The Allure of Risk

In Ontario, there are a ton of heart-pounding activities to enjoy year-round, including ziplining, rock climbing, paintball, white water rafting, and skydiving, among others. Organizations base their entire business on people’s willingness to sign a waiver to partake in risky activities that can include climbing under barbed wire or getting shot anywhere on their body with a paint ball.

Not everyone enjoys a quiet softball game or bridge tournaments, opting instead to experience the visceral rush and sense of accomplishment that comes from flying down a steep black diamond ski run. Millennials value experience, which has led to a boom of risky activities. Companies who offer these services take a diligent approach to legally protecting themselves from any liability and will only allow someone to participate if they sign a waiver.

Traditional Waivers

During registration, participants are required to sign a liability waiver before embarking on a risky activity. A liability waiver serves a couple of purposes. Firstly, it warns of impending dangers and ensures that the participant knows the inherent risks of the activity. For example, if strobe lighting is involved, the waiver ensures that you understand that there is a link between strobe lighting and epilepsy. The second purpose is for participants to release the activity’s operators, owners and staff from any legal liability in the event of injury or death. This means that if the participant is harmed, the company is protected regardless of whether the harm was caused by the inherent risk of the activity, negligence or breach of contract.

Waivers are non-negotiable. If you want to participate, you must sign on the dotted line. It’s an absolute legal document in that sense and the operator cannot place any pressure on a participant to sign. Anyone is simply allowed to walk away and not participate.

Yet, since these waivers are slanted towards the operator, the courts can still hold operators liable in the case of injury or death. They can choose not to enforce the waiver if they believe that the wording is confusing or that the participant was rushed into a decision. If the participant simply chose not to read the terms and consider what the waiver explicitly said, then they might be out of luck in their personal injury or wrongful death claim.

Have We Gone Too Far?

Escape games have become quite popular in Ontario. These are physical puzzle games where participants are locked in a room and must solve a series of challenging and frustrating puzzles to escape before time runs out. People who suffer from claustrophobia, anxiety or heart issues are warned against participating in these kinds of activities.

While not inherently risky, this trend may keep escalating to new levels of danger. Would you sign away your life to be subjected to a night of fear and danger at the hands of kidnappers? Mr. Escape in the GTA launched a unique escape game called Kidnap. In this game, the participant plays the role of an FBI agent, who in the investigation of a kidnapping ring, must be kidnapped by the assailants and locked inside a room.

There’s little to no precedent for participants being hurt in this type of activity, so it’s tough to say how the Ontario legal system would preside over such a matter. Ultimately, it’s best to truly consider whether the activity is worth it and to thoroughly review every line of the waiver well in advance of participating.

When Injury Strikes

While waivers are legally binding, there are situations in which a victim can still seek damages. This depends on the specific language in the waiver. There is no standard in Ontario and cases of injured participants suing despite signing waivers have had mixed results. Some of the clauses and legal language could be open to interpretation so if you are injured, the best strategy is to consult with a personal injury lawyer and have them review the waiver and decide what recourse exists.

Personal Injury Lawyers

Even if you signed a waiver and participated in a risky activity, you should consult with a personal injury lawyer if you were seriously harmed while engaging in this activity. The experienced team at Mackesy Smye can review the waiver and all supporting documentation, and determine if you have a case worth pursuing against the operator, staff or holding company.