Waivers and Challenges to Their Enforcement

Summary

This lecture discusses the nature and enforceability of waivers, which transfer liability from service providers to consumers in various activities like skiing and car rentals. It outlines the legal framework established by the Supreme Court of Canada, highlighting a three-part test for enforceability: applicability to specific circumstances, lack of unconscionability, and adherence to public policy. Through examples, such as waivers from Blue Mountain and car rental agreements, the lecture emphasizes the importance of understanding the language of waivers and the conditions under which they may not be enforceable, urging consumers to be informed before signing.

Takeaways

• 😀 Waivers, also known as exclusion clauses, transfer liability from service providers to consumers, protecting companies from legal claims for injuries.
• 😀 Signing waivers is common in activities like skiing, bowling, and renting cars, but it often limits the consumer's ability to sue for injuries, including those caused by negligence.
• 😀 The enforceability of waivers is determined by a three-part test established in the Supreme Court case *Tercon Contractors Limited v. British Columbia* (2010).
• 😀 For a waiver to be enforceable, it must specifically apply to the circumstances of the injury sustained by the consumer.
• 😀 Unconscionability is a critical consideration in determining waiver enforceability, focusing on whether there is a significant power imbalance between the parties involved.
• 😀 Courts will evaluate if consumers voluntarily engaged in risky activities, which can negate claims of unconscionability regarding waivers.
• 😀 Public policy considerations, particularly regarding minors, suggest that waivers signed by parents on behalf of children may not be enforceable.
• 😀 Examples like Blue Mountain Resort and rental car agreements illustrate how waivers cover a wide range of potential injuries and situations.
• 😀 It's essential for waivers to have clear and unambiguous language, allowing consumers to understand their rights and liabilities effectively.
• 😀 Consumers should not assume that all signed waivers are enforceable and may seek legal advice if unsure about their rights and the applicability of a waiver.

Q & A

What is the main purpose of waivers in activities like skiing or renting a car?

Waivers, also known as exclusion clauses, transfer the risk of injury from the provider to the consumer, thereby limiting the company's liability for any injuries sustained during the activity.

When are waivers considered enforceable?

Waivers are enforceable when they meet a three-part test: the exclusion clause must apply to the circumstances, it must not be unconscionable at the time of contract formation, and the court should not refuse enforcement based on overriding public policy.

Can you give an example of when a waiver was not enforced by a court?

In the case of a skier who slipped and fell in a parking lot, the court found the waiver unenforceable because it only covered injuries sustained from downhill skiing, not from walking on ice.

What is meant by 'unconscionability' in the context of waivers?

Unconscionability refers to a significant power imbalance between parties. If a waiver is deemed unconscionable, it may not be enforced, but this is not automatically the case simply due to the presence of a waiver.

How does public policy influence the enforceability of waivers for minors?

Public policy generally dictates that parents cannot waive their minor children's rights in tort by signing waivers on their behalf, making such waivers likely unenforceable.

What specific requirements must a waiver meet to be considered enforceable?

A waiver must have clear and unambiguous language, be easily understood by the consumer, cover the specific circumstances of the case, and not be unconscionable or violate public policy.

What should someone do if they are unsure about the enforceability of a waiver they signed?

If unsure about a waiver's enforceability, it's advisable to consult a personal injury lawyer or an expert in that area to assess the situation and determine potential rights to sue for damages.

What does the Blue Mountain example illustrate about waivers?

The Blue Mountain example demonstrates how a clearly articulated waiver, which includes broad language regarding liability for negligence and other risks, can limit the ability of consumers to seek legal recourse for injuries incurred during activities.

How does the case 'Tercon Contractors Limited v. British Columbia' relate to waivers?

This case established the three-part test for determining the enforceability of waivers and exclusion clauses, which is referenced frequently in legal discussions surrounding waivers.

What types of activities typically require consumers to sign waivers?

Consumers often sign waivers for activities like skiing, skydiving, renting vehicles, participating in sports, and using recreational facilities, where there are inherent risks involved.