CONSENT FORMS AND LIABILITY WAIVERS:
A DISCUSSION OF STUDENT FIELD TRIPS
FOR POST-SECONDARY INSTITUTIONS
PREPARED BY
GUILD YULE LLP
These materials were prepared by Mary Nguyen and Carla Forth, Q.C. of Guild Yule LLP,
Vancouver, September 2015.
CONSENT FORMS AND LIABILITY WAIVERS:
A DISCUSSION OF STUDENT FIELD TRIPS
FOR POST-SECONDARY INSTITUTIONS
INTRODUCTION
Field trips can promote various aspects of student development by providing an active
learning environment. Field trips can also present challenges to organizing parties,
particularly educational institutions, and frequently raise questions about liability. What
duty is owed to students on field trips? What should go into the waiver? What risks must
be disclosed?
This paper is intended to provide an understanding of your organization’s potential
vulnerabilities, methods of evaluating risk, and exploring the role of waivers and
informed consent in protecting post-secondary institutions.
PROBLEM: FINDING OF NEGLIGENCE AGAINST YOUR INSTITUTION
“Negligence” is generally defined as conduct that is culpable because it falls short of
what a reasonable person would do to protect another individual from a foreseeable risk
of harm. For someone to succeed in a claim of negligence, they must show:

A duty of care;

A breach of that duty; and

The breach caused the alleged damages.
A duty of care is a legal obligation imposed on an individual or institution requiring that
individual to adhere to a reasonable standard of care while performing or omitting any
acts that could foreseeably harm others. The standard of care is the degree of prudence
and caution required of an individual or institution in the circumstances.
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Post-secondary institutions are in the unique position of providing field trips to both adult
and infant students (under the age of 19 years). Post-secondary institutions are not legally
responsible for controlling the actions of adult students, nor for ensuring their safety at all
times. However, they do have a common law and a statutory duty (under the Occupier’s
Liability Act) for providing a reasonably safe environment, and warning students of
known risks. As stated by the court in Bain v. Calgary Board of Education at paragraph
40:
Altogether apart from the relationship of teacher and student, a general
duty of care arises when there is a close enough relationship between the
parties, that reasonable people would expect that the one would take care
not to expose the other to an unreasonable risk of harm. In having regard
to what reasonable people would expect, it is useful to consider the
likelihood of injury occurring, the gravity of an injury which might occur,
and the extent of the burden that would be placed upon the Defendant in
seeking to avoid injury to the other.
Bain v. Calgary Board of Education, [1993] A.J. No. 952(QL)(Q.B.) [Bain]
The involvement of students under the age of majority is an important consideration in
assessing duty of care as they are owed a higher duty of care than adult students. Infants
are not legally expected to have the judgment and reasoning needed to assess hazards
correctly. Instead, their parents, or other responsible adults, are expected to do this for
them. Where infants are involved, the general rule set down by the Supreme Court of
Canada in Myers v. Peel County Board of Education is that the obligation of the school
administrators is equivalent to that of a reasonable and prudent parent with equivalent
knowledge.
Myers v. Peel County Board of Education, (1981), 123 D.L.R. (3d) 1 (S.C.C.)
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This can be problematic in a post-secondary institution setting because the premises,
activities and level of supervision are often designed for adults, not infants. As seen in
Murao v. Blackcomb Enterprises Limited Partnership, a case involving a school ski trip
that left a 17 year-old student a quadriplegic, even the partial finding of liability on the
part of a school (15% liable) can incur a judgment of over half a million dollars.
Murao v. Blackcomb Enterprises Limited Partnership,
[2005] B.C.J. No. 113(QL)(C.A.) [Murao]
RESPONSE TO PROBLEM: WAIVERS/CONSENT FORMS
Waivers and consent forms can operate as a full defence against personal injury claims
based in negligence. By signing a waiver, participants waive their ability to sue the postsecondary institution in the event of an injury. Through a signed consent form, a
participant can be said to have consented to the risks associated with the activity. In the
event of an injury and subsequent litigation, the court will consider whether the consent
form reasonably provided the participants with an understanding of the activity and the
risks associated with that activity.
The following is a review of the law pertaining to both waivers and consent forms.
WAIVERS
A waiver can serve as a full defence to a claim in tort. In Dyck v. Manitoba Snowmobile
Association Inc., the plaintiff was injured during a snowmobile race staged by the
defendant association. The association relied upon the competition membership
application signed by the plaintiff which purported to release the association from
liability. The documents made no express mention of injuries resulting from the
negligence, but the entry form signed by the plaintiff set forth his agreement to save
harmless and indemnify the association “from all liability, howsoever caused, in
connection with taking part in the race notwithstanding that the same may have
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contributed to or been occasioned by their negligence.” The Supreme Court of Canada
confirmed that while the association had been negligent, it was exonerated from liability
by the waiver clause in the entry form.
