scope of the phrase “all manner of action, causes of action, suits, claims or demands of whatsoever nature or kind”.

Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 (CanLII)

The exclusion, release and waiver of liability wording on a day ticket for a ski area excluded all risk of personal injury resulting from any cause whatsoever. According to the wording of the ticket, “any cause whatsoever” specifically included, but was not limited to, negligence.

Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10 (CanLII)

In this case, while an e-waiver did not include the word negligence, it was clear that the intent of the document was to release the defendant from liability for all claims or liabilities arising from the plaintiff’s participation in go-kart racing, which includes claims that may be based on negligence.

Peters v. Soares, 2019 BCSC 189 (CanLII)

Waivers that do not specifically absolve a party of negligence have, in some circumstances, been held not to bar claims brought in negligence. Such a determination requires consideration of the language of the clause and the contract as a whole. Failure to use the word negligence may still bar a claim in negligence if all the words of the clause, considered collectively, clearly convey the concept that the waiver prohibits a claim against the party tendering it for that party’s negligence. There are no “magic words”: whether a clause needs to use the word “negligence” depends on the content of the contract as a whole and the context in which the contract was entered into.

Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)

The appellant in this case suffered a catastrophic injury while snowboarding at the respondent’s “terrain park”. In defence of the appellant’s claim, the respondent relied on an exclusion of liability notice that was printed on a sign above the ticket booth where the appellant purchased his ticket, and also on the back of the ticket he received after payment, together with warnings posted on signs at the terrain park. The Court of Appeal considered whether reasonable notice had been given to the appellant of the terms of the exclusion of liability. Issues regarding reasonable notice fell to be considered in two legal contexts: the law of contract and the Occupiers Liability Act. Under section 4 of the OLA, an occupier must take reasonable steps to bring a modification or exclusion of the occupier’s statutory duty of care to the attention of a patron using the occupier’s premises. The mere fact of providing a ticket on which there was printing was insufficient to put the claimant on the necessary notice. Just how much is required in order to be “reasonably sufficient to give the plaintiff notice of the condition” (referring to Parker v South Eastern Rail Co. (1877), 2 CPD 416) will depend upon the nature of the restrictive condition. The more onerous the condition, the more rigorous will be the requirement for what constitutes reasonable notice. Among the more onerous of conditions is the own negligence clause. This is particularly so in the field of sports activities where consumers might well expect a service provider to exclude liability for injury or loss arising from the inherent risks of the activity, but would be taken aback by an exclusion of liability for that provider’s own carelessness.

Nelson v British Columbia (Environment), 2020 BCSC 479 (CanLII)

The plaintiff signed a waiver pursuant to which he released the Province of British Columbia from all claims for injury or damage caused by flooding, erosion, or a similar cause. The plaintiff argued that this waiver was inoperative in respect of his common law claims in negligence and nuisance. He relied on the Canada Steamship Lines decision, above, and submitted that the test articulated in that case was adopted in ITO-Int’l Terminal Operators v. Miida Electronics, 1986 CanLII 91 (SCC). The Court in ITO held that the CSS test had been clarified in a decision of the English Court of Appeal where May L.J. said that, although the approach articulated in CSS was described as a test, that is inaccurate because it was “only intended to be guidelines …, and at the end of the day the duty of the Court is just to construe the relevant clause”. The plaintiff submitted that CSS set out the guiding framework in addressing whether a clause waives a negligence claim. The court disagreed with this submission, to the extent that the plaintiff was by implication saying that the Tercon approach was not the appropriate analytical framework. However, that was not to say that CSS and ITO were inapplicable, as it did not appear that ITO had been overturned. The words of the covenant signed by the plaintiff were clear and unambiguous and protected the Province from “all manner of suits, causes of action”; even under the CSS analysis, it was clear that the waiver applied to claims in negligence. The waiver was effective to defeat the plaintiff’s claims in negligence and nuisance.

