Casual Legal: Legal waivers and minors
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
By Daina Young
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Municipalities sometimes require users of municipal facilities or participants in municipal activities to sign a liability waiver as a condition of using the facility or participating in the activity. A waiver is a type of legal document that a user or participant signs to waive their legal right to bring a claim against the municipality for damages if the user or participant is injured (or extreme cases, dies) because of their use of the facility or participation in the activity. Properly drafted waivers, which are administered according to best practices, can be valuable risk management tools.
Municipalities should be aware, however, that there are special considerations which apply to minors. Typically, when a user or participant is a minor, a parent or guardian is required to sign the waiver on the minor’s behalf because the minor does not have the legal authority required to enter into a binding legal contract of this nature. The issue is that contracts signed on behalf of minors are generally not enforceable against minors, which leaves municipalities exposed to possible liability in the event of a minor’s injury or death.
There are other steps that a municipality can consider taking to attempt to minimize the potential of a claim against the municipality or to protect itself from liability in the event a claim does arise. For example, a municipality could require a signed acknowledgment of risk and informed consent from a minor’s parent/guardian, or an indemnity agreement between the parent/guardian and the municipality, as a condition of the minor accessing a municipal facility or participating in the activity. These mechanisms may provide some degree of protection to the municipality, however, municipalities should be aware that the effectiveness of these types of documents has not been determined by Canadian courts and there is uncertainty as to what degree of protection, if any, they actually provide.
What does this mean for municipalities? This does not mean that municipalities should never allow minors to use municipal facilities or participate in municipal activities which are valuable community amenities. However, municipalities should carefully consider whether the facility or activity is suitable for minors and whether there are additional requirements or restrictions that should be imposed in order to ensure the safety of participants in the circumstances.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
