We've all seen variations of parental waivers for children's activities before. Parents are often asked to sign these prior to sending their kids off to sports camp, summer camp, and other activities that may involve the potential for physical injuries. In fact, waiver forms can often pop up in the news every now and then due to their usage in a variety of unusual situations, such as the time they were required for participation in a children's Easter-egg hunt.
Usually, the waiver forms look something like this:
[the business] is not liable for any injuries, loss or damage to my person or property, however caused, arising out of or in connection with my taking part in [gymnastics, summer camp, etc.] activities.
From the perspective of the business that is providing services or recreational activities to children, these forms are a way to attempt to ensure that their business is protected from lawsuits through a parental waiver of liability clause contained in the initial registration form signed by the parents of children enrolled in the program.
Most parents sign these forms without asking many questions, or by resigning themselves to the fact that they must sign the forms without much protest. However, in the event that an injury does occur, and parents look to take legal action against the business, are these parental waivers binding? If parents have signed these waivers, can they still sue for negligence?
Are waiver forms for minors legally binding in Canada?
At common law, it would appear that a parental waiver of liability clause is not enforceable or legally binding on the child's right to sue for negligence.
At law, minors are children and teenagers under the age of majority (eighteen years in Ontario). Minors lack full legal capacity to sign binding contracts. In the Manitoba Law Reform Commission (MLRC) publication, Waivers of Liability for Sporting and Recreational Injuries, it states:
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.
Similarly, the Law Reform Commission of British Columbia (LRCBC) publication, Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities, states that:
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 not in their interests. The traditional protection should remain available where it is not.
The Wong decision
Wong v. Lok's Martial Arts Centre Inc. ("Wong"), was released on October 8, 2009. The decision has offered some clarity by showing that parents cannot waive a child's right to sue for negligence in Canada.
In this case, a child had incurred an injury during a sparring session at the martial arts school. The contract signed during registration contained an extensive waiver of liability clause which clearly stated that the plaintiff and his parents were solely liable for any injuries resulting from participation.
In his decision, Mr. Justice Willcock noted that while parents do enjoy a "bundle of rights" when it comes to arranging the affairs of their children (such as determining the extent of their child's vaccinations), it was unclear from the case law cited by the defendant whether a parent's power extends so far as to be able to waive a child's right to sue for negligence.
Wong is technically limited in its impact to the province of British Columbia by virtue of Justice Woodcock's use of the Infants Act to settle the matter. There is no similar legislation in Ontario which governs how parents can legally enter a contract that impacts the rights of their children to sue in tort. However, Wong is an important decision in that it thoroughly canvasses what little case law there appears to be in Canada on the subject of whether a parent can waive a child's right to sue in negligence.
Not all forms are waiver forms
While waiver forms are very common when parents enroll their children in physical activities, not all forms are waiver forms. Parents may also encounter acknowledgement or assumption of risk forms (acknowledging both physical and legal assumptions of risk), and indemnity agreements (the parent will indemnify the provider for any legal costs or payments made pursuant to a settlement or trial judgment in favour of the child).
Why are waiver forms still used?
Despite the Wong decision, the reason that waiver forms are still commonplace and used by businesses that provide activities for children in Canada is that there may be some value in them to dissuade litigation in the first place. They also often act simply as an administrative step during registration for children's activities to acknowledge risk. However, as shown by the case law and literature in Canada that does exist in this area, they likely do not waive a child's right to sue for negligence should injury occur.
If you have any further questions about waiver forms you may be signing on behalf of your children and their legal validity, or if you are a business looking to protect yourself from legal action, please contact the disputes and litigation lawyers at Merovitz Potechin LLP.