November 30th, 2020

What is a liability waiver?
 
         A liability waiver is an exclusionary clause that is drafted to protect a party from liability by excluding liability altogether or limiting liability. Also known as “limitation of liability” clause or “waiver”. If taking part in the activities involved in your business could lead to any risk of injury for the patrons of your business, as a business owner, you will want your customers to sign a liability waiver. This blog post is intended to give a brief overview of liability waivers and to give business owners some tips on how to approach this issue.
 
Standard Form Contracts
         Standard form contracts are massed produced documents that often include the liability waiver and can be the document that you get every customer to sign. There are many advantages to a standard form contract. The standard form means that you will not have to negotiate specific terms with every customer that comes to your business, this leads to reduced costs and increased certainty in the terms. These are very commonplace in startup companies and should be used correctly to ensure that the liability waiver is enforceable.
         As Professor Girgis has written[1], the standard form contracts present the customer with a “take it or leave it” agreement, and the lack of negotiation between the patron and the company brings into question whether the clause should be enforceable.
 
How to ensure your waiver is enforceable
         First, it is well established law that reasonable notice needs to be given to patrons. Practically, this refers to when you bring the liability waiver to the attention of the patron and how you go about bringing this to their attention.[2] The more onerous the clause, the more notice you should give to the patron. If the document waives you of liability even when you, the company, is negligent, you will need to bring a considerable amount of early notice to the patron. In a British Columbia decision involving a bike park[3] the company’s waiver was enforced and protected the company from any liability. The notice given in this case involved the waiver itself, but also signs around the park written in bold saying “STOP – READ THIS” to bring extra attention to the waiver of liability. Within the document, the bike park used yellow boxes, bold print and larger letters in places to draw attention to the important details. Further, the language used in the document was clear and blunt, and left no doubt that the typical adult could understand the waiver.
         In another British Columbia case[4], however, signage did not help a ski resort from escaping liability. An important distinction to be made here is that there was not a signature required for the waiver of liability. When a liability waiver does not require express signature or a document that the patron’s attention can be drawn to, businesses are required to meet a higher bar for reasonable notice. In other words, there is no magic formula to ensuring that your waiver will be enforceable and certainly protect you from any liability.
        
Concluding Recommendations
         In order to have an effective waiver of liability you need to use plain language and to bring sufficient notice to your patrons. The language used should be understandable to any person and should avoid unnecessary legal jargon. Further, it should be a company policy to affirm with the customer that they have had enough time to read the contract.
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         If an exclusionary clause ends up being challenged in court for its enforceability, the outcome is ultimately unpredictable. However, a prudent business owner will follow the two basic tips set out in this post: use clear language, and ensure the customer has the time to read the contract.

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[1] Jassmine Girgis, “Incorporating Waivers of Liability into Contracts” (May 11, 2020), online: ABlawg, http://ablawg.ca/wp-content/uploads/2020/05/Blog_JG_Apps.pdf
[2] See Thornton v Shoe Lane Parking Limited, [1970] EWCA Civ 2,
[3] Jamieson v. Whistler Mountain Resort Limited Partnership and Gravity Logic Inc., 2017 BCSC 1001,
[4] Apps v Grouse Mountain Resorts Ltd., 2020 BCCA 78 (CanLII)