A recent, notable case from the Ontario Superior Court of Justice elaborates on the principles concerning the validity and enforceability of waivers against personal injury litigants.
In Arksey v Sky Zone Toronto (2021), the defendant, Sky Zone, brought a summary judgement motion for dismissal of the plaintiff’s (“Arskey”) claim for personal injury. The motion for dismissal was brought about on the basis that the plaintiff was bound by the waiver that she had signed — a waiver that released the defendant’s liability in tort.
Arskey sustained injuries at Sky Zone during a recreational game of trampoline dodgeball. Arskey alleged that she was not instructed on the rules of the game or safety protocols. Stating that no employees were present in the game room to monitor the game, she claimed that she had been sent back into the gaming area after an initial mishap during the game.
The defendants, Sky Zone, raised the defence of waiver.
At the motion, Arskey argued that the instances of negligence she alleged in her claim were not captured by the waiver or voluntary assumption of risk.
The issue on motion was whether Arskey had waived her claims for damages arising from the risk of injury, caused by 1) the defendant’s negligent failure to instruct or supervise the other patron on the rules of the game and 2) its negligent failure to follow injury policies.
Sky Zone was successful on its motion for summary judgement. Arskey’s claim was dismissed.
Justice Myers reiterated a series of rules that generally apply to the legal interpretation of waivers.
The rules are as follows:
In assessing the enforceability of the Sky Zone waiver, Justice Myers noted that Sky Zone’s waiver was not deceptive. The waiver signed by Arskey in this case brought home to the reasonable reader that liabilities of the type claimed were waived and not actionable.
In coming to this conclusion, Justice Myers noted numerous instances where the waiver-signing process alerted Arskey to the importance and nature of the document that she was signing, including:
The Arskey case yields a number of takeaways.
The most notable takeaway is that the signee of a waiver is presumed to have intended to be bound by the agreement and to have knowledge of its contents, irrespective of whether the agreement was actually read.
This places an onus on a plaintiff who has signed such a waiver to rebut the presumption of knowledge of and intention to be bound by the agreement.
Second, although a defendant should alert the reader/signee of what they are signing, they are not obliged to make sure that a signee has actually read the agreement.