Dyck v. Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589
Generally, once a party signs a waiver, it is irrelevant whether he or she had read and
understood the document prior to signing it. In Karroll v. Silver Star Mountain Resorts
Ltd., the plaintiff sustained a broken leg while participating in a downhill skiing
competition. The plaintiff argued she was not bound by the waiver she signed prior to the
race since she had been given neither adequate notice of its content nor sufficient
opportunity to read and understand it. McLachlin C.J.S.C. (as she then was) stated the
plaintiff was bound by the release unless she could establish:
1. the signature on the contract was signed by mistake, without knowledge of its
meaning (known by the Latin maxim, non est factum),
2. fraud or misrepresentation, or
3. that in the circumstances a reasonable person would have known the plaintiff
did not intend to agree to the release signed, and in these circumstances the
defendants failed to take reasonable steps to bring the contents of the release
to the plaintiff’s attention.
The non-exhaustive list of relevant factors for when the duty arises to take reasonable
steps to advise of the exclusion included:
1. the effect of the exclusion clause in relation to the nature of the contract;
2. the length and format of the contract; and
3. the time available for reading and understanding the exclusive clause.
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Madam Justice McLachlin concluded that the plaintiff was not able to fit her situation in
any of the three exceptions. The evidence failed to establish that the plaintiff did not have
sufficient time to read the documents before signing it.
Karroll v. Silver Star Mountain Resorts Ltd, [1988] B.C.J. No. 2266 (QL) (S.C.)
For the format of the release, the courts are quick to scrutinize the print size of waiver
clauses. In Kettunen v. Sicamous Fireman’s Club, the plaintiff was injured while
attending a mud bog race sponsored by the defendant club. The day before the accident,
the plaintiff signed a waiver indemnifying the defendant for any damages suffered at the
race. The court found that the indemnification clause was set out in small print and was
not brought to her attention.
Kettunen v. Sicamous Fireman’s Club, [1999] B.C.J. No. 1930 (QL) (S.C.),
In contrast, the court in Mayer v. Big White Ski Resort, upheld a waiver that stated in
capital letters, in heavy black type:
BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL
RIGHTS, INCLUDING THE RIGHT TO SUE
PLEASE READ CAREFULLY!
The court further noted that above the plaintiff’s signature were the words:
I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND I AM
AWARE THAT BY SIGNING THIS AGREMENT I AM WAIVING CERTAIN
LEGAL RIGHTS WHICH I OR MY HEIRS, NEXT OF KIN, EXECTUORS,
ADMINISTRATORS
AND
ASSIGNS
MAY
HAVE
AGAINST
THE
RELEASEES.
Mayer v. Big White Ski Resort, [1997] B.C.J. No.725 (QL) (S.C.) [Mayer]
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affirmed by Court of Appeal [1998] B.C.J. No. 2155 (C.A.)
Caution should be given to waiver clauses attached to activity applications rather than
providing separate waiver forms. Participants will have an easier time asserting that they
were unaware of the nature of the document and had no intention of waiving their rights
where the application form is lumped with a waiver. It will then be up to the event
organizer to establish that notice of the waiver was brought to the participant’s attention.
For example, in Crocker v. Sundance Northwest Resorts Ltd., the intoxicated plaintiff
was badly injured during an inner tube race. He had earlier signed a release that purported
to release the defendant “from any and all damages sustained in consequence of loss,
injury or damage to any person or property, and from any or all actions, causes of
actions, claims and demands of any nature…” The release was located in the race entry
form. The trial judge found that the waiver provision had not been drawn to the plaintiff’s
attention and that he had not known of its existence. The plaintiff believed that he was
simply signing an entry form. The Supreme Court of Canada held that the defendant
could not rely on the waiver clause.
Crocker v. Sundance Northwest Resorts Ltd., [1988] S.C.J. No. 60(QL)
Similarly, the recent decision of Parker v. Ingalls (c.o.b. Pure Self Defence Studios)
illustrates the court’s regard for “hidden” waivers. At paragraph 71, Madam Justice
Allan stated:
The liability waiver itself constitutes a very small portion of the 2002
document. It appears in extremely small print with no emphasis to direct
the reader to its importance or to the fact that he or she is giving up all
rights to sue the Studio. It does not refer to negligence. There is a space
for the student to place his or signature. There is no provision that draws
the student’s attention to the fact that by signing, he or she is waiving any
legal rights.
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Parker v. Ingalls (c.o.b. Pure Self Defence Studios),
[2006] B.C.J. No. 1394 (QL) (S.C.) [Parker]
It is important to ensure that the name of the party relying on the waiver is explicitly
stated in the waiver. In Quick v. Jericho Tennis Club, the plaintiff was injured during a
tennis tournament held at Jericho Tennis Club. Every participant was obliged to fill in an
entry form which formed part of a one page, double-sided brochure and contained the
following paragraph:
Waiver of Claims
All players entering Grand Prix Circuit Tournaments
agree, as a condition of their entry, that for
themselves, their executors, administrators, heirs and
personal representatives, all claims of any kind, nature
and description are waived, including past, present or
future claims for injuries, if any, sustained in
travelling to or from or participating in any Grand Prix
tournament or against Tennis Canada, TBC, USTA & PNWTA or
any other section, the SunLife Prince Grand Prix Circuit
Committee, Tournament Committees and all Tournament and
Circuit Sponsors.
