Limitations Of Liability, Waivers, And Occupier Liability In Ontario

Overview

A recent Ontario Superior Court decision serves as a reminder that a liability waiver is only as effective as its drafting. In Kolsen v. The Corporation of the Town of New Tecumseth et al¹, the defendants prevailed only because the Court found no breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”) and because the plaintiff had voluntarily assumed the risks inherent in the sport, but critically, not based on their contractual waiver of liability that barred the action.

This case serves as a warning to occupiers (landlords, tenants, employers, or otherwise) using liability waivers/limitations of liability, whether for recreational programs, sports leagues, community events, or any other activity where participants are invited onto a parties’ premises, to ensure your documents are clear and in line with governing statutes.