It’s September now and students are returning to school for a brand-new academic year. The rigours of academia come along with fun school field trips and other extracurricular activities. Part and parcel of being involved in such events are permission forms and waivers of liability.
The fact of the matter is that people sign waivers every day. By simply being a member of society, we subject ourselves to a great deal of risk. Certain activities are inherently riskier and are often accompanied by the dreaded waiver of liability form. Recently, while vacationing in New Zealand, I decided to take part in a tour of an active volcano in the middle of the Pacific Ocean – Whakaari. As excited as I was that morning, my stomach turned at the sight of the waiver of liability which informed me that the tour company would not be liable in the event of a volcanic eruption. Now, field trips may not be as fraught with danger as going to an active volcano, but they often involve a certain amount of risk.
It is important to note that signing a waiver of liability does not absolve a party of negligence or prevent you from suing for damages when you are injured. The enforceability of waivers of liability, or exclusion clauses, was explored by the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia.
In Tercon, the Supreme Court laid out a three-part test:
- Does the exclusion clause apply to the breach – the circumstances at hand and the factual matrix? If the exclusion clause does not capture the conduct that formed the basis of the action, then the clause will be found to not be enforceable.
- Was the exclusion clause unconscionable at the time the contract was made? Here, the courts will look at unequal bargaining power between the parties.
- Will the enforcement of the exclusion clause go against public policy? The common law has always found there to be a strong public interest in the enforceability of contracts for various social and economic reasons. In order to get around an exclusion clause, the courts will have to find that enforcing the exclusion clause will override this strong public interest in the enforceability of contracts.
In Tercon, Justice Cromwell found that the exclusion clause was not enforceable because the language of the waiver of liability was ambiguous and did not cover the conduct of the alleged breach.
The test laid out above is a rather hard one to meet with very few cases being successfully found to have exclusion clauses that were deemed unenforceable. That being said, waivers of liability are not bullet-proof contracts and if found to have some ambiguous wording that does not capture the conduct proscribed, then they might be found to be unenforceable.
If your child is injured during a school activity or field trip, you need a lawyer that specializes in personal injury matters, and understands how permission forms and waivers can impact a potential claim. Call the Jasmine Daya & Co. team at 416-967-9100 or contact us online to schedule a free consultation.
 Tercon Contractors Ltd. v British Columbia, 2010 SCC 4, 1 SCR 69.