The tennis club sought to rely on the above waiver to preclude the plaintiff’s action. The
court held this waiver was insufficient to waive liability since it was unclear to the
plaintiff that he was waiving any claims against the tennis club, since the tennis club was
not specifically named.
Quick v. Jericho Tennis Club, [1998] B.C.J. No. 1149 (QL) (S.C.)
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The terms of the waiver must be broad enough to include the assumed negligence of the
defendant. In Mayer, the plaintiff was injured while skiing when he collided with a
snowmobile operated by an employee of the defendant. He had executed a release as part
of the process to obtain a ski pass. The release read as follows:
1.
TO WAIVE ANY AND ALL CLAIMS that I have or may in the
future have against BIG WHITE SKI RESORT LTD., and its
directors, officers, employees, guides and representatives (all of
whom are hereinafter collectively referred to as "the Releasees");
2.
TO RELEASE THE RELEASEES from any and all liability for any
loss, damage, injury or expense that I may suffer, or that my next of
kin may suffer as a result of my use of or my presence on the skiing
facilities
due
to
any
cause
whatsoever,
INCLUDING
NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF
ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING
ANY DUTY OF CARE OWED UNDER THE OCCUPIERS
LIABILITY ACT, R.S.B.C. 1979, C. 303, ON THE PART OF THE
RELEASEES.
The court found it usual and customary to find snowmobiles on the mountain. It was also
clear on the evidence that the plaintiff was very familiar with the presence and operation
of snowmobiles. Accordingly, the court held that the alleged negligence came within the
scope of the release, which was binding.
The inclusion of ‘negligence’ in the waiver is recommended, but not explicitly required if
the wording implies inclusion of negligent conduct. In Clarke v. Action Driving School
Ltd., the key words of the waiver were:
release…from all responsibility of property damage, bodily injury,
liability, cost and expenses and claims of every nature and kind howsoever
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arising from or in consequence of such students participation in any of the
training courses conducted by the school…
Though the clause did not contain any explicit reference to the term “negligence”, the
court was satisfied that the use of the words “howsoever arising” in the context included
liability for negligence.
Clarke v. Action Driving School Ltd, [1996] B.C.J. No. 953 (QL) (S.C.)
However, waivers will be strictly construed by a court against the party who wrote it and
required its execution. In Smith v. Horizon Aero Sports Ltd., the defendants sought to
rely on a “hold harmless’ agreement whereby students undertook to “expressly waive any
claim” in relation to parachute jumping. It purported to constitute a waiver and release for
any injury to person or property or any liability arising from jumping. The court
concluded the wording could only account for accidents arising from, for example, the
failure of equipment. The wording could not be referable to the defendant’s neglect to do
the very thing which they undertook to do, namely to use reasonable care to teach and
supervise the plaintiff in jumping safely.
Smith v. Horizon Aero Sports Ltd., (1981) B.C.J. No. 1861 (QL) (S.C.)
The language skills and education of the signer will also be a consideration. In Simpson
v. Nahanni River Adventures, the court upheld a waiver in a claim regarding the death of
an adult male who was carried away suddenly by a flash flood during a wilderness
adventure tour. The court found the deceased was a literate and highly educated person,
and found that he had undoubtedly read the document. Further, the court noted the waiver
stated:
If you have any questions regarding any of the contents please contact us
prior to signing the document.
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The court considered this an invitation to contact the defendant in the event there was any
concern.
Simpson v. Nahanni River Adventures Ltd., [1997] Y.J. No. 74(QL) (S.C.) [Simpson]
A similar view was given in Clarke where the plaintiff argued the waiver was not
brought to his attention because he did not have ample opportunity to consider its legal
implications. At paragraph 7, the court stated:
The plaintiff here is a 53-year-old professional. There is no suggestion that
he is deficient in education or language skills that would prevent him from
understanding the document that he signed. He did not ask any questions
about its meaning or say anything that would lead the defendant’s
representative to conclude he was questioning its terms. The location of
his signature below the waiver with the added formality of his signature
being witnessed should have reasonably impressed upon him the
significance of the document, particularly as he was also required to
separately sign the application for training on the flip-side of the
document. The plaintiff could have taken the opportunity to read the
document carefully before he signed it, had he wished to do so.
Greater care must be given to drawing waiver provisions to the attention of foreign
tourists. In Greeven v. Blackcomb Skiing Enterprises Ltd, the court concluded that a
ticket containing an exclusion on the back had not been sufficiently drawn to the attention
of the plaintiff. Yellow notice boards near the ticket booths and on the ticket itself set out
the waiver exclusion. Nevertheless the court highlighted the fact the plaintiff was a tourist
from England who had no prior experience skiing in Canada.
