As parents, we’re frequently asked to sign waivers on behalf of our children. Whether it’s to participate in a field trip, organized sport, or recreational activity such as a trampoline park, we’ve come to expect such paperwork. In fact, waivers are so commonplace that many parents quickly skim over the legal jargon and don’t think twice before signing.
Unfortunately, children can be seriously injured while participating in sports, activities, and classes. If your child gets hurt after you’ve signed a liability waiver, are you and your child without legal recourse? The answer may surprise you. Read on for more—or better yet, reach out to our Oshawa and Lindsay law firm for a free case evaluation and personalized legal advice.
What is a Liability Waiver?
A liability waiver is a written legal contract intended to limit legal responsibility of one party (the participant) to another party (a business, sports facility, recreational facility, amusement park, ski resort, school board, etc.). Waivers and liability releases are typically presented as a precondition of participating in an activity.
Generally speaking, the effect is that the person signing the waiver agrees to give up his or her legal right to sue for financial compensation if they suffer personal injury or death while participating in the activity in question. Essentially, the person signing is being asked to acknowledge the potential risks and voluntarily assume personal responsibility in the event they suffer injury, loss, or damage.
Are Liability Waivers Enforceable Against Adults?
While this area of law is very complex, waivers are generally enforceable against adults. There are certainly exceptions, for example, a waiver may not be enforceable when:
· The adult was impaired by drugs or alcohol when the waiver was signed;
· The injury or loss doesn’t fall within the scope of the waiver; or
· The business or facility engaged in illegal activity, or the harm was caused by their gross negligence or intentional misconduct.
If an adult gets hurt and brings a personal injury lawsuit, the business or facility will ask the court to enforce the liability waiver and dismiss the case. Ontario law with respect to enforceability of liability waivers is constantly changing, so adult who has signed a waiver should not assume they are out of luck. Instead, they should consult with a lawyer experienced in personal injury and long term disability (Ajax, Lindsay, Oshawa and surrounding area residents can contact Kelly Greenway Bruce to arrange a free, no obligation case evaluation).
Are Liability Waivers Enforceable Against Children?
The situation is more complex when the participant is a child. For the purposes of this discussion, a child is anyone under the age of majority (18 in Ontario). The general rule is that minors don’t have the capacity to sign legal contracts, which means that a waiver signed by a minor would not be enforceable against that child.
For that reason, parents or guardians are commonly asked to sign waivers on behalf of minors. Given how commonplace that practice is, it may surprise you to learn that a waiver signed by a parent on behalf of a child may not be enforceable. Waivers and releases purporting to give up a child’s rights are viewed as being against public policy and not in the child’s best interests.
The law is somewhat unclear on this point and there’s very little legal authority from Ontario courts on the issue. There is a decision from British Columbia that offers some guidance. In Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385, a child was injured in a sparring match at a martial arts studio and brought a lawsuit. The court definitively stated that the studio was not allowed to rely on the tort waiver signed by the parent on behalf of the child.
Ontario courts have not taken the step of outright invalidating parental waivers, but there is a good support for the argument that such waivers should not be enforced against minors. The law is complex, and the outcome of a given case will always be highly fact specific. If your child has been severely injured but a waiver was signed on their behalf, the best course of action is to get advice from an injury lawyer as soon as possible.
Legal Help if Your Child has Suffered Fractures, Concussion or Spinal Injury
Ajax, Whitby, Lindsay, and Oshawa parents: You do not have to navigate the legal process on your own. If your child suffered an injury where a waiver was signed, contact an Oshawa injury lawyer at Kelly Greenway Bruce. The waiver may not prevent a lawsuit to recover much-needed compensation for your child’s injuries.
When you hire Kelly Greenway Bruce, our experienced lawyers and support staff maintain a personal relationship with you, taking time to answer all your questions. We work tirelessly to get fair compensation for our clients. Contact our dedicated team today for a free initial consultation.