The promise and perils of waivers: What you need to understand

Waivers are ubiquitous in society. Go skiing, jump at a trampoline park or run a race and you will be asked to sign a waiver as a condition of participating. Many people breezily scan and sign it without understanding its contents, thinking that despite the admonition they are forfeiting the right to sue, they still can. The law is clear that, subject to some narrow exceptions, people who sign a contract are bound to it even if they have not read it. We confess we've never read our cellular plan contract.

The stakes are raised when instead of a contractual dispute concerning phone overage charges, the claim is about someone getting hurt while participating in a sport. The incident and resulting injury can occur in myriad places, including on a ski hill, a zipline or on a guided mountain climb.

In 2007, two people were hurt while zip lining at Cougar Mountain Adventures in Whistler. Because waivers were signed and despite the company's admitted negligence, both the B.C. Supreme Court and the B.C. Court of Appeal enforced the waiver.

The courts' decisions sparked an outcry from some consumer protection advocates who argued that waivers were unfair and unjust bargains to the exclusive benefit of businesses and that the decision effectively gave them a licence to kill. They argued that it shouldn't be too much to expect businesses and guides to exercise reasonable care in the running of their operations and to be accountable if they don't.

This is consistent with the Manitoba Law Reform Commission's Waivers of Liability for Sporting and Recreational Injuries report, which recommended the enactment of legislation to completely prohibit the use of waivers of liability for personal injury and death resulting from negligence in sporting and recreational activities.

Adventure operators and sport providers couldn't survive in this litigious climate without waivers.

This criticism, however, ignores the reality that adventure operators and sport providers couldn't survive in this litigious climate without waivers. While the criticism of the Cougar Mountain case was a bit hyperbolic, it served as a wake-up call that when properly prepared and presented, waivers will often be enforced by the courts. A study of B.C. adventure sport cases between 1980 and 2020 undertaken by one of the authors showed that courts enforced waivers about four out of five times.

This string of outcomes in favour of businesses hit a brick wall on April 18 when the B.C. Court of Appeal upheld a decision of the B.C. Supreme Court finding that a waiver signed by a client wasn't enforceable in a case where he fell and got injured while being guided on a mountain climb.

The particulars of the case are complicated and much was in dispute, but what the courts looked at was whether a waiver signed for a rock climbing trip earlier in the summer should also be applied to the mountain climb.

A lot hinged on the date of the signed waiver and whether the future climb was discussed at the time the waiver was signed.

The courts found that the client couldn't conceivably waive his rights for the later climb that wasn't talked about and whose risks were therefore unknown to him.

Neither court was asked to determine whether the guide was negligent or at fault, only if the waiver could be enforced. The case will head back to trial. This outcome will no doubt satisfy those who believe that the pendulum had swung too far in protecting adventure operators and sport providers. The zip lining and guided mountain climbing cases are a good reminder about the promise and perils of waivers: Commercial adventure and sport wouldn't exist as we know them without waivers, and if people wish to participate and doing so involves a waiver, then by signing it they can't sue if they get hurt.

The key message for businesses and guides who rely on waivers is to not only say what you mean and mean what you say, but also to clearly communicate your intentions in everything from emails to waivers. For clients, it's to read and understand the waiver you're signing, and if you don't like it then don't participate.