Greeven v. Blackcomb Skiing Enterprises Ltd.,
[1994] B.C.J. No. 2056 (QL) (S.C.)
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UNCONSCIONABILITY OF RELEASES
At law, a competent adult signing a release is bound by the documents’ terms unless he
she can show that the release was unconscionable or invalid for other reasons. Injured
participants have on a number of occasions, argued that a particular exclusion clause or
release ought to be unenforceable because giving effect to such a clause would be unfair,
unreasonable, or offensive to community standards of commercial morality.
In Loychuck v. Cougar Mountain Adventures Ltd., 2011 BCSC 193, [Cougar] two
injured plaintiffs argued that in the context of a hazardous activity, a commercial operator
or institution should not be able to exclude or limit its liability for personal injury or
death with respect to operator-controlled incidents. The plaintiffs submitted that courts
should draw a distinction between the use of releases in activities where participants
control the activity such as skiing and activities where the operator controls the activity
such as ziplining.
Cougar was a case that involved two plaintiffs who went on a zipline tour operated by
the defendant, Cougar Mountain Adventures Ltd. in Whistler, BC. The plaintiffs were
injured when they collided into each other on the zipline. As a result of
miscommunication, two Cougar guides had mistimed the plaintiffs’ descent, sending one
down the zipline while the other was still suspended on the line. The second plaintiff had
no ability to stop herself and slammed into the first plaintiff at high speed. Cougar
admitted that its employees’ negligence was the sole cause of the plaintiffs’ accident.
The defendant brought a summary trial, seeking a dismissal of the plaintiffs’ action on
the basis that the waivers signed by each of them, provided it with a complete defence to
the action.
The release in Cougar was a one-page document. At the tope of the release was a box in
large print which read:
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RELEASE
OF
LIABILITY,
WAIVER
OF
CLAIMS
AND
ASSUMPTION OF RISK AGREEMENT
(hereinafter referred to as the “Release Agreement”)
BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN
LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM
COMPENSATION FOLLOWING AN ACCIDENT
PLEASE READ CAREFULLY!
Participants were required to sign the release immediately adjacent to the above warning.
There were fields that required the participants to fill in their name, address and weight.
The body of the release set out a description of the zipline tour as well as a heading called
“Assumption of Risks”. The heading set out in some detail the risks and hazards involved
in ziplining including collision with other participants and specifically, negligence of
zipline guides.
The release also contained a specific waiver and release of all claims worded in the
following way:
In consideration of the RELEASEES agreeing to my participation in Eco
Activities and permitting my use of their equipment, parking and other
facilities, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, I hereby agree as follows:
TO WAIVE ANY AND ALL CLAIMS that I have or may in the future
have against the RELEASEES AND TO RELEASE THE RELEASEES
from any and all liability for any loss, damage, expense or injury,
including death, that I may suffer or that my next of kin may suffer, as a
result of my participation in Eco Activities DUE TO ANY CAUSE
WHATSOEVER,
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INCLUDING
NEGLIGENCE,
BREACH
OF
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CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY
OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE
OCCUPIERS LIABILITY ACT, R.S.B.C. 1996, C. 337 ON THE PART
OF THE RELEASEES, AND FURTHER INCLUDING THE FAILURE
ON THE PART OF THE RELEASEES TO TAKE REASONABLE
STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS,
DANGERS AND HAZARDS OF PARTICIPATING IN THE ECO
ACTIVITIES REFERRED TO ABOVE.
The release required the signature of the participant as well as a witness.
The trial judge found that the waiver was enforceable and dismissed the plaintiffs’ action.
In doing so, he refused to accept the plaintiff’s argument that the law relating to waivers
of liability ought to be limited to activities in which the participants have some measure
of control over the risks they are asked to assume. He found that the release and the
circumstances under which they were signed were not unconscionable. The trial judge
found that “there was nothing in the circumstances that would lead Cougar to conclude
that the plaintiffs did not intend to agree to what they signed”. The plaintiffs had
voluntarily participated in ziplining, knowing that they had to sign the release in order to
participate. The plaintiffs’ appealed.
On appeal, Mr. Justice Goepel of the BC Court of Appeal upheld the trial judge’s
decision. One of the appellant’s main grounds of appeal was that the release was
unconscionable in that it asked participants to release the operator of a high-risk facility
for the operator’s own negligence. In support of their position, the appellants referenced
the BC Report in which the Law Reform Commission recommended, among other things,
that a commercial recreational operator should not be able to exclude or limit its liability
for personal injury or death with respect to operator-controlled incidents. Mr. Justice
Goepel noted that although the BC Report had been conducted in response to the
Attorney General’s request that the Law Reform Commission examine the law
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concerning tort liabilities of commercial recreational operators, the legislature had not
take any steps to implement those recommendations.
