Minors – the Special Case of Liability Waivers

A liability waiver [hyperlink to 1st waiver blog] is a legal document – a contract – that a participant in an activity signs to waive his or her legal right to sue for compensation in case of an injury (or death) during participation in the activity. Waivers are a matter of course in the outdoor/adventure industry, and their execution is usually a pre-condition of participation in the activity.

If a participant in the activity is injured and decides to sue, the business will seek to have the courts enforce the waiver and have the lawsuit dismissed. This is by no means a certain result, but it is well established in Canadian law that a liability waiver can be upheld and the case dismissed – if the waiver was properly drafted [hyperlink to 1st waiver blog] and if it was administered according to best practices. [hyperlink to best practices waiver blog]

Liability Waivers for Minors

The situation is different when the activity participant is a minor. Since minors lack the legal capacity to sign contracts, liability waivers commonly require a “parent/guardian” signature on the minor’s behalf.

However, at law, while contracts can be enforceable by a minor, they are not enforceable against a minor (J. Wilson, Wilson on Children and the Law, 3d (Toronto: Butterworths, 1994)), implying that liability waivers signed by parents/guardians of minors are invalid and do not protect companies who would seek to rely on them in defense of an injury lawsuit.

A “minor” (or “infant” or someone below the “age of majority”) is legally defined in British Columbia as anyone under the age of 19. The same is true for Yukon, Nunavut, Northwest Territories, Nova Scotia, New Brunswick, and Newfoundland and Labrador. In Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan, the age of majority is 18.

Does this mean that companies are not protected by liability waivers for anyone under the age of majority, regardless of whether the participant and/or the parent or guardian has signed it? This is particularly concerning for outdoor/adventure companies, let alone schools, summer camps, sports teams, recreational/community sport facilities or anyone else delivering higher risk activities for youth and who would otherwise look to such waivers to protect themselves from legal action.

Somewhat surprisingly, there does not appear to be any authoritative legal decision, either federally or provincially, on the validity of waivers signed by parents/guardians on behalf of minor children. There are, however, two decisions that offer some guidance.

Wong (Litigation Guardian of) v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385 (Wong)

In Wong, the plaintiff’s mother had signed a waiver on his behalf when he enrolled in martial arts training. After he was injured in a sparring match, an action was brought on his behalf for damages.

In finding that the waiver was unenforceable, the British Columbia Supreme Court relied on a provision in BC’s Infants Act, which does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. Thus, this decision turned on a BC statute and not the common law, meaning its applicability is limited in other provinces.

Dewitt (Litigation guardian of) v. Strang, 2016 NBQB 28 (Dewitt)

Dewitt is a 2016 decision from the Court of Queen’s Bench of New Brunswick, a province which does not have an analogous provision to the one in BC that decided Wong.

In Dewitt, the 15-year-old plaintiff was rendered quadriplegic in a motor cross accident after his father had signed the waiver on his behalf. He brought an action against various individuals and organizations connected with the event. In their defense, the defendants included a section that relied on the waiver of liability, and the plaintiff brought a preliminary motion to strike out these paragraphs from the pleading.

As this was a preliminary determination, the plaintiff was required to demonstrate that the defendants’ plea (regarding the liability waiver) was scandalous, frivolous or vexatious. Before the court, the parties were unable to find any authorities squarely addressing the issue of parents signing waivers on behalf of their minors. As a result, the court could not find that the part of the defense relying on the liability waiver was scandalous, frivolous or vexatious, so it was allowed to remain. This result was appealed to the New Brunswick Court of Appeal, which affirmed the decision (2016 NBCA 63).

Notably, the judges refused to determine the ultimate question – whether a clearly worded waiver signed by parent and minor was effective against the minor – because that decision “would transcend the parties” and such a determination was properly to be made as part of a full trial, not the preliminary motion that the court had before it. Unfortunately, it appears that this case was settled before the full trial could be held, so the larger issue remained unresolved.

While the courts have not yet outright decided that the waivers signed on behalf of minors will be unenforceable as a general rule (except in British Columbia where a statutory provision has led to a clear ruling of unenforceability), given the general law on contracts and minors, it seems likely that this will be the ultimate result.

This was the opinion of the Manitoba Law Reform Commission, in its 2009 publication Waivers of Liability for Sporting and Recreational Injuries, where it stated:

The general rule is that a contract with a minor for necessary goods and services is enforceable by and against the minor. Contracts for services which are not necessaries are enforceable by the minor but not against the minor. Waiver agreements and the underlying contract for sporting or recreational services are unlikely to be construed as necessary.

