Where there are fitness, recreation and sport activities there will be injuries. Unfortunately, where there are injuries there are often lawsuits. Sporting event organizers often require participants to sign waivers in an attempt to limit liability for injuries prior to participation.
Generally, Courts will give effect to a clearly worded release executed prior to enrolment in a recreational activity. There is no general requirement that a party tendering the document for signature ensure that the party signing the document reads and understands its terms unless a reasonable person in their circumstances should have known that the party signing was not consenting to those terms. The Court will give a plain and ordinary meaning to the words of the release but where there is ambiguity resolve it in favour of the party to whom the contract is proffered (see: Carroll v. Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R. (2d) 160 (S.C)).
Generally speaking, then, waivers are an effective method for sporting event organizers to limit their exposure to liability for injuries from participants.
However, particular concerns arise with respect to waivers in the context of infant participants (infants are defined as being under the age of majority). Often a parent or legal guardian signs a waiver purportedly on the infant’s behalf but since a waiver of rights is to the minor’s disadvantage the Courts have generally held that such waivers are not enforceable even when co-signed by the parent or guardian (see: Wong v. Lok’s Martial Arts Centre Inc., 2009 BSCSC 1385 (S.C.)).
In Waivers and Other Agreements (Centre for Sports and Law Edmonton, Alberta 1993) Corbett and Findlay write at p 19:
The person signing the waiver must have the authority to sign a legal contract: in most provinces this means being 18 years of age or older [19 in British Columbia]. Children cannot sign contracts, nor can they sign waivers. Parents or guardians cannot sign a contract or waiver for a child. This means that waivers, in the strict legal sense, are useless in situations involving children or youth.
It now appears any uncertainty surrounding infant waivers has been removed and any such waivers signed by parents or legal guardians are not effective to restrict an infant’s right to sue for injuries.
How then can sporting event organizers limit their exposure to potential liability in the context of infant participants? One possible solution is to have the infant’s parent or legal guardian execute an indemnification agreement agreeing to reimburse the sporting event organizer for any damages, legal fees or other costs incurred in defending a lawsuit brought against the sporting event originator. However, parental indemnification agreements have not been commented on by the Courts which creates uncertainty about their effectiveness in limiting liability. Further, it is likely that the indemnification, if upheld, would result in the sporting event organizer having to defend and payout an infant claim and then seek reimbursement from the indemnifying parent or legal guardian who may or may not have sufficient funds to indemnify.
Sporting event organizers should consider the potential exposure to liability when opening participation to infants in light of the limits of waivers of liability and the uncertainty of the effectiveness of parental indemnification agreements.
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