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ARTICLE · 13 AUGUST 2020

Above And Beyond: Simply Signing A Waiver May Not Be Enough

Borden Ladner Gervais LLP
Borden Ladner Gervais LLP
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Robert L. Love, Robin Squires, Edona C. Vila, Shanna Stanley-Hasnain

CanadaLitigation, Mediation & Arbitration
Robert Love
Robert Love
Robin Squires
Robin Squires
Edona Vila
Edona Vila
Shanna Stanley-Hasnain
Shanna Stanley-Hasnain
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Occupiers of premises often use waivers as risk management tools to disclaim liability. Despite their popularity, including in the age of COVID-19, waivers represent instruments that are difficult to enforce in court. The recent Superior Court of Ontario decision in Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380 stands as a reminder of the challenges associated with enforceability of waivers as a full defence. The Court reiterated that simply making it a requirement to sign the waiver before participation was not enough in many cases.

Background

The plaintiff visited the defendant's indoor trampoline park. While utilizing the defendant's facilities, the plaintiff landed on his head when attempting a back flip, resulting in a fractured vertebra that required surgery. Prior to using the defendant's facilities, the plaintiff signed a mandatory electronic waiver at a computer kiosk at the defendant's premises. The plaintiff's evidence that he was rushed through the

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