Arksey v Sky Zone Toronto, 2021 ONSC 4594 (CanLII)

On a motion for summary judgment based entirely on the terms of a waiver and release of liability signed by the plaintiff, the court said the use of the word “negligence” on its own is often insufficient to find that the plaintiff has waived all possible forms of negligently caused injury. The words must be construed to determine if the parties can reasonably be said to have agreed on the exclusion of liability in the context of the case at hand. The court quoted a passage from Ochoa v. Canadian Mountain Holidays , where, among other things, it was said that any waiver seeking to cover negligent conduct must surely contain something more than the word negligence. That something more would include, at the least, a context for the word negligence describing the kind of conduct amounting to negligence which is intended to be covered. The quotation from Ochoa concluded with a finding that alleged negligence was covered by a waiver and, immediately after the quotation from Ochoa, the court said this was “the very circumstance that existed in this case”.

8.5.7.1 Claims Within an Exclusion of Liability for Negligence

The decisions in the section above deal with whether the wording of a pre-emptive release is effective in excluding liability for negligence of the releasee. The decisions below deal with whether particular claims are within the scope of an exclusion of liability for negligence.

Wood Buffalo Housing & Development Corporation v. Flett, 2014 ABQB 537 (CanLII)

The plaintiff claimed damages in relation to the design and construction of a building and the defendants moved for summary judgment on the basis of a provision of the design-build contract in which the owner had agreed to a waiver and release of claims, other than those falling within certain specified exceptions. On the motion for summary judgment, the court found that the question of whether “negligence” extended to negligent misrepresentation in the certificate of substantial completion was a genuine issue for trial.

Jensen v. Fit City Health Centre Inc., 2015 ONSC 6326 (CanLII)

The plaintiff argued that it was necessary for the defendant to refer explicitly to the duty of care under the Ontario Occupiers’ Liability Act for a waiver to be valid regarding claims under that statute. The court said, however, that, by expressly excluding liability for negligence, the defendant expressly excluded the duty of care owed under the statute.

8.5.8 Exclusion of Liability for Intentional Wrongdoing

A “general judicial reluctance” to enforce a clause that releases liability for intentional wrongdoing was noted in an article on the contractual principle of good faith: see Shannon O’Byrne and Ronnie Cohen, The Contractual Principle of Good Faith and the Duty of Honesty in Bhasin v. Hryniw, Alberta Law Review, (2015) Vol. 53., No. 1, at page 33. The authors of the article recognize, though, that there are exceptions to this reluctance. Their point is that conduct that might otherwise be seen as bad faith performance “can be effectively reframed as going to a risk that the parties addressed and allocated in the … contract”. An example cited is the decision in Klapper v. Graziano 970 NYS (2d) 355 (Sup Ct 2013). In this decision, a claim for defamation arising from the plaintiff’s appearance on a show called Mob Wives was dismissed on the basis of a release signed by the plaintiff. The authors of the article say that agreeing to be defamed is akin to agreeing to allow the other contracting party to be dishonest, yet “freedom of contract can still prevail”.

MHR Board Game Design Inc. v. Canadian Broadcasting Corporation, 2013 ONSC 4457 (CanLII), appeal dismissed, 2013 ONCA 728 (Can LII), leave to appeal refused, 2014 CanLII 25874 (SCC)

The appellant signed a comprehensive release before appearing on a television show to present a business proposal. He alleged that his proposal was edited in such a fashion as to misrepresent completely the merits of the business plan. His action was dismissed on a motion for summary judgment. The motion judge said that the consent and release was, by its express terms, an absolute defence to an action for defamation or “injurious falsehood”.

8.5.9 Factual Context

In the case below, the scope of a pre-emptive release was considered in the context of promises made by the releasees at the time when the release was signed.

Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC)

A party cannot make promises and then attempt to withdraw those promises in a release unless it is done in clear and unambiguous language. Where the defendants had promised a safe environment, it would be unfair and unreasonable to give effect to a waiver and thereby exonerate the defendants from responsibility as a result of their failure to live up to the very promises given at the time of signing the waiver.

