By Alon Barda
The issue of waivers has been prevalent in many cases recently and was, yet again, in the recent summary judgment decision of French v. Augusta Motorsports Park, 2021 ONSC 8385.
In July 2015, the main plaintiff was riding his four wheel-wheel drive vehicle up a sand pit at Augusta Motorsports Park when the vehicle tipped backward and landed on him. He was seriously injured as a result of the accident. He sued Augusta based in part on the defendants’ alleged failure to maintain the sand pit.
The defendants moved for summary judgment to dismiss the claim based on the terms of a release of liability and waiver of claims document signed by the plaintiff. The plaintiff took the position that there are genuine issues requiring a trial regarding the interpretation and applicability of the waiver and whether the plaintiff knew that he was signing the waiver.
When the plaintiff arrived at the park, he was presented with and signed a one-page waiver. The evidence is that patrons were told they were signing a waiver and they were asked to read the waiver. The patrons were also given adequate time to read the waiver and volunteers were present to answer any questions about the waiver.
In his affidavit, the plaintiff stated that he understood that he was signing a registration form but not a waiver. He agreed on cross-examination that no one rushed him through the registration process and that he had the opportunity, and was provided with sufficient time, to read the waiver had he chosen to do so. He also agreed that he could have asked questions about the waiver and that he had the opportunity to have the waiver explained to him.
Furthermore, the plaintiff acknowledged that he was participating in an event where he would be driving a four-wheel drive vehicle where there was a risk of injury, and that there were rules associated with attending Augusta.
There were also several warnings signs on the property advising of the event rules and advising patrons that they were signing a release and waiver.
The accident took place in a sand pit that was cordoned off with caution tape. The plaintiff maintained that he had unfettered access to the sand pit during the event and he did not recall any warning signs around the sand pit. He also claimed that he was never told he could not use the sand pit.
Law and Waiver
The motion judge referred to the law on waivers as recently summarized by Justice Myers in Arksey v. Sky Zone Toronto, 2021 ONSC 4564, at paras. 21-24, wherein he held that a person that actually signs the waiver is be presumed to be bound by it.
Moreover, Justice Myers held that there is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. As long as a person is provided with an opportunity to read the agreement, it is up to the person to choose whether to read it or not.
The waiver in the case at bar was a one-page document with the title set out in capital letters:
RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT
BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE
PLEASE READ CAREFULLY
The motion judge held that a reasonable person could not have missed the title.
The next portion of the waiver asked the patron to warrant and agree as follows:
I am familiar with and accept that there is the real risk of serious injury and death in participation, whether as a competitor, student, official or worker, in all forms of motor sport and in particular in being allowed to enter, for any reason, any restricted area…
I understand that all applicable rules for participation must be followed, regardless of my role, and that at all times during the EVENT the sole responsibility for my personal safety remains with me…
There were further paragraphs setting out “an unqualified assumption” of all risks and a full and final release and waiver of all liability and all claims. The plaintiff also printed his name and signed the waiver.
After reviewing the terms of the waiver, the Court summarized that, by executing the waiver, the plaintiff assumed all risks, released all claims for any cause whatsoever, and agreed not to sue the releasees for any loss or injury regarding of the cause.
The plaintiff raised four arguments that he said required a trial. The first issue raised was whether the plaintiff knew at the applicable time that what he was signing was a waiver. The motion judge found that a reasonable person could not have missed the title of the waiver, which expressly stated it is a release of liability and a waiver of claims.
Furthermore, the signs posted throughout the park would have reinforced to a reasonable person that they had signed a release and waiver and that, by signing, the signor waived certain legal rights. Accordingly, the motion judge held that there was “no obligation on Augusta to ensure that [the plaintiff] read or understood the waiver. By all subjective and objective accounts, [the plaintiff] consented to the waiver he signed.”
The second issue raised was whether the location of the accident was covered by the waiver. In this regard, the plaintiff argued that the waiver did not apply to the sand pit, as it was not part of the “event.” The motion judge found that the sand pit was covered by the waiver for various reasons, including that the waiver was signed to gain admission to the park and the sand pit was located within the park.
The third issue was whether the waiver applied to event participants and not event spectators. On this issue, the Court found that the waiver applied to any injury that the plaintiff might sustain as a result of his “participation in any part of, or [his] presence in any capacity”. Since he was indeed present “in any capacity”, the waiver was found to apply.
Lastly, the motion judge looked at whether the plaintiff understood the waiver’s potential implications. The Court repeated the earlier analysis and held as follows: “there is no general requirement that a party tendering a document for signature take steps to apprise the party signing of onerous terms or to ensure the party signing reads and understands the terms.”
In addition, the motion judge held that, “only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms does such an obligation arise.” As this obligation did not arise in this case, the motion judge held that the waiver applied and he concluded that the case that should be resolved summarily.
It seems as though everyone from personal trainers to indoor playgrounds for children all have extensive waivers that require signing before entry these days. These waivers do not simply protect the vendor from the negligence of the patron but also state that they are not liable for their own negligence.
In this case, there was no need to analyze whether the sand pit was properly sectioned off or whether the plaintiff was advised not to ride in that area. The fact was that the plaintiff signed a broad and strongly worded waiver and his claim was dismissed based on the terms of the release of liability and waiver of claims document signed.
Accordingly, those signing a waiver would be very wise to take time to understand what they are signing because that signature can have significant implications should something unfortunate occur.