Category: Waiver

Lewis v. 3414493 Canada Inc., 2022 ONSC 2769

The plaintiff was injured in a slip and fall. The plaintiff was a resident of the apartment that owned the parking lot where she fell. Her lease contained a waiver of liability in favour of the apartment owners and property managers. The plaintiff brought a motion seeking a determination as to whether the landlord defendants could rely on the waiver provision. The landlord defendants brought a motion to strike certain paragraphs of the plaintiff’s reply to their statement of defence, which related to the waiver provision. Justice Perell held that the landlord defendants could not rely upon the waiver because it was contrary to the Residential Tenancies Act, 2006 and O. Reg. 517/06 Maintenance Standards. He also noted that sections 8 and 9 of the Occupiers’ Liability Act specifically state that landlords are subject to the same duty of care in section 3 of that Act.

French v. Augusta Motorsports Park, 2021 ONSC 8385

The plaintiff was seriously injured at the defendant motor park while riding his four-wheel drive vehicle up a sand pit. He and three Family Law Act plaintiffs sued the occupiers of the premises and organizers of the event for damages. The defendants brought a motion for dismissal by summary judgment on the basis that the action was barred by a waiver that the plaintiff signed prior to being admitted to the event. Justice Bell granted the defendants’ motion and dismissed the action. Justice Bell found that the waiver was clear, the plaintiff knew what he was signing, the waiver covered the incident in question, and the plaintiff was not rushed when reviewing the waiver.

Arksey v Sky Zone Toronto, 2021 ONSC 4594

The plaintiff suffered a torn ACL and MCL while playing dodgeball trampoline at Skyzone. She sued Skyzone for damages. Skyzone moved for summary judgment based on the terms of a waiver and release of liability signed by the plaintiff. Justice Myers held that the waiver specifically applied to the claims made against Skyzone, and dismissed the plaintiff’s action. The plaintiff’s evidence in this case was that she did not read the waiver. Justice Myers noted that there is no obligation on a defendant to ensure that the plaintiff has read an agreement she voluntarily signed.

There was no indication that the defendant ought reasonably to have known that the plaintiff was not consenting to the terms that she signed. The waiver emphasized the onerous provisions and directed the reader to read them carefully. It also required the plaintiff to touch her finger to a box next to each of the two key paragraphs to enter a checkmark beside the words “I agree”.

Justice Myers found that the waiver itself was explicit, and that it was brought to the attention of the signor explicitly.

Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380

The plaintiff was injured while attempting a backflip at the defendant indoor trampoline park. He sued the facility for damages, alleging that it breached the Occupiers’ Liability Act. Before using the facility’s equipment, the plaintiff had signed an electronic waiver document at a computer kiosk. The plaintiff’s evidence on the motion included that the defendant’s employee rushed him to complete the waiver and did not explain its implications to him. None of the waiver of liability terms in the document captured his attention and he did not knowingly give up his legal rights. His evidence was uncontested on the motion. Justice Conlan dismissed the motion, finding that the issue of whether the defendant took reasonable steps to bring the waiver to the plaintiff’s attention was a genuine issue requiring a trial.

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.

Enterprise Rent-A-Car Canada Company v. Bryan, 2018 ONSC 5203

The Plaintiff brought a summary judgment motion seeking payment for repair costs of a rented vehicle that was damaged in an accident while it was being rented by the Defendant. The Defendant attempted to rely on the damage waiver in the rental car contract on the basis that the rental vehicle was allegedly stolen during the rental period. The rental agreement also provided that the damage waiver was invalidated in certain circumstances (e.g. where the renter failed to return the original ignition key or ensure that the vehicle ignitiation was turned off at the time of the theft). Justice McArthur found that the Defendant had failed to prove that he returned the original ignition key and did not ensure that the vehicle was turned off at the time of the theft. As such, summary judgment was granted to the Plaintiff.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313

In Schnarr v. Blue Mountain and Woodhouse v. Snow Valley Resorts, the Plaintiffs executed the ski resorts’ waivers of liability as a condition of the purchase of their lift tickets and were subsequently injured. In Schnarr, the motion judge held that the resort could not disclaim liability for any breach of the deemed warranty of providing services of a “reasonably acceptable quality” and found that the Plaintiff could advance claims in negligence and breach of warranty. The motion judge held that the negligence claim would be subject to the resort’s waiver, but that the breach of warranty claim would not. In Woodhouse, the motion judge held that the resort’s waiver was presumptively void and that the Plaintiff could proceed with her claim. The two appeals were heard together. The Ontario Court of Appeal held that ss. 7 and 9 of the Consumer Protection Act, 2002, S.O. 2002, c. 30 (“CPA”) conflicted with s. 3 of the Occupier’s Liability Act, R.S.O. 1990, c.O.2 (“OLA”). As such, the specific provisions of the OLA prevailed over the general provisions of the CPA and the Plaintiffs were bound by the waivers and releases of liability, regardless of whether their claims were in tort or breach of warranty.

Rush v. De Ruiter, 2018 ONSC 1210

The Plaintiff alleged injuries as a result of obtaining laser treatment at a clinic. The Defendants sought summary judgment in relation to the negligence claim on the basis of a signed consent/release. They also sought summary judgment in relation to the breach of contract and vicarious liability claims. Justice Allen denied the motion in relation to negligence on the basis that the signed release was not equivalent to a waiver of liability for negligent treatment. Justice Allen granted summary judgment in relation to the breach of contract claim on the basis that the Plaintiff had not provided expert evidence to support the claim. The motion with respect to vicarious liability was denied as Justice Allen felt that there were genuine factual issues requiring a trial.