The Clearer The Better: Waiver's Unclear Indemnity Is Not Enforceable

In McCallum v. Jackson, 2019 ONSC 7077 the Court considered the issue of whether the language of an indemnity provision in a waiver was clear enough to be enforced. Upon review, the Court found that the indemnity provision was not binding because it did not adequately convey its meaning.

Background

The plaintiff was a cyclist participant in the Ironman race. When registering to enter the race, the plaintiff electronically accepted a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement (the Release) absolving Ironman and a defined list of third parties of liability from any race mishaps.

During the race, the plaintiff's bicycle came into contact with a vehicle operated by the defendant, Jackson. The plaintiff sustained injuries and subsequently commenced a claim against Jackson and the Ironman organization. Jackson cross-claimed against Ironman in the action and Ironman counterclaimed against the plaintiff, arguing that there was no genuine