Today's Paralegal May 2014 | Page 9

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The law in this regard can be somewhat complex as various doctrines as well as statute laws may be applicable and therefore intertwined. A decision involving various factors was well stated in Van Staveren v. Coachlite Roller Gardens Inc., 2012 ONSC 5941 at 58 to 59 as:

[58] The evidence of the defendant is that there were signs posted in the premises which stated “Skate at your own risk”. Neither the plaintiff nor his wife had any recollection of seeing these signs. However, both acknowledged that falling is an inherent risk of roller skating. I accept this as a basic principle. Like many other activities in life, roller skating does have inherent risk. People who engage in these activities understand and accept those risks. However, I do not believe that this extends to an acceptance of risks caused by the negligence of the defendant in creating a hazardous condition on the skating floor.

[59] As noted by the Supreme Court of Canada in the Waldick decision, supra, the application of the volenti defence as set out in Section 4(1) of the Occupier’s Liability Act will not shield a defendant from liability unless there is clear evidence that the plaintiff was consenting to accept the legal risk and waive any legal rights that might arise from the negligence of the defendant. There was no evidence during this trial to support such a conclusion. I therefore conclude that the plaintiff did not accept the risk of a hazardous condition being created by the defendant on the skating floor, and Section 4(1) does not afford a defence to the defendant in this action.

Statutory Obligation (duty of care)

Furthermore, there may be a strict duty of care imposed by statutes, such as is found within the Occupier's Liability Act, R.S.O. 1990, c. O.2, wherein those with ownership or control of premises or the activities occurring upon premises, are subject to a reverse onus or near reverse onus, of having to demonstrate that an incident arose without the negligence of the party with ownership or control. As was decided by the court in the Van Staveren case above, the voluntary participation by Van Staveren in an inherently risky activity of which Van Staveren was warned was insufficient to waive liability against Coachlite when Coachlite negligently failed to maintain the premises.

Volenti Non Fit Injuria

The legal doctrine known in Latin as volenti non fit injuria (referred to simply as volenti) is a defence in negligence law and is therefore technically unrelated to contract law waiver of liability; however, the use of volenti as a defence to allegations of negligence liability often appears alongside the contractual 'waiver of liability' defence. The volenti defence is used when suggesting that the injured party voluntarily assumed the risk of injury where the risk of injury is inherent in the activity. As such, volenti as a general doctrine would generally apply to the risks inherent in a variety of activities such as the activity of roller skating outlined in the Van Staveren case above. Of course, as in Van Staveren above, where an additional 'unassumed' risk becomes involved, such as a wet floor due to an improperly maintained roof, successful use of the volenti defence may be difficult.

The bottom line is simply that if you have suffered injury or harm and someone tries to suggest that you waived your legal rights, call Scott McEachern, Licensed Paralegal. A full and complete waiver of liability rarely occurs! Get a quality opinion before giving up and simply accepting that your legal rights are lost.