Are “waivers” in personal injury cases valid?

A legal waiver in general terms is an act or instance of waiving a right or claim. In the context of this brief article, a waiver is a document signed by a person in which they waive a right or claim and promise not to sue for negligence if injured while participating in an event. 
Waivers have been successfully used by persons and businesses to prevent having to pay damages in a personal injury law suit. Courts have upheld waivers when an injury victim alleges that another person was negligent. Generally, waivers can be used successfully and upheld by the court if the waiver is clearly worded, reasonable and unambiguous. 
It is important to know that in Ontario, generally, if a person signs a contract without reading it, they will likely still be held to the terms of the contract, including waivers in the contract; they are taken to have read it before signing. There are exceptions, for instance, if the person who signed the contract is able to establish that there was fraud, misrepresentation, or there was a very onerous term that a reasonable person would not expect to be in the contract.
It is also important to note the following: The Ontario Occupiers’ Liability Act (OLA) makes reference to waivers. 
Section 3(1) of the OLA provides as follows:
3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
3(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.
Subsection 3(3) provides that an occupier may exclude this duty:
3(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.
Section 5(3) provides that:
5(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.
In a recent 2015 Ontario case called Jensen v. Fit City Health Centre Inc., the Court outlined what is required in a waiver for it to be upheld. In order to effectively waive negligent acts, the waiver generally must:
  • be clearly worded;
  • be unambiguous;
  • not necessarily have been read by the person signing the waiver;
  • have been brought to the attention of the person signing the waiver; 
  • the waiver must cover the negligence alleged; and
  • the word "negligence" or specific reference to the Occupiers’ Liability Actg need not be specifically mentioned in the waiver.
So, next time you sign a waiver, think about its legal effects. You may be signing your rights away.
The content of this article is intended to provide general information only and is not intended nor should be accepted as legal advice. All cases are different and legal advice should always be sought about your specific circumstances.
Marc N. Quinn
Ottawa Injury Lawyer
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