The question of whether releases should be limited in the manner recommended by the
Law Reform Commission was a question of public policy. Mr. Justice Goepel concluded
that until the legislature intervened to implement the recommendations of the Law
Reform Commission, there was nothing at law or in the circumstances rendering the
release unconscionable. The issue of whether the release was “unconscionable” required
one to look for evidence of duress coercion or unfair advantage resulting from economic
or psychological need. There was no such evidence in this case.
The plaintiff’s application for leave to appeal to the Supreme Court of Canada was
denied.
A release and waiver of liability is not unconscionable simply because the risks that the
participant is asked to assume are within the operator’s control and beyond that of the
participant. Cougar confirms that where a properly drafted release and waiver of liability
is brought to the participant’s attention, the participant signing that document is bound by
its terms even if the risks he or she is asked to assume are wholly within the operator’s
control.
UNDERAGE STUDENT WAIVERS
Waivers cannot be used when dealing with participants under the age of 19. At law,
persons under the age of majority do not have the authority or capacity to enter into a
legal contract. Although many institutions have sought to get around this by getting
parents to sign a “parental waiver” waiving their children’s right to sue, such a waiver is
not legally effective. In BC, the Infants Act, R.S.B.C. 1993 c. 333, and case law prohibits
parents and legal guardians from entering into agreements that waive their children’s right to
sue. The rationale behind this is that minors or parents on behalf of minors can only enter
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into contracts that are to their benefit. A waiver of their right to sue for negligence is not in
the child’s best interest and is therefore, unenforceable as against the minor.
The legal consequences of a parental waiver were considered in the case of Wong v. Lok’s
Martial Arts Centre Inc., 2009 BCSC 1385 [Wong]. That was a case involving a minor
who was injured in a sparring match during a martial arts lesson at the defendant school. At
the time of enrollment, the child’s mother signed a waiver releasing the defendant school, its
agents and employees from liability for any injuries that could result from the school’s
negligence.
In Wong, a claim was brought on behalf of the 12-year-old child. The child, among other
things, alleged that the defendant company was “negligent in failing to take preventative
measures to ensure that injuries did not occur in the course of sparring matches by taking
such measures as screening participants, instructing participants, requiring suitable
protective gear or carefully supervising matches…” The defendant school sought to have
the claim dismissed, relying on the waiver signed by the mother on the child’s behalf.
The main issue before the court was whether a child’s parent could effectively execute a
pre-tort release on behalf of a minor. In holding that the waiver was not enforceable as
against the child, Mr. Justice Willcock stated that:
[55] The release is a simple document. It clearly states that the club shall
not be liable for injuries, damages, actions or causes of actions
whatsoever, including without limitation those resulting from acts of
negligence on the part of the Hapkido school…
…
[59] I have considered the defendant’s submissions that the Court should
not limit the full range of parental authority. I am also cognizant of the
policy reasons for permitting parents to sign limited releases…[60] I am of
the opinion, however, reading the Infants Act as a whole that the
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legislature intended the Act to establish the sole means of creating
contractual obligations that bind minors. In coming to this conclusion I
place some weight upon the fact that the rationale for prohibiting parents
and guardians from releasing infants’ claims after a cause of action has
arisen applies with some force to pre-tort releases as well.
[61] The Act 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.
The Defendant’s application is therefore dismissed.
PARENTAL INDEMNIFICATION
Wong leaves open the question of whether an organization could overcome the inefficacy of
parental waivers signed in connection with a minor’s involvement in sports or recreational
activities by asking parents to sign an indemnity agreement. An indemnity agreement
essentially provides that a parent, in signing, agrees to indemnify the organization and its
operators for any legal costs or payments made in favour of the child pursuant to a trial or
settlement.
However, although the Wong decision did not expressly deal with the issue of parental
indemnification, it is important to note that section 40(3) of the Infants Act may operate to
prohibit parents from agreeing to indemnify the organization in these circumstances. Section
40 provides that:
(1.1) A guardian may make a binding agreement for an infant,
(a) if the agreement involves a consideration not
greater than $10 000, with the consent of the Public
Guardian and Trustee, or
(b) in a case other than one referred to in
paragraph (a), with the approval of the Court by
order made on the petition of a party to the
agreement.
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…
(3) An agreement to indemnify a person as a result of the person making
an agreement with another person for an infant is void unless consented to
or approved under subsection (1.1).
Without deciding the issue of whether parental indemnity agreements is enforceable, Mr.
Justice Willcock referred to a 1994 report published by the Law Reform Commission of BC
titled Report on Recreational Injuries: Liability and Waivers in Commercial Leisure
Activities (the “BC Report”) in which the Commission lamented that:
The practice of extracting agreements from parents to indemnify operators
in respect of legal actions on behalf of their children also contravenes the
public policy of protecting minors' interests. They are clearly intended to
discourage a parent from pursuing a child's rights. If there is doubt about
the unenforceability of such indemnities, it should be removed…
While not all opinions and recommendations expressed in the BC Report reflect the
current laws in BC, Wong suggests that they will likely carry some weight in future cases
concerning parental waivers and indemnity. The BC Report summarized the BC Law
Reform Commission’s view on the law on minors and waivers in the following way:
The widespread practice of taking signed waivers in connection with
minors' participation in various sports activities raises a number of
questions. Is it to act as a deterrent, and so aid in controlling the cost of
insurance? Since they are unenforceable under the Infants Act, they could
do so only by deceiving parents into thinking they are barred from
bringing an action on behalf of a negligently injured child.
