Hergott: Eyes wide open warnings

Lawyer Paul Hergott discusses waivers in his latest column

If you choose to participate, eyes wide open about inherent risks, you have nobody but yourself to blame if you’re hurt.

But if someone else’s negligence causes you injury, they should be held accountable.

That’s the way our legal system works. Unless you sign a contract saying otherwise.

Those contracts are commonly known as “waivers”.

Waivers often include “eyes wide open” warnings. Those warnings are important. If unfamiliar with an activity, you might not be aware of some risks that are inherent in the activity. A list of inherent risks and dangers allows you to make an informed decision whether or not to participate.

You can also take special care to guard against those risks and dangers.

It is fair and reasonable to agree not to bring a lawsuit if you are hurt because of the inherent risks and dangers of an activity you are “eyes wide open” about.

The problem comes when the language of waivers goes further, requiring your agreement not to pursue your legal rights if someone else’s negligence causes you injury.

Are those types of waivers even legal? Are they worth the paper they’re printed on?

Yes. Just last year a lawsuit against Big White Ski Resort Limited was dismissed because of such a waiver, even though negligence had been proven (Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702).

You’re an adult who can make your own choice about whether or not to sign a waiver. Nobody has a gun to your head. But if you don’t agree with the terms of the waiver you can say goodbye to ever alpine skiing again.

Or participating in any other physical activities hosted by businesses.

But what about children? Are these clauses effective to prevent them from pursuing their rights as well?

This was squarely at issue in the case of Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385

The Defendant had applied to the court for dismissal of the injured young person’s negligence claims. They relied on a document signed by his mother which, in the words of the court, “…clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school.”

Fortunately for justice, British Columbia has a piece of legislation that specifically protects young people’s legal rights. It is called the Infants Act.

There are all sorts of nuances, but the punch line is that contracts entered into by an “infant” (a person under the age of 19) is not enforceable except in particular circumstances.

And a parent or guardian cannot bind a young person by signing on their behalf. In the words of Mr. Justice Willcock: “The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.”

But that’s not the end of the matter. Some waivers try to do an end run around the Infants Act.

Some waivers require the parent to agree that if their child pursues their valid legal rights against a business, the parent has to “indemnify” the business (pay back whatever the business has to pay).

Imagine that. Your child is injured as a result of negligence. But whatever compensation they recover must be paid by their parent!

The enforceability of this kind of clause has not been tested in British Columbia. An analogous case out of Ontario (Stevens v. Howitt, 1969 CanLii322) gives me hope, though, that a British Columbia court would not enforce such a clause.

That case involved the settlement of a lawsuit, which included the type of indemnity agreement I referred to. The judge’s conclusion in that case was as follows: “I would also refuse to give effect to the agreement on general principles. If the document is allowed to stand then it could be argued that an infant’s potential cause of action has effectively been destroyed. In most cases the parent is the next friend. There is always the possibility that facing the threat of indemnification the parent will not initiate the action, thereby precluding the infant from securing recovery for his injuries. Settlements of this type are, in my opinion, so contrary to the procedures set up in our Courts for the protection of infants that the document should be held to be unenforceable”

In my view, the law needs to change in British Columbia to make negligence waivers unenforceable, period, whether against an adult or a child. And to clarify that indemnity clauses like the one I referred to are unenforceable as well.

It is fair and reasonable that businesses be held accountable for negligence. And it makes for a safer society because a lack of accountability leads to a lack of care.

This is complex stuff! Some waivers are, indeed, iron clad. Others are not worth the paper they are printed on. Ensure you seek legal advice if you face a circumstance where a waiver might impact on your ability to pursue justice.

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