The Law Reform Commission of British Columbia reached a similar conclusion in its 1994 publication Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities:

Minors should not be prejudiced by their own parents’ naivete. This is the historic policy of the law, and it is still sound. Modern legislation in the Infants Act provides for minors to be granted capacity to enter into an enforceable agreement where it is clearly in their interests. The traditional protection should remain available where it is not.

How can outdoor/adventure companies protect themselves?

What, then, can outdoor/adventure companies, school groups, summer camps, sports teams, recreational/community sport facilities – and their insurers – do to protect themselves from claims brought by minors who injure themselves during the minor’s participation in a hosted activity?

Before dismissing the plaintiff’s motion, the court in Dewitt discussed (without providing a judicial opinion on their enforceability) two possible alternatives to the parental liability waiver:

an indemnity agreement between the parent/guardian and the activity organizer, and
a signed acknowledgment of risk from the parent/guardian.

Indemnity Agreement

An indemnity agreement would see the parent/guardian agreeing to reimburse the activity organizer for any damages (settlement or trial judgment), legal fees or other costs incurred in defending a lawsuit brought by their minor child for any injuries incurred during participation in the activity. It seeks to deter a parent/guardian from commencing an action on behalf of an injured infant by shifting the loss from the activity organizer to the parent/guardian.

While there is dated authority (Stevens v. Hewitt, [1969] 1 O.R. 761 (Ont. H.C.J.)) that such agreements are unenforceable, there does not appear to have been any recent judicial comment, and their effectiveness in limiting liability is uncertain. The Law Reform Commissions of both BC and Manitoba have each commented that such agreements are likely to be against public policy, given that “they are clearly intended to discourage a parent from pursuing a child’s rights.” However, neither legislature has moved to enact legislation specifically prohibiting such indemnification agreements (despite a recommendation to do so by the Manitoba Commission).

Further, even if an indemnification were to be upheld by the courts, it would result in the activity organizer having to defend and pay out a minor’s claim and then seek reimbursement from the indemnifying parent/guardian, who may not have sufficient funds to indemnify.

Acknowledgement of Risk Form

An acknowledgement of risk form, on the other hand, involves a minor’s parent/guardian acknowledging that there are risks inherent in the activity that the minor is participating in and agreeing to assume them. Such documents do not contain waiver or release language, but they do help to provide evidence of a participant’s awareness and conscious acceptance of risks inherent with an activity.

Whether such risk acknowledgment and acceptance is sufficient to successfully defend an action brought by an injured minor is unclear. The Supreme Court of Canada has recognized the concept of inherent risk and that an activity’s inherent risk does not give rise to liability. This suggests that such acknowledgements may be useful to defend actions where the injury in question resulted from the risk inherent in an activity, but not where the injury was caused by the operator’s negligence (See, for example, Moddejonge v. Huron County Board of Education (1972), where two children drowned on a field trip).

However, the Law Reform Commission of British Columbia has also opined that a parental acknowledgment on behalf of a minor was tantamount to imposing on the minor the wrongful acts or omissions of another party (i.e. the parent/guardian), and has further opined that any terms of a signed acknowledgment that contained such content should have no legal effect.

Key takeaways for outdoor/adventure businesses

Where does this leave an outdoor/adventure business or other operation that hosts activities for those who are, depending on the province, 18 or 19 years old and younger? Given the issue’s importance, there is a surprising lack of judicial comment on the enforceability of liability waivers signed by a minor’s parent/guardian.

Certainly, in BC it seems that such waivers are unenforceable, given the unique provision in its Infants Act. The common law in the remaining provinces is not clear, but there are certainly strong indications that such waivers would be found to violate public policy and thus be unenforceable.

Other alternatives, such as an indemnity clause or an acknowledgement and acceptance of risk form, similarly lack definitive judicial comment but seem to be of questionable effect. Only time – and a trial decision that engages these issues head on – will tell.

Despite this, there may still be some practical benefit for the use of liability waivers, indemnity clauses and/or acknowledgments signed by parents/guardians on behalf of minors. Unaware parents/guardians may labour under the mistaken belief that the documents they signed mean that they are unable to sue, making it unlikely that they will explore legal action. Conversely, aware parents/guardians (or their counsel) may not want to incur the necessary legal costs/resources given the uncertainty in the law and the risk of an adverse result.

In the end, organizations that allow minors to participate in their activities, and their insurers, must be aware of the potential risks, and realize that even the best drafted liability waiver, indemnification clause and acknowledgment of risk form may not protect them.

Ryan Morasiewicz [hyperlink to firm bio] is well versed in this area and can provide risk-management and other advice to help protect your company.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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