8.5.9.1 Modification of Terms of Contract

The decision below indicates that a pre-emptive release may be modified when, after the signing of the release, the parties add a stipulation that alters the scope of the circumstances to which it will apply.

Airmotive Industries Ltd. v. Petersen, 1982 ABCA 136 (CanLII)

The principal officer of the plaintiff, Real Caouette, engaged the respondent to give him instruction in the operation of a twin-engine aircraft. He signed a release or waiver saving the respondent harmless Petersen from “loss, damage or expense to the said aircraft while being used”. After Caouette told the respondent that he did not want any more sudden engine cutoff, the respondent cut the left engine prior to take-off, the plane veered off the runway and the plane was damaged. The Court of Appeal said that clearly the waiver would protect the respondent from ordinary negligence anticipated at the time of its execution. The parties were free to modify their earlier agreement and they did so by Caouette’s stipulation that the respondent refrain from further one-engine manoeuvres. The accident was a direct consequence of the breach of that stipulation and the waiver did not apply. The accident and consequent damage arose in a manner beyond the contemplation of the parties at the time when the waiver was signed.

8.5.10 Public Policy

The decision of Binnie J. in Tercon, above, regarding the public policy branch of the test for determining the enforceability of an exclusion clause or release of liability was discussed at some length by the majority of the British Columbia Court of Appeal in Niedermeyer v. Charlton, 2014 BCCA 165 (CanLII) , at paragraphs 74 to 80, application for leave to appeal dismissed, William Charlton, et al. v. Karen Niedermeyer, 2014 CanLII 68709 (SCC) . The majority noted that, although Binnie J. dissented in the result, the Supreme Court was unanimous in Tercon on the correct approach to an exclusion clause, including on the question of public policy. The majority of the court acknowledged that Binnie J. had made clear why public policy interests are not closed to judicial consideration when courts are asked to determine the enforceability of a contract. That said, though, Binnie J. continued to endorse significant judicial restraint when invoking public policy as justification for interfering with a contract freely entered into by competent adults (Niedermeyer, paragraph 76). He recognized that, given the importance of the certainty and stability of contractual relations, only where harm to the public is “substantially incontestable” will the court use its residual power to decline to enforce a contract (Niedermeyer, paragraph 77). The discussion of public policy in Tercon tends to focus on the conduct of the party who seeks to rely on an exclusion clause. But it is important to note that there is nothing in Tercon that limits the consideration of public policy to the conduct of the party relying on the exclusion (Niedermeyer, paragraph 79). What Tercon requires is that a plaintiff seeking to avoid the effect of an exclusion clause identifies the public interest that is said to outweigh enforcement of the contract freely entered into (Niedermeyer, paragraph 80).

The cases in this section deal with public policy issues bearing on the scope of pre-emptive releases.

Pelechytik v. Snow Valley Ski Club, 2005 ABQB 532 (CanLII)

On an application for summary judgment, the plaintiff argued that the phrase “the use of ski lifts” in a pre-emptive release could not be construed to exclude liability for mechanical breakdown or faulty, defective or improperly maintained or operated lift equipment. He also argued that, even if the pre-emptive release did encompass categories of negligence, it would be contrary to public policy to allow such an exclusion to stand. The Master held that, since this was a novel argument in Canada, the argument should be allowed to proceed to trial: while the chance of success might be small, failure was not inevitable.

Leonard v. Dunn, 2006 CanLII 33419 (ON SC)

The plaintiff signed a “game sheet” containing a waiver/release as a condition of playing recreational, non-contact hockey in the sports facility where the game occurred. The court found that an unprovoked battery unrelated to the advancement of the game was not within the reasonable expectations of an adult recreational hockey player playing in this non-contact league. The court said that the waiver, properly construed, did not and “ought not, on public policy grounds, extend to unprovoked attacks by one player on another”.

