Waivers Of Liability: A Top Ten FAQ

August 27, 2014

By Brian Babcock

1. What is a waiver of liability?
A waiver is a document by which a person gives up something, such as a right to sue for injury. Waivers are very common in recreational activities, but might also be found in everything from medical treatment to cooking classes.
2. What is the difference between a waiver and a release?
The term waiver is commonly used to refer to a document signed before damages or injury occurs. A release usually refers to a document signed after the injury or damage has occurred.
3. How effective is a waiver of liability?
Waivers are often effective when signed by sober adults who have good awareness of the general nature of the risks they are accepting and the rights they are giving up.
4. Why “sober adults”, not just “adults”?
Many of the cases where courts override a waiver involve people who were drunk when they signed, or allowed to take part in risky activities after the promoter knew they were drunk – the law tends to treat drunks like children, as needing extra protection.
5. Can children waive their rights?
Certainly not young children. Though a waiver signed by a child just under 18 would not have binding force in contract law, it might still be evidence that the child was aware of and assumed the risks.
6. So can I waive my child’s rights?
In Ontario, like most places, a waiver signed by a parent is not likely to be effective – the promoter instead might get the parent to sign an “indemnity agreement”, but these are not worth much more.
7. Is a waiver effective if it is printed on the back of my ticket?
A waiver on a back of a ticket is only effective for common risks of the activity. Most effective waivers are signed by the participants.
8. Is a homemade waiver form effective?
Like any contract, having a lawyer prepare your waiver form and instruct you on how to have it signed increases the likelihood that it will accomplish your objectives.
9. What if I don’t understand the waiver?
It is up to the promoter to make sure the participant understands the form – that is one of the reasons why we always recommend that they be signed onsite in front of a knowledgeable witness who can verify that the person understood.
10. I signed a waiver and got injured – what should I do?
Because waivers are not always effective, if your injury is worth suing over, you should still consult an experienced personal injury lawyer. He or she can review the odds of success. Remember that insurers will often settle rather than risk a waiver being not upheld in court.