Waiver of liability

How BC law treats it

A liability waiver is a contract, so ordinary contract rules apply. Courts in British Columbia apply the framework in Tercon Contractors Ltd v British Columbia (Transportation and Highways), 2010 SCC 4: first, does the waiver, properly read, cover the claim; second, was it unconscionable when made; third, is there an overriding public policy reason not to enforce it. Ambiguous wording is read against the party relying on it. To cover negligence, the waiver should say so expressly. Notice matters. In Karroll v Silver Star Mountain Resorts Ltd (1988), 33 BCLR (2d) 160 (SC), the court enforced a ski race release and held that a party relying on a signed release must take reasonable steps to bring it to the signer's attention only where it knows or ought to know the signer does not intend to agree. Releases signed in a rush, buried in fine print or presented to someone who cannot read them carry more risk. The Occupiers Liability Act, RSBC 1996, c 337 lets an occupier restrict or exclude its duty of care by express agreement or notice, within limits. Minors generally cannot be bound by a release because of the Infants Act. A waiver also cannot exclude statutory rights that cannot be contracted out of. After a dispute arises, parties often settle by signing a general release of all claims. That is different from an advance waiver signed before an activity or service.

What it means for your business

Gyms, tour operators, event venues, equipment rental businesses and contractors rely on waivers to limit claims. A well drafted waiver can end a negligence lawsuit early, but a vague or hidden one often fails when it is needed most. The business must also prove the customer signed it, so keep signed copies or electronic records. Waivers do not replace insurance, safety procedures or proper staff training. Example: A Whistler bike rental shop has customers sign a clear one page release that expressly covers the shop's negligence, gives them time to read it, and stores the signed copy electronically. When a customer sues after a fall, the shop relies on the release.

Risks and common mistakes

Using wording that does not expressly cover the business's own negligence. Handing customers a long waiver at the last moment with no real chance to read it. Relying on a waiver signed by or for a minor. Failing to keep signed copies or reliable electronic signature records. Assuming a waiver protects against claims under statutes that cannot be contracted out of.