October 21, 2010 by Canadian Underwriter
The efficacy of waivers in reducing a company’s risk exposure is uneven in Canada, and is more likely to be effective in B.C. than in Ontario, according to Lorne Folick, senior partner at Dolden Wallace Folick LLP.
Folick was discussing liquor liability, waivers and damage awards in an address to the AEGIS Coverholders Conference in Toronto on Oct. 19.
People signing waiver forms agree to waive their right to sue an establishment in the event of damage or a loss. Folick, whose firm is based in B.C., noted waivers are an effective way to reduce exposure so long as the waiver form is simple, clear and written in the language used by the person(s) signing the waiver.
An establishment must take reasonable steps to bring the purpose of the waiver to the attention of the person signing it.
“One of the trends I’ve seen is that in B.C., we’re much more willing to enforce waivers,” Folick said, adding that people signing waivers in B.C. are not required to read the entire waiver in order for it to be enforced.
“If you have the opportunity to read it, and you do not avail yourself of that opportunity, that’s not the event organizer’s or the sports recreational facility’s fault,” he said. “That’s your problem. It’s quite draconian.”
For underwriters wanting client companies to mitigate their risks, “that’s a good news story,” said Folick – as long as the person signing the waiver is an adult.
One caveat in B.C., however, arises from a court case released two months ago (the case is now under appeal), Folick said. The scope and decision of the case suggests infants cannot waive their rights to sue.
“Does this mean that for my son, who goes skiing in Whistler or Blackcomb, his waiver is no longer effective because I can’t sign off on it?” Folick asked rhetorically.
“So, when kids go to birthday parties and they go on the climbing gym and their parents sign off on a waiver, as the law stands right now, they [the waivers] are completely ineffective right now….
“This is something you will want to look at – the degree to which the risks you may write, or with which you may be associated, involve activities of children and focus on asking the parents to sign a waiver. Right now, it’s not effective.”