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Please Read Carefully. You May Be Bound By This Waiver Whether You Choose To Read It Or Not.

October 21, 2021
Nancy Sarmento Barkhordari
JD Barrister & Solicitor

Arksey V. Sky Zone Toronto, June 2021

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. 

Legal Interpretation of Waivers

Justice Myers reiterated a series of rules that generally apply to the legal interpretation of waivers.

The rules are as follows: 

  1. Waivers are not circumvented by an artful interpretation. Rather, they are to be construed contra preferentem — narrowly, carefully, and applied for their objective determined meaning.
  2. Absent a defence, waivers are not void or voidable.
  3. Although the test for enforceability/interpretation of the waiver is not subjective, the plaintiff who chooses not to read the conditions of a contract, including a waiver, is deprived of any response related to what they knew or intended to the extent that it might have been relevant.
  4. A person who actually signs a waiver will be presumed to have knowledge of the contents of the contract, and in signing the contract, is bound by it.
  5. There is no obligation on the defendant to ensure that the plaintiff has read the agreement that they voluntarily signed. 

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:

  1. An interactive waiver kiosk — reliant on touch-screen computers — that patrons use to navigate, sign, and initial the waiver document.
  2. A series of large titles that “a reasonable user could not have missed,” signalling that the document was a waiver.
  3. A series of headings that referred to the document as a waiver, requiring the patron’s input and interaction.
  4. An opportunity to review the waiver on yet another page titled “Please Review Your Waiver.”
  5. Subtitles calling on the reader to “PLEASE READ CAREFULLY.”
  6. Interactive checkmarks agreeing to the contents of the agreement next to a series of provisions including limitations of liability.
  7. Bold font and capital font setting out limitations of liability.

Takeaways

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.

READ CAREFULLY.

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