Blow struck against waivers?

The college moved for summary judgment to dismiss the claim because he had signed a waiver, but the court dismissed the motion after finding fault with the waiver.

Samuel Crowe, an associate with Ericksons LLP in Thunder Bay, Ont., who acted for the plaintiff, says that the decision should give those looking to get a case thrown out or get a claim dismissed through a waiver some pause.

“So much of it is going to boil down to what the actual language of the waiver was, and in this case, there was particular qualifying language that framed the operative portion of the waiver,” says Crowe.

The first part of the waiver had qualifying language about some of the risks that the signee would assume, and the second part contained the operative portion.

The defence counsel moved that negligence should have been read into the waiver and only the second portion of the waiver should have been acted on.

“It would have been a totally unreasonable proposition, and I’m glad that Justice Newton didn’t see it that way,” says Crowe.

“My hope is that the courts will continue to look at waivers in that fashion, and to look beyond what the actual waiver states and look at the intention of the parties.”

Crowe says that, during discoveries, his client’s testimony about what he thought he was signing had important implications on the motion itself.

“It’s hard to know how much precedent something like that would set,” says Crowe.

“I would certainly hope that it would continue to set the precedent that just because you sign a waiver it doesn’t mean that you can’t bring a lawsuit if something happens.”

Crowe emphasizes that while the facts of the case, the context and the content of the waiver were all important, he is encouraged by the court’s ruling, and he hopes that similar reasoning will be applied to waivers in future cases.

The ruling stated that the  “waiver concerned the risk of harm from health related issues and physical activity such as self-defence.

“It was not directed at liability for defective premises as under the Occupiers’ Liability Act, R.S.O. 1990, c. O-2,” said the ruling.

“Had the College wished to have students sign such a clear and precise waiver, the College could have required the students to do so, rather than having the instructor prepare his own document without authorization or direction.”

The ruling also stated therefore that “the language of the Consent Form is at least ambiguous.”

“Any ambiguity in the contract requires that the clause be interpreted against the College and in favour of the plaintiff,” said the ruling.

Edward Chadderton, a partner with Carroll Heyd Chown LLP in Barrie, Ont. who has another waiver case currently heading to the Ontario Court of Appeal, says that he found the decision interesting on some of the facts in the case.

“The waiver itself was drafted by the instructor and from my reading of the decision, the college didn’t even know about the waiver,” says Chadderton.

Chadderton noted that the parties were agreed upon which cases to use to interpret the waiver, but reasoning for the judge in not finding it a complete defence was more based upon how it was specifically drafted and what it was drafted to cover, as well as who it was drafted by, as opposed to an overreaching principle on waivers themselves.

“Good precedent and good law was followed in this case,” says Crowe.

“The court decided appropriately based on what previous precedent had set, and what I hope that means for the future is that the courts will continue to follow the precedent set, and this case is just one in the line of several where a wavier does not necessarily invalidate a claim.”

Douglas Treilhard, an associate with Buset & Partners LLP in Thunder Bay, who acted for the defendant in this case, says that it was emblematic of the jurisprudence on waivers.

Treilhard notes that the Supreme Court of Canada says that there aren’t supposed to be special standards for exclusion clauses, and that they should be interpreted according to the normal techniques for determining the intentions of the parties in accordance with the plain meaning of their words.

“When you look at lower court decisions where those principles have to be put into effect, it’s hard to avoid the conclusion that lower courts do in fact apply different standards to the interpretation of waivers and make it extraordinarily difficult for them to be enforced as against other types of contractual terms,” says Treilhard.

He says that as a litigator who represents defendants, he wonders whether this trend of lower court jurisprudence means that it may be better to put the matter to a jury in a trial rather than trying to dispose of it at summary judgment.

In a jury trial, a judge would have to explain the law according to the decision from the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, which would have the jury rely on the common-sense interpretation of the words on the page.

“I think that the dynamic could be quite different in that scenario,” says Treilhard.

“As a defence lawyer, I think that would bear further thought on the next waiver case that comes along.”

Crowe says that business owners will likely want to revisit the language in their waivers to be a little clearer about the risks that the person signing it would be assuming.

“If you have more restrictive waivers or waivers with more particular language, perhaps courts might be more receptive to things like that, but the case law on it is hit or miss about what kind of waivers are enforceable and what aren’t,” says Crowe.

Treilhard notes that while he doesn’t draft waivers, “this decision suggests that lawyers should be drafting them,” though that may lead to longer and more complex forms because they’re being written for a judge.

“The ironic consequence of that is that they are probably far less understandable to the parties using them in a particular transaction,” says Treilhard.