ZAKY v. 2285771 ONTARIO INC., 2020 ONSC 4380

Waiver form can’t be an absolute defense and it is subject to the reasonable steps taken by defendants to bring contents of the waiver form to the notice of the plaintiff.

The plaintiff (P) had signed an electronic waiver document (“waiver”) at the premises (an indoor trampoline and fun park) of the defendant (D) which inter alia alerted the guest to the assumption of risks, release of liability, waiver of claims (claims for negligence and breach of the Occupiers’ Liability Act R.S.O. 1990, c. O.2 (the Act)) and indemnity agreement. It also waived certain legal rights i.e. the right to sue. D had moved for summary judgment to dismiss the action claiming waiver of the right to sue by P among the other waivers. Regarding the validity of waiver, the Judge accepted the claim of D that a waiver can bar a claim in negligence under tort at common law and preclude a claim under statutory law. Among the three exceptions to the general enforceability of waivers as enumerated in Tilden Rent-a-Car v. Clendenning, [1978] 18 O.R. (2d) 601 (C.A.), one is a circumstance where a reasonable person ought to have known that the person signing the wavier did not intend to be bound by its terms. Here D is required to take active steps to draw the terms of waiver to the singer’s knowledge and not just handover the waiver. In case D fails to do so, it will amount to misrepresentation.

To deliver summary judgment, the only inquiry was whether D had taken reasonable steps to bring the terms of the waiver to P’s attention. As P was not cross-examined on his evidence and D had not presented any witness who was present when P had visited the defendant’s premise, the issue remained uncontroverted as to what transpired in the meantime between P’s arrival and the completion of the waiver process. The Court noted that if the terms of the document are unusually onerous and the circumstances show that the person signing it did not know the terms because they were not afforded enough time or proper conditions to do so then the party seeking to rely on the document will have reason to know that the person signing did not intend to agree to the terms. Simply notifying a waiver requirement will not constitute a reasonable step in law. After considering the evidence adduced on the motion, weighing the evidence, evaluating its credibility and drawing reasonable inferences, if the Court was unable to say with confidence that the action was destined to fail because of the waiver and the Court dismissed the motion for grant summary judgment calling for trial.