Dennis v. Ontario Lottery and Gaming Corporation, 2010 ONSC 1332, appeal dismissed 2011 ONSC 7024, further appeal dismissed, 2013 ONCA 501 (CanLII), application for leave to appeal dismissed, Peter Aubrey Dennis, et al. v. Ontario Lottery and Gaming Corporation, 2014 CanLII 5980 (SCC)

The plaintiffs moved for certification of a class action on behalf of a class of people who signed “self-exclusion” forms provided by the Ontario Lottery and Gaming Corporation that included a release. In the self-exclusion form, OLGC undertook to use its “best efforts” to deny signatories entry to its facilities, but excluded liability if it failed to do so. In Tercon, Binnie J. discussed the role of public policy in determining when a court should exercise its “narrow” public policy jurisdiction to give relief against an exclusion of liability clause. He referred to cases where criminal or fraudulent conduct would justify a finding that reliance on an exclusion clause is not to be countenanced and he emphasized that less egregious conduct could require the same conclusion. The enquiry into public policy considerations in this case would require a consideration of a number of factors and the interplay between these considerations required a full evidential record before a reasoned determination could be made.

Deanna Loychuk et al v. Cougar Mountain Adventures Ltd., 2012 BCCA 122 (CanLII), application for leave to appeal dismissed 2012 CanLII 56135 (SCC)

The appellants argued that a pre-emptive release is contrary to public policy when relied on in respect of an activity (zip-lining) that is totally within the control of the operator and cited two law reform commission reports in support of this argument. The court said that the law reform commission recommendations did not establish an overriding public policy that justifies nullification of an agreement knowingly and voluntarily entered into by a person wishing to engage in an inherently risky recreational activity. If there are policy reasons why such releases should not be enforceable when an activity is totally within the control of an operator, then any change in the law is properly a matter for the Legislature. But if the operator either knew it was putting the public in danger by providing a substandard product or service or was reckless as to whether it was doing so, then that party would have engaged in conduct so reprehensible it would be contrary to public policy to allow the operator to avoid liability.

Niedermeyer v. Charlton, 2014 BCCA 165 (CanLII) , application for leave to appeal dismissed, William Charlton, et al. v. Karen Niedermeyer, 2014 CanLII 68709 (SCC)

The appellant wished to participate in a zip-line experience and she signed a pre-emptive release that expressly covered, among other things “travel to and from the tour areas”. She was injured when the bus in which she was travelling as she returned from the zip line activity went off the road. Given the intention of the B.C. Legislature in enacting a statutory scheme of compulsory universal insurance coverage for damages for personal injury arising from motor vehicle accidents, it would be contrary to public policy to permit the respondents to enforce the release of liability of a claim that arose not from an injury that occurred in the course of the zip-line activity, but rather in the course of transportation to or from the site of that activity.

Arif v. Li, 2016 ONSC 4579 (CanLII)

The plaintiff argued that, if businesses are allowed to seek a waiver of liability for actions beyond just negligence “and in turn gross negligence”, public policy is jeopardized. The court referred to the decision in Dyck where the Supreme Court of Canada rejected the submission that a release that protects a defendant from liability in negligence for damages arising from the dangers of a recreational activity undertaken by the plaintiff should not be enforced on public policy grounds. The court also referred to the recommendations of law reform commissions in Canada and agreed with the view expressed in Loychuk, above, that a change of the law on this issue is a matter for the Legislature and not the judiciary.

Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 (CanLII)

The plaintiffs submitted that there are strong public policy reasons for preventing a recreational operator from relying on a ticker waiver to avoid liability in circumstances where it actively created the hazard from which its guests were not properly protected. The court said that this was not a case where an overriding public policy (evidence of which was thin at best) outweighed the case in favour of enforcement of an exclusion of liability.

8.5.10.1 Medical Treatment

According to the decision below, a pre-emptive release in a consent to medical treatment cannot bar a claim in negligence by the patient who signed the consent, regardless of the wording of the release provision.

Rush v. De Ruiter, 2018 ONSC 1210 (CanLII)

The plaintiff’s position regarding a release included in a consent to medical treatment signed by her raised a serious public policy concern. If such a waiver of liability on consent were to be enforceable as a common practice in the medical profession, the waiver would take on a coercive quality that would negate the voluntariness that is at the heart of a consent. A risk to the patient’s health or even death might be the consequence of not signing, leaving a vulnerable patient with a choice between two precarious options which in effect is no choice at all. The consent cannot bar the plaintiff’s claim in negligence “no matter the careful drafting quality of the release”.

