Children & Accidents: Is Your Business Protected?

Is Your Business Protected?
Despite your best efforts as a business operator, accidents happen. There may be statutory requirements for your business to have insurance, but insurance has limitations and exclusions. Depending on the nature of your business, it may be appropriate to have clients sign a waiver or release of liability. This is generally accepted as a suitable defence to harms that arise from foreseeable risks, and may prevent the client from successfully recovering against you in negligence as well.
But what happens when your clients are minors? There are additional considerations involved when minors are asked to waive their right to recover in tort.
Waivers
A waiver is based in the doctrine of volenti non fit injuria, which means “to a willing person, injury is not done”. At its heart, a waiver is a contract that asks participants to voluntarily assume specific legal risks and waive, or give up, certain legal rights.
In order for a waiver to be enforceable, it is generally accepted that three questions must be answered in the affirmative, they are: did the plaintiff (participant) know what they were signing? Is the scope of the waiver broad enough to cover the conduct of the defendant (business operator)? And third, should the waiver be enforced?

1. Did the plaintiff know what they were signing? The plaintiff must have full knowledge of the fact that the waiver was meant to exempt the party (business operator) asking for the waiver from all liability as a result of the activity and any negligence (Dyck v Manitoba Snowmobile). The specific provisions must be brought to the attention of the participant signing the waiver[1] before they sign it.[2]
2. Is the scope of the waiver broad enough to cover the conduct of the defendant? The language of the waiver must encompass the specific activity that the plaintiff was engaged in.
3. Should the waiver be enforced? An unconscionable waiver will not be. Unconscionability is determined by review the bargaining power between the contracting parties. If there is disparate bargaining power, the waiver will be presumed unconscionable.[3] The presumption must be disproved by the stronger party.

A waiver, or release of liability, is a powerful tool that can serve to protect a party from liability. As such, proper drafting must occur in order to ensure that a waiver will be deemed enforceable by the courts.
Waivers given by or on behalf of a minor
It is understood in the common law that a contract that is detrimental to the interest of a minor is voidable by the minor. A waiver of liability, or any document preventing an individual from recovery in tort, is certainly detrimental to that interests, and therefore if it is signed by a minor, it would be unenforceable. A waiver signed by a minor is contrary to that minor’s interests and therefore not binding.[4] The perceived solution to this, would be to have the minor’s parent or legal guardian sign on their behalf. It is accepted that a guardian has the “plenitude of parental power”.[5] Which gives the parent or guardian the power to contract and bind their child. Further, It was implicit in the judgment of Toews v Weisner[6] that consent to a vaccination must be obtained from the legal guardian and specifically not the child (although in this particular case, the parent did not consent rendering the question moot). However, this interpretation has been challenged recently. In Wong v Lok’s Martial Arts Centre Inc[7] the court was asked to determine the validity of a waiver signed by a minor’s parent. The teenage plaintiff was injured during a sparring match at the defendant’s studio. The defendant was relying on the waiver as an absolute bar to recovery. The court held that the waiver was unenforceable, but ultimately relied on British Columbia’s Infants Act.[8]
The issue of whether or not a parent has the ability to waive a child’s right to sue in tort and recover has not been definitively adjudicated across Canada. However, it appears that the Courts are leaning towards not accepting these documents as binding.

[1] Crocker v. Sundance Northwest Resorts Ltd. (1988), 1988 CarswellOnt 962 (SCC)
[2] Thornton v. Shoe Lane Parking Ltd. (1970), [1971] 1 All E.R. 686
[3] Principal investments Ltd. v Thiele Estate (1987), 12 BCLR (2d) 258
[4] Swanson v Henkel Enterprise 1973 CarswellMan 53 (Man. CA)
[5] Anson v Anson; Young v Young
[6] Toews (Guardian ad litem of) v. Weisner 2001 BCSC 15
[7] Wong (Litigation Guardian of) v. Lok's Martial Arts Centre Inc. 2009 BCSC 1385
[8] Infants Act RSCB 1996 c 223

Kevin Major-Hansford is a 3L at the University of Calgary's Faculty of Law and will be completing his articles at Borden Ladner Gervais LLP.