Liability Waivers
Everyday we see numerous signs providing warnings such as "Not Responsible", "Use at Own Risk", and various other indications that rights are lost if we participate in certain activities.
Additionally, it seems that almost all purchase agreements, service contracts, application forms, and the like, contain some type of liability waiver to which we must agree if we want what someone else is selling.
Unfortunately, many members of the public believe these various forms of liability waiver are absolute and legally binding when in most circumstances a forced liability waiver will be unenforceable. Furthermore, a liability waiver, when genuinely agreed to, remains very limited and applicable only to those risks willing assumed Accordingly, a liability waiver should be inapplicable to risks that were beyond the reasonable contemplation of the (supposedly waiving) party when originally agreeing to the liability waiver. Simply put, a liability waiver is very limited in scope, if valid at all, and will be applied very cautiously by the courts.
The Supreme Court of Canada has said in the case of Saskatchewan River Bungalows v. Maritime Life, [1994] 2 S.C.R. 490 at 499 to 500:
Waiver occurs where one party to a contract or to proceedings takes steps which amount to foregoing reliance on some known right or defect in the performance of the other party: Mitchell and Jewell Ltd. v. Canadian Pacific Express Co., [1974] 3 W.W.R. 259 (Alta. S.C.A.D.); Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61 (waiver of a limitation period). The elements of waiver were described in Federal Business Development Bank v. Steinbock Development Corp. (1983), 42 A.R. 231 (C.A.), cited by both parties to the present appeal (Laycraft J.A. for the court, at p. 236):
The essentials of waiver are that full knowledge of the deficiency which might be relied upon and the unequivocal intention to relinquish the right to rely on it. That intention may be expressed in a formal legal document, it may be expressed in some informal fashion or it may be inferred from conduct. In whatever fashion the intention to relinquish the right is communicated; however, the conscious intention to do so is what must be ascertained.
Waiver will be found only where the evidence demonstrates that the party waiver had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. The creation of such a stringent test is justified since no consideration moves from the party in whose favour a waiver operates. An overly broad interpretation of waiver would undermine the requirement of contractual consideration.
When Is Acceptance of Risk?
Another legal consideration involves whether a risk is truly
an accepted risk rather than simply a known risk. Further,
legal considerations involve whether the knowledge or
awareness of a risk relates to a risk inherent in an activity, a
risk inherent in nature, or a risk created by human intervention.
Generally, even where a person received repeated warning of a risk and continued to voluntarily engage in an inherently dangerous activity, only the very inherent risk will likely be deemed waived. Corollary risks, especially those risks arising from the direct negligence of others, remains without being subject to the waiver.
(Continued on page 9)