Casual Legal: Use of waivers
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made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.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 Jack Sorokin
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
With summer in full swing, Albertans are eager to enjoy all the activities our province has to offer while they still can.
Waivers are a good tool that companies, municipalities, and other service providers and property owners may use to manage the risk of litigation when someone is hurt on their property or while doing activities they oversee and deliver.
General considerations
For a waiver to be legal, it must alert the signatory to the nature of the document and its purpose, the language must be broad enough to cover all possible claims, the risks being assumed must be clear, and the waiver must be fair and align with public policy.
When a waiver is printed in bold, with capital letters, and coloured text, it should alert the signatory to the nature and purpose of the document, including the fact that they may be relinquishing their right to a claim. The other requirements of waivers tend to cause more concern for courts. For example, accepting “negligence” without elaborating on what that could mean in the circumstances may not adequately articulate the risks being assumed or be broad enough to capture all possible claims. Further, courts will be wary of power dynamics at play during the signing of the waiver or public policy concerns resulting from the enforcement of the waiver.
A specific consideration
A waiver of a statutory duty of care may not be enforceable unless reasonable steps are taken to bring such a waiver to the attention of the signatory and the statute allows for the waiver of one’s duty of care. One’s duty of care under the Occupier’s Liability Act (Alberta) may be waived, but other statutes, for example, one’s protections under the Consumer Protection Act (Alberta) cannot be waived.
Recent legal developments
A recent decision from the B.C. Court of Appeal, Mitchell v. Manson, 2024 BCCA 142 (“Mitchell”), demonstrates the importance of specifying the timeframe for the waiver. The plaintiff in Mitchell signed only one electronic waiver prior to participating in the first of several expeditions, which indicated the date of just the first trip. The B.C. Supreme Court found that the plaintiff had not waived his rights for the other expeditions later in the summer, including the trip on which he was hurt. This decision was upheld on appeal, despite the plaintiff having extensive trekking experience and being familiar with the customary practice of signing waivers in the industry.
The decision in Mitchell demonstrates the importance of drafting waivers to cover a broad timeframe. If there is any possibility that a signed waiver may only cover one activity, a waiver should be signed before every activity begins.
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.