Minors should not be prejudiced by their own or their parents' naiveté.
This is the historic policy of the law, and it is still sound. Modern
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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.
If the real purpose is to obtain evidence of the acceptance of inherent risk
by minors and their legal guardians, this can be done without the
stratagem of an unenforceable waiver. It can be accomplished by taking a
signed acknowledgment by the minor and the parents that they recognize
the existence of inherent risks in the activity and agree to assume them.
Such an acknowledgment is unobjectionable, as long as it contains no
waiver or release language and no expanded, self-serving definition of
inherent risk. Expanding on the common law notion of inherent risk in an
acknowledgment-of-risk form for minors would impose on them the
burden of others' wrongful acts and omissions. Any terms in an
acknowledgment form which do so should have no legal effect.
…
Arguments for giving binding effect to waivers by minors or their parents
based on the fact that the volenti defence can be raised against a minor are
unconvincing. That defence usually succeeds today only where the
plaintiff's conduct is imbued with illegality or is unusually foolhardy.
Treating a minor who engages in obviously dangerous conduct as being
conscious of the natural consequences of his or her acts is not analogous to
holding the minor to the terms of a binding legal document, the contents of
which may be deceptive even to adults.
Until further judicial or legislative direction is given on this issue, it is reasonable
to assume that organizations may not necessarily be able to sidestep the parental
waiver issue by forcing parents to execute an indemnification agreement.
PUBLIC POLICY CONSIDERATIONS
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Although courts will typically uphold a release and waiver of liability freely
executed by the participant, there can be instances in which a court may find that
the public policy interests at play trump the otherwise valid release and waiver of
liability.
The tension surrounding public policy considerations highlight the
different societal values that the courts are often asked to reconcile.
On the one hand, there is a need to espouse commercial certainty. The operation
and viability of an educational institution are dependent on the institution’s ability
to manage risks through the use of waivers and releases. The institution needs to
know that courts will not interfere with freedom of contract by striking down
agreements that its participants have freely and voluntarily entered into.
On the other hand, there is a need to ensure that injured participants are not barred
from recovering where there is a relevant public policy that overrides the public’s
interest in the strict enforcement of contracts.
In the more recent case of Niedermeyer v Charlton, 2014 BCCA 165
[Niedermeyer], the BC Court of Appeal confirmed that public policy interests are
not closed to judicial consideration when courts are asked to assess the validity of
a release or waiver. The majority’s decision in Niedermeyer has the potential of
expanding the types of clauses which may in the future, be recognized as being
contrary to public policy.
Niedermeyer was a case involving a visiting teacher who had been injured when
the bus in which she was travelling with her students went off the road and down
a hill, causing her to suffer significant personal injuries. The bus, operated by
Ziptrek Ecotours, was returning Ms. Niedermeyer to Whistler following a zipline
tour in Blackcomb.
Ziptrek required all prospective participants to sign a release before being able to
participate in any aspect of the zipline activities. Although the release did not
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contain any specific discussion on the mode of transportation provided by Ziptrek
to and from the site of the various activities it offered as part of the tour, it did
contain the following wording under the heading of “Definitions”:
“In this
Agreement, the term "Adventure Activities" shall include all activities, events or
services provided, arranged, organized, conducted, sponsored or authorized by
THE OPERATORS and shall include, but are not limited to use of ziplines,
suspension bridges; climbing, rappelling; hiking; sightseeing: snow shoeing;
travel to and from the tour areas; back country travel; orientation and instructional
courses, seminars and sessions; and other such activities, events and services in
any way connected with or related to those activities.
Under the “Assumption of Risks” heading, the release stated that:
“I am aware that Adventure Activities involve many risks, dangers and
hazards including but not limited to: changing weather conditions; falling
trees, limbs, and ice; falling from platforms, cables and bridges; shock,
stress or other injury to the body; encounters with wildlife including bears
and cougars; equipment malfunction including breakage of cables, tethers,
pulleys and harnesses; collision with trees, vans, snow cats, snowmobiles,
or other vehicles, equipment or structures: collision with other participants
or guides; my failure to remain within designated areas; becoming lost or
separated from guides or other participants; negligence of other
participants or guides: and NEGLIGENCE ON THE PART OF THE
RELEASEES, INCLUDING THE FAILURE ON THE PART OF THE
RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE
RISKS, DANGERS AND HAZARDS OF ADVENTURE ACTIVITIES. I
am also aware that these risks, dangers and hazards referred to above exist
on terrain that may be uncontrolled, unmarked and not inspected. I AM
AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED
WITH ADVENTURE ACTIVITIES AND I FREELY ACCEPT AND
FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS
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AND THE POSSIBILITY OF PERSONAL INJURY, DEATH,
PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.”