8.5.11 Other Issues

Other issues about the scope of pre-emptive releases are addressed in the decisions summarized below. In the first of these decisions, Isildar v. Rideau Diving Supply, a judge of the Ontario Superior Court of Justice has held that a pre-emptive release signed by a participant in an activity who died while engaging in the activity may operate to bar derivative claims under the Family Law Act by the participant’s family members.

Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON SC)

Derivative Family Law Act claims can be barred by a valid waiver of liability (pre-emptive release) signed by the principal plaintiff. A release signed by a participant in a scuba diving certification program, who drowned during a deep dive, purported to bind the participant’s family from making claims. The court found that the release operated as a bar to the plaintiffs’ derivative claims under the Ontario Family Law Act. The court referred to Coombs v. Flavell, 1988 CanLII 4796 (ON CA) for the proposition that derivative “Family Law Act type claims” are barred where the principal plaintiff is barred from recovery by contract.

French v. Augusta Motorsports Park, 2021 ONSC 8385 (CanLII)

The plaintiff Randall French was admitted to a motorsports event at Augusta Motorsports Park. When he arrived at the park, he was presented with, and he signed, a release and waiver. He did not participate in any of the races at the event. He suffered serious injuries when a four-wheel drive vehicle he was riding in a sand pit – a restricted area – tipped backward and landed on him. The plaintiffs argued that Augusta failed to follow its Guidelines for Waiver and Release in that, contrary to the Guidelines, gate personnel did not sign the waiver, gate personnel did not date the waiver, and that it was the practice of employees and volunteers of the event to pass clipboards into vehicles for patrons’ signatures. The court found that, in the circumstances before it, any deviation by Augusta from its Guidelines was immaterial. The plaintiffs also argued that the Waiver did not apply because the area in which the accident occurred – a sand pit – was not part of the “Event”. The court found, for a number of reasons, that the location where the accident occurred – the sand pit – was covered by the express terms of the waiver.

8.1 Introduction

8.2 Related Areas of Law

8.2.1 Volenti Non Fit Injuria/Voluntary Assumption of Risk

8.2.2 Occupiers’ Liability Legislation

8.3 Enforcement of Pre-Emptive Releases

8.3.1 General Validity and Enforceability of Pre-Emptive Releases

8.3.2 Analytical Approach

8.3.2.1 Tercon Analysis

8.3.2.2 Isildar Analysis

8.3.2.3 Analysis with Five Lines of Enquiry

8.3.3 Consideration

8.3.3.1 When Fresh Consideration is Required

8.3.4 Failure to Read Pre-Emptive Release

8.3.5 Expectations

8.3.6 Previous Experience with Releases or Waivers

8.3.7 Effectiveness of an Ambiguous Release

8.4 Communications Regarding a Pre-Emptive Release

8.4.1 Disclosure of Risks

8.4.2 Explanation of Terms or Legal Effect of a Release

8.4.3 Communication of the Terms of a Release

8.4.3.1 Post-Contract Notice

8.4.4 Representation Regarding Scope of Release

8.5 Scope of Pre-Emptive Release

8.5.1 Identification of Particular Risks

8.5.2 Unusual Risks

8.5.3 Expectation of a Safe Environment

8.5.4 Multiple Occasions of Participation in Activity or Event

8.5.5 Parties Protected by a Pre-Emptive Release

8.5.6 Parties Bound as Releasors Under Pre-Emptive Release

8.5.7 Exclusion of Liability for Negligence

8.5.7.1 Claims Within an Exclusion of Liability for Negligence

8.5.8 Exclusion of Liability for Intentional Wrongdoing

8.5.9 Factual Context

8.5.9.1 Modification of Terms of Contract

8.5.10 Public Policy

8.5.10.1 Medical Treatment

8.5.11 Other Issues

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