Will that adventure tourism waiver stand up in court?

Adventure activities like recreational helicopter use have surged in popularity in recent years. These aircraft, flown by private providers, are becoming more affordable and give adventurers unique opportunities for sightseeing, mountain climbing, heli-skiing and more. The possibilities are nearly endless — and so are the associated risks.

So, who assumes the risk associated with private helicopter use? A review of recent court decisions suggests that’s a live question. It also shows a ubiquitous use of waivers designed to cover providers of adventure services. Still, the issue of their enforceability is so fact-specific that it requires a case-by-case (or waiver-by-waiver) assessment.

When used correctly, waivers are legally binding and can operate as a full defence against civil claims for damages resulting from injury and even death. One of the key Canadian decisions on waivers used in adventure tourism is Isildar vs. Rideau Diving Supply.

In Isildar, the Ontario Superior Court of Justice was asked to decide if a ‘waiver and assumption of risk agreement’ signed by Ali Isildar — who later died in a scuba certification program administered by the defendant — was sufficient to bar a lawsuit brought by Isildar’s family members after his death. The court found the waiver was sufficient to bar the claim entirely, and the family’s lawsuit against the defendant service provider was dismissed.

For a waiver to be enforced, it must be broadly worded to cover both the specific conduct of the service provider and the activity undertaken by the customer. It also must be presented to the customer in a way that reasonably alerts them to the fact they are giving up certain legal rights by signing the document. Further, it must not be unconscionable.

Ensuring enforceability

Although signed waivers related to athletic and adventure activities are often deemed enforceable, courts have and will decide otherwise when certain criteria are not met.

For example, in Peters vs. Soares, someone was injured in a martial arts competition. Because the waiver used by the service provider referred to martial arts ‘classes,’ but not ‘competitions,’ the waiver did not bar the lawsuit initiated for damages resulting from the competition. The B.C. Supreme Court wrote, “releases only cover matters specifically in contemplation of the parties at the time the release was given.”

And in Zaky vs. 2285771 Ontario Inc. o/a Sky Zone Indoor Trampoline Park, the customer signed an electronic waiver releasing Sky Zone from any liability arising from injuries sustained in the park caused by the trampoline park’s negligence, breach of contract, or other breach of duty. The customer sustained a cervical fracture while using Sky Zone and sued for damages.

When Sky Zone attempted to use the electronic waiver as a complete bar to the claim, the Ontario Superior Court found it was an open question whether the waiver had been brought to the customer’s attention sufficiently.

The customer claimed he had been told by an employee to sign ‘quick’ so he could join his friends on the trampolines or risk losing his time slot. Further, he claimed he was only required to click ‘I agree’ once in a very lengthy document, and that none of the waiver’s terms were highlighted or bolded to attract specific attention.

Writing better waivers

There is no concrete checklist for ensuring a waiver is enforceable, but strong waivers:

• Use clear, precise language to describe the activity and risk
• Are made available to customers well in advance of the activity
• Are brought to the customer’s attention in any number of ways, including a refusal to accept payment for the activity until the waiver is read and signed, ensuring a customer has time to read the waiver and is not rushed, and requiring a signature or initials next to any waiver of liability clauses
• Use headings, bold fonts, underlining and highlighting as appropriate to draw attention to any waiver of liability clauses
• Are available in multiple languages
• Are, when issued electronically, deployed through an appropriate program or application
• Are available online

Another important consideration for providers of adventure activities like helicopter tourism is the client’s age. While adults can sign waivers deemed to be legally binding in relation to their own assumption of risk, the same may not be true for minors.

For example, in the 2009 case Wong (Litigation guardian of) vs. Lok’s Martial Arts Centre Inc., British Columbia’s Infant Act was deemed to bar the enforceability of a waiver signed by a parent on behalf of a minor.

The law in other provinces (including Ontario) that do not have similar legislation to B.C.’s Infant Act is less certain. But it bears mentioning there may be strong public policy arguments against the enforceability of waivers for minors.

Sonya Katrycz and Alex Reyes are both insurance litigators and partners at ZTGH. This article is excerpted from one appearing in the October-November 2024 print edition of Canadian Underwriter. Feature image courtesy of iStock.com/Image Source