(emphasis added)
Ziptrek brought a summary trial, arguing that notwithstanding the admitted negligence of
their employee, the driver of the van, the signed release and waiver operated as a
complete defence to Ms. Niedermeyer’ s claim. The trial judge agreed with Ziptrek’s
submission and dismissed Ms. Niedermeyer’ s action.
On appeal before a three-judge panel at the BC Court of Appeal, the plaintiff argued,
among other things that the summary trial judge had erred in finding that Ziptrek’s
release and waiver was not contrary to public policy. In a split decision, two of the three
judges held that although the waiver and release was otherwise valid, public policy
negated Ziptrek’s ability to contract out of liability for damages for personal injuries
suffered in a motor vehicle accident.
Writing for the majority, Madam Justice Garson made extensive reference to BC’s
statutory surrounding universal motor vehicle insurance, concluding that the enactment of
such a scheme was a “strong indication” that that the legislature intended the scheme to
override the freedom of contract.
In dissent, Mr. Justice Hinkson [as he then was] agreed with the summary trial judge,
concluding that the jurisprudence did not support an expanded definition of public policy.
He did not share the majority’s view that courts should interfere with agreements entered
into my competent adults simply because the agreement is contrary to the nature and
purpose of an existing statutory scheme. Mr. Justice Hinkson observed that there was no
legislation prohibiting the parties from contracting out of the statutory scheme requiring
compulsory vehicle insurance. He went on to state that had the legislature intended to
prohibit the ability of parties to contract out of motor vehicle insurance, it would have
expressly stated so in the Insurance (Vehicle) Act.
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Although Madam Justice Garson was clear that parties seeking to be relieved of an
otherwise valid exclusionary have a high threshold to meet, Niedermeyer reminds us that
strong public policy arguments are capable of defeating even the most tightly worded and
comprehensive releases. In other words, while the law will generally weigh in favour of
enforcement of contracts, there may be circumstances where other societal interests
outweigh the values of commercial certainty and stability.
In summary, the following principles are derived from the stated case law:
1. A waiver can serve as a full defence to a claim in tort.
2. Generally, once a party signs a document limiting liability, it is irrelevant whether
he or she had read and understood the document prior to signing it.
3. A waiver applies unless it is established:
a. the signature on the contract was signed by mistake, without knowledge of
its meaning (non est factum);
b. fraud or misrepresentation; or
c. That in the circumstances a reasonable person would have known the
plaintiff did not intend to agree to the release signed, and in these
circumstances the defendants failed to take reasonable steps to bring the
contents of the release to the plaintiff’s attention.
4. The factors to consider in respect to the duty on the party to take reasonable steps
to give notice of the exclusion:
a. the effect of the exclusion clause in relation to the nature of the contract;
b. the length and format of the contract, including print size and the location
of the waiver in the contract;
c. the time available for reading and understanding; and
d. literacy level, experience and education of the participant.
5. A waiver must state the party intending to rely upon the waiver.
6. The terms of the waiver must to be broad enough to include the assumed
negligence of the defendant.
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7. Waivers do not apply to infants (under 19 years old in BC), even where the parent
has signed on their behalf.
8. Even the most air-tight releases are susceptible to challenges on the grounds of
public policy.
9. The court has residual power to decline enforcement of a waiver where there is a
public policy reason outweighing the freedom to contract.
CONSENT FORMS
Consent forms are useful in ensuring that participants (and their parents in the case of
infants) understand the risks involved and, where necessary, they provide accurate
information needed to obtain suitable equipment or transportation. The consent forms
should clearly indicate that the participants are agreeing that they have read the form and
understood its contents.
Often, the consent form and waiver are embodied in the same document. In Simpson, the
application and waiver for inclusion in the wilderness tour contained the following
consent clause:
I understand that wilderness canoe and raft tripping involves certain
dangers, not all of which can be listed here. Among the more obvious and
frequent are:
...
…
2.
Hazards related to travel in
and on lakes and rivers
3.
Unfamiliar country, where the participant may become lost, get off
route or be separated from the rest of the party
The plaintiff argued that when she and her husband signed the application, they agreed to
accept certain risks; that they did not agree to accept the risk of being caught in a flash
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flood; and that the defendants ought to have known of the risk and advised the plaintiff
and her husband before the trip. The court disagreed stating:
I do not find it surprising or less foreseeable, but rather find it to be
something which even the casual hiker might be aware of, that a water
course whose walls constricted the flow of water would on the occasion of
increased flow present the possibility of a flash flood. I would find this to
be no more surprising than the risk a person might run by walking under a
palm tree, that a palm nut might release from the tree and strike one's
head. In other words, I don't find this risk so remote that it should be
taken to be outside the scope of the totality of the document in question….
