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What is a Waiver?

Do you remember the last time you went skiing? Horse riding? Rock climbing? If the answer is yes, you likely also remember being asked to sign a “release” and/or “waiver.” Did the company tell you what it meant? Well, it should have. 

A release/waiver is a document common to companies that offer risky or dangerous activities. The purpose of them is to absolve the company of liability should someone get hurt.

These documents can be effective. However, the existence of one and the fact that it was signed doesn’t automatically protect the company should an injury occur.

Three precedent Canadian decisions discuss the operation of releases/waivers in the context of recreational activities such as skiing and horse riding: Schnarr v Blue Mountain Resorts LimitedCrocker v Sundance and Morgan v Sun Peaks Resorts

In each case, the plaintiff signed a waiver and was ultimately injured. 

The Court, in these cases, established three rules with respect to releases/waivers:

1. The release/waiver must be provided at the application stage (before the activity commences);

2. The waiver should include a comprehensive description of all risks or possible risks that a participant is likely to encounter (i.e. if the activity is skiing, colliding with other skiers should be included as a risk); and

3. The company should make sure the participant is aware of what they are signing. 

The third requirement is the most important. It’s not enough to simply hand someone a release/waiver and ask that it be signed. The company needs to take steps to ensure that the person knows they are forfeiting their right to sue if they are injured. 

If the company fails to comply with the requirements listed above, it can be held liable for injuries sustained by a participant despite the fact that a release/waiver was signed. 

If you or someone you know has been injured in a recreational event, speak to an experienced personal injury lawyer. You have rights and may be eligible for financial compensation.

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