For those who are managing and implementing activity-based promotions, requiring participants to sign waivers or releases in order to manage the risks inherent in the activities is important. A recent decision of the Ontario Superior Court of Justice reiterates what you should be looking for and including in your waivers and releases.
The case of Levita v. Crew and True North Hockey Canada involved an incident in a non-contact hockey game in which Levita was checked into the boards and suffered severe injuries. He sued the other hockey player, Crew, as well as the hockey league, True North Hockey Canada for the damages he incurred.
Levita had signed a one-page waiver at the beginning of the season. It was passed around the locker room before the first game of the season and each player signed his name on the bottom of the sheet. No representative from the league was available to explain the terms of the waiver to the players.
The Plaintiff argued that the waiver was not explained to him. That was not sufficient in the judge’s view to dispose of the waiver’s effect. “If he was unclear about the waiver’s meaning, or felt he did not have sufficient time to read the waiver, it was open to him to take the necessary steps to satisfy himself that he understood the contents of the document before he signed it.” Based on the facts of this case, the judge ruled that Levita could not retrospectively void the waiver’s effect by arguing that he voluntarily signed something he did not understand or read.
As to the actual wording of the waiver, the Judge ruled the waiver was “unambiguous as to the risks associated with the play of hockey”. The waiver specifically listed the risks and dangers that were covered (e.g. The risks and hazards of ice hockey include, but are not limited to, injuries from: Collisions with the rink boards, hockey nets and ice; Being struck by hockey sticks and pucks; Physical contact with other participants, resulting in injuries to the eyes, teeth, face, head and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed). In the judge’s opinion, “the wording described the very claim that was being pursued”.
It appears there were two distinct steps in the Judge’s analysis: First, before even looking at the wording of the waiver, were there any factors that would lead him to void the waiver, regardless of its terms. In this case, the Judge would not allow Levita (who is a lawyer) to void the waiver because he voluntarily signed something he did not read or understand. The Judge noted that Levita understood the significance of signing a waiver document.
Next, was the waiver ambiguous, or did it specifically list the dangers and risks that were covered? The Judge’s assessment of the waiver is critical - make sure that you have really thought through and articulated the specific risks and dangers for the waiver that is being sought.
Remember, a waiver for participating in a house league hockey league may require a different description of the risks than a waiver for participating in sky-diving lessons or a waiver for participating in an all-expenses paid cruise to Alaska.