Cunning Law assists with drafting and reviewing Release of Liability Waivers.
These are also often referred to as:
Every business owner or entrepreneur should be using waivers as a part of their risk management strategy. If an accident occurs or if something goes wrong, a person who signed a liability waiver cannot pursue legal action or seek compensation for any resulting harm.
Waivers are important because unexpected situations happen all the time. Having this legal document in place is one of the best ways to manage the risks associated with running a business in case an incident occurs.
Releasor: The releasor is the person who signs the liability waiver, promising not to sue or take any legal action against the other party if they suffer injury, loss, or damages. Releasee: The releasee is the person or entity being absolved of legal responsibility for any possible injury, loss, or damages.
A description of the circumstances, context, or particular activity in which the liability waiver applies.
The date when the agreement takes effect.
The jurisdiction under which the agreement will be governed.
No, waivers are generally enforceable but not always. A court will consider the enforceability of a waiver on a case-by-case basis. We will discuss this more below.
No, there is a broad category of rights which the law prohibits from being waived. These include human rights legislation and other laws that are designed to protect individuals from larger or more powerful entities.
No, even if someone has signed a waiver, it does not absolve the business from liability in cases of gross negligence, intentional harm, or reckless behaviour. They do, however, provide a strong defense if a legal dispute occurs.
Not all waivers are created equal. If someone does try to sue you or your business, you want to make sure your liability waiver is airtight and actually enforceable in court. In determining the enforceability of a liability waiver, courts consider factors such as if the releasor fully understood the liability waiver before they signed it, if one party was taken advantage of, and if the liability waiver is too broad and general. This is why it is essential to use a professionally drafted liability waiver that is specific to your business.
The BC Supreme Court refused to enforce a liability waiver because it was placed on the back of a sign-up roster. The liability waiver looked like a roster rather than a liability waiver, and therefore was not binding.
In this case, a liability waiver was written in fine print on the back of a dense page. There was also no way the person could have read it. As a result, the Ontario Court of Appeal found it to be unenforceable.
This is the most common scenario. For example, a liability waiver may protect against claims for negligence but not for misconduct. This means that you can still be sued for misconduct. Courts will strictly look at the exact words of the waiver. If the words are ambiguous, the waiver will not be enforced.
If the exact name of the person or legal entity is not mentioned as a party, then they will not be able to rely on the liability waiver to protect them.
Courts respect freedom of contract but they also respect fairness and public policy. Therefore, when looking at whether or not a waiver should be enforced, a court will also sometimes consider two factors: unconscionability and public policy. Specifically, they will consider if a waiver was unconscionable at the time in which it was signed. To determine this, they see if there was an inequality of bargaining power or substantial unfairness involved.
If the waiver found to be unconscionable, then it will not be enforced. If it is not unconscionable, then the court will consider if it should still be found to be unenforceable because of overriding public policy reasons. This is a high bar to meet and generally will only be met in cases of outright criminality or egregious fraud.
It is also worth noting that a waiver does not necessarily release you from the duty to take reasonable care. Although a party can acknowledge the risks involved and agree to not sue you, you are still required to act reasonably and take necessary precautions to ensure safety.
There are several different types of release of liability waivers. Each type is tailored to a specific activity. Here are some examples:
Here are some examples of activities where a general release form may be presented.
One of the most important steps in drafting an effective waiver is to make sure that you clearly identify the potential hazards or liabilities associated with your business, activity, or event. It is paramount that the waiver actually cover situations that you could be liable for.
Take time to carefully assess the risks of your business. For example, if it involves recreational activities, then consider protecting against claims for personal injury and negligence. Another example is protecting against claims for monetary loss when dealing with high-risk investments. In other cases, you may wish to protect against the risk of property damage, loss of reputation, loss of opportunity, or pain and suffering, etc. An effective waiver is one which comprehensively covers situations such as accidents, injuries, or property damage that could result from participating in your event or services.
First, it is important to understand that you cannot force anyone to sign a legal document, including a release of liability. A release signed under duress or undue influence will not be enforceable in court. This means you would still be liable.
Second, if you are the person signing a waiver form, you must understand that you are legally acknowledging the potential risks involved and are voluntarily assuming the responsibility for any potential consequences. You will not be able to hold the other party liable.
If you are a business owner wishing to implement a waiver form, here are some best practices:
Present it before the individual agrees to participate This clause restricts an employee from recruiting or hiring employees or contractors away from the employer during or after their employment. The purpose is to prevent an employee from interfering in the employer’s relationship with other employees.
Be clear and transparent This clause restricts an employee from sharing any of their employer's confidential information during and after employment. A confidentiality clause protects a company’s information from being shared externally. These are particularly important when an employee has access to sensitive or proprietary information that is the exclusive property of the employer. It’s important that this clause states the confidentiality period and defines what constitutes confidential information.
Ensure it is properly drafted and updated This clause restricts an employee from competing for business with their employer. For example, it may restrict an employee from working for a competing business or individual. Non-compete clauses may be in effect during the employment period and/or for a certain period of time after leaving. This clause is not permitted in all provinces.
Using a lawyer-drafted waiver that is custom tailored to your specific business activities, location, and industry will help protect your business and limit your legal liability in the event that someone attempts to make civil claims against you in court.
Our team will also ensure that additional clauses are added that will maximize the level of protection that you can expect to receive.
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