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August 19, 2020

Waiving liability for COVID-19 exposure

With fall just around the corner, we are seeing the potential return of many sporting activities that were cancelled in March. Along with this comes unprecedented liability issues for organizations that run such activities.

COVID-19 has inspired organizations to re-examine their procedure for liability waivers, and to seek advice as to whether or not they should be re-written to include coverage for COVID-19.

The leading case on liability waivers generally in Manitoba continues to be Dyck v Manitoba Snowmobile Association, [1985] 1 SCR 589, [Dyck]. In Dyck, the plaintiff was injured during a snowmobile race when he swerved to avoid a race official that had negligently walked onto the track. The plaintiff brought an action in negligence. Prior to the race, the plaintiff had signed an entry form which contained a waiver of liability clause which excluded the organizer from all liability, including for negligence.

The court had to determine if the waiver protected the defendant from liability caused by the negligence of the race official. The trial judge found that the plaintiff had read and understood the clause prior to signing, and that as a result, the contract was a binding contractual waiver of liability which protected both the association and the race official. Resulting appeals were dismissed by the Manitoba Court of Appeal and unanimously by the Supreme Court of Canada (SCC). Speaking on waiver clauses, the SCC found that it is not unreasonable for organizations to seek to protect themselves from liability, and as the clause was not unconscionable, nor against public policy, the clause was enforceable.

Distilled from the case law, the following criteria must generally be met if a waiver of liability is to be enforceable:

  • The waiver must be worded clearly and without using overcomplicated language;
  • The waiver must be specifically drawn to the attention of the individual, and prior to that individual agreeing to participate;
  • The waiver must clearly inform the signor that they are waiving their right to all future claims against the organization;
  • The waiver must be specific and clearly apply to the circumstances of the incident; and
  • The individual must be free to accept the terms of the waiver.

When it comes to children’s activities, the law is less clear. It is a question whether or not any waiver of liability signed by a parent on behalf of their minor child is enforceable at law.

The Manitoba Law Reform Commission, in its 2009 publication titled Waivers of Liability for Sporting and Recreational Injuries stated that waiver agreements for sporting or recreational services are not likely enforceable against minors:

Waivers are commonly obtained from minors and their parents. They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful. The general rule is that a contract with a minor for necessary goods and services is enforceable by and against the minor. Waiver agreements and the underlying contract for sporting or recreational services are unlikely to be construed as necessary.

The above is premised on the principle that minors should not suffer as a result of an agreement signed by their parents. Unfortunately for organizers of such activities, there do not appear to have been any cases that have settled the law on this.

This issue was briefly considered in the New Brunswick Court of Queen’s Bench of Dewitt (Litigation Guardian of) v Strang, 2016 NBQB 28, after the 15-year-old plaintiff was injured in a motor cross accident. The plaintiff’s father had signed the waiver on behalf of the plaintiff, and the plaintiff brought an action against several organizations and individuals connected with the event. The defendants attempted to rely on the waiver of liability. On motion, the plaintiff tried to argue that the defendant’s reliance on that argument was frivolous, vexatious and constituted an abuse of process of the court. The court found that the defendant’s argument was not frivolous, vexatious or an abuse of process. However, the court declined to speak to the matter of minors and waivers of liability, instead briefly stating that the law is not resolved on whether or not a clearly worded waiver would be enforceable against a minor.

While some organizations have attempted to circumvent this issue by having parents sign indemnity agreements with parents, or providing acknowledgment of risk forms, it remains unclear if either of those would prevent exposure to liability.

COVID-19 WAIVERS

There is no clear answer as to how courts would treat a waiver excluding liability for an individual contracting COVID-19. Given this, organizations should be as careful and as thorough as possible when drafting a clause for limiting liability with respect to COVID-19 infection.

The following factors should be considered in drafting a clause dealing with COVID-19 liability waivers:

  • The clause should specifically mention COVID-19;
  • The clause should be clearly visible;
  • The waiver should be provided before the individual agrees to participate in the activity;
  • The signor should be informed to read the waiver carefully; and
  • The organization should draw the signor’s attention to specific clauses through document formatting including larger or brightly-coloured font and capital letters.

Further, there are several things that an organization may be able to do to further lower their risk of liability as it relates to COVID-19:

  • The organization should ensure they are compliant with government protocols, laws and mandates in place regarding COVID-19;
  • The organization should follow as many safety protocols with respect to COVID-19 as possible;
  • The organization should consider placing signs around their premises indicating the safety measures taken and the risks of attending; and
  • The organization should consider verbally warning participants of COVID-19 risks during participation.

In sum, there are no judicial authorities to assist in determining if a court would enforce a contractual waiver of liability for COVID-19 infections. However, the general legal rules of waivers suggest that there are ways an organization who runs sporting activities can try and ensure they are protected from liability for COVID-19 infections. Organizations should be careful to include specific clauses in their waivers dealing with COVID-19, and to draw a participant’s attention to the clause in some way. They should also ensure that they comply with all applicable safety guidelines.

It is unclear if any waiver of liability is enforceable against a minor when signed by them or a parent, as minors should not be prejudiced by such an agreement signed on their behalf by a guardian. Unfortunately for organizations of sporting activities, there is very little recent case law on this topic to assist. However, this does not mean that liability waivers for activities in which minors are participating are unimportant or that an organization shouldn’t take care in drafting such a waiver.

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Resource posted on August 19, 2020, with a report from Amelia Peterson.

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