McCallum v. Jackson, 2019 ONSC 7077

The plaintiff was injured while participating in an Ironman Triathlon. His bike “came into contact” with a motor vehicle. The plaintiff sued the driver of the vehicle and Ironman. The driver of the vehicle made a crossclaim against Ironman. Upon considering the waiver signed by the plaintiff, the plaintiff discontinued his claim against Ironman. However, the driver’s crossclaim against Ironman remained ongoing. Ironman requested an order that the plaintiff was liable to indemnify it for any damages it had to pay to the defendant driver, based on the indemnification clauses in the waiver. Justice Eberhard reviewed the case law on waivers and held that the same law applied in the context of an indemnification clause. He held that the plaintiff had knowingly signed the waiver and was bound by its contents. However, he concluded that the indemnification clause was so poorly written that it could not be held to apply to the plaintiff. Justice Eberhard also went on to find that the defendant driver was not a “Released Party” by the terms of the waiver, so the driver could not look to the waiver for protection in relation to the plaintiff’s claim against her.