…Mr. Spook clearly agreed to accept a wide scope of risk including the
risk of an occurrence, which caused his death. …I find that hiking in the
areas of creeks with steep banks, obviously and clearly, carries with it the
risk of increased water pressure in the event of increased water supply to
the narrowed water course.
In Parker the application form contained a consent clause requiring the plaintiff to accept
all risk “while participating in activities or instructions sponsored by the defendant,
martial arts studio.” The plaintiff signed the form. During a demonstration of a “shootfighting” move and countermove, the plaintiff was injured by the instructor. The court
concluded the plaintiff did not accept such a risk, stating at paragraph 72:
In my opinion, Mr. Parker, by engaging in shoot-fighting lessons
accepted certain risks of injury but he did not accept the risk of injury at
the hands of his instructor whom he trusted not to harm him. It is
reasonable for Mr. Ingalls to seek a waiver from accidents occurring in
the case of a student injuring himself as a result of falling or doing a
move incorrectly, or being injured by another student in the course of an
exercise. However, it is not reasonable for Mr. Ingalls to seek to exclude
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himself from his own negligence where he is conducting a
demonstration in which he has complete control over the safety of the
student. Mr. Parker was not asked to consent that risk and he did not do
so.
The Ontario decision of Thomas v. Hamilton Board of Education is a good example of a
consent form assisting in the defence of a school. The court dismissed the action,
notwithstanding the fact that the student became a quadriplegic following an improperly
executed tackle. The comments of the trial court demonstrate the goal of an effective
consent form:
In 1981, the Board obtained consent from Jeff’s mother to permit him to
participate in all athletic endeavors at the school and also obtained a
doctor’s certificate stating that he was fit to participate. In September of
1992 his mother also signed a form consenting to his participating in
school athletics. The family was predisposed to sports and was not
preoccupied with children getting hurt. His mother knew that football
was dangerous and could involve broken leg and serious injuries but had
no knowledge or contemplation that such a devastating injury as
occurred could or would happen to Jeff. Jeff himself stated that he knew
he could injure his neck.
…I find that Jeff and his mother were normal, careful and prudent
persons and consented to the normal risks of the game. The risk of such
injury was so small that it did not require to be specifically mentioned.
The consent in itself does not absolve the Board because if the Board
knew of, or had reason to believe that there were dangers involved that a
reasonable parent would not know, or that Jeff was the subject of
particular risk, then as a prudent and careful parent it should not have
permitted him to participate in the sport.
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Thomas v. Hamilton Board [1990] O.J No 147(QL) (Ont. Ct Justice)
A consent form will have little use if the activity in questions alters significantly. In Bain
a shop teacher took five Grade 11 boys on a school-sponsored overnight forestry products
tour. The supervising teacher had prepared a detailed agenda, setting out the boys’
activities during the trip. This had been sent home to the parents. The parents authorized
their sons to attend the trip as planned. During the trip, rather than seeing a movie as
scheduled, the attending teacher allowed the students to go on an unscheduled,
unsupervised evening hike near their campsite. The court found liability against the
school stating:
There was an agenda for the students’ activities on the forestry tour. It did
not include mountain climbing. That agenda was the basis for the School
Board approving the off-campus activity, and it was the basis upon which
the Plaintiff’s mother signed the School Board form allowing the Plaintiff
to participate. It was not an outdoor recreation event. When the Defendant
was called upon to give his permission for the mountain climb, there was
placed upon him a high duty of care because the proposal changed
fundamentally the nature of the program in which the students would be
involved, and very greatly increased the risk of their coming to harm.
The point of the signed consent form, therefore, is to demonstrate that the participant or
their parent understood the nature of the activity and the inherent risk involved. If the
actual trip or activity is carried out in accordance with the participant’s general
understanding, then the signed consent forms will help to demonstrate that the organizing
defendant acted in a reasonable manner in carrying out the trip.
When properly used, waivers and consent forms can significantly reduce the risk of
liability exposure. It is critical to identify and communicate to the participant the risks of
the field trip in question.
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IDENTIFYING AND REDUCING RISKS
The best and most obvious way to avoid field trip liability is to avoid accidents. Good
safety practices are the most effective means of liability prevention. However, many field
research and educational activities involve risks that cannot be controlled, even with the
most prudent planning and management. Hence, field trips must be carefully considered
from inception to execution in order to identify and reduce exposure to risks.
POLICY AND PRACTICAL CONSIDERATIONS
Consideration of field trips must be assessed at both a policy and practical level.
POLICY
The policies involved ought to having a formalized process including:

Vision statement;

Educational objectives;

Policies for such things as risk tolerance and staffing;

Operating guidelines (eg. decision-making criteria, field trip plans,
communication material, requirement of waivers/consent forms, instructor
protocols, standard operating procedures, and field trip cancellation policies);

Risk management and emergency response plans;

Differences in curricular and non-curricular goals and objectives; and

Communication to faculty and staff.
This last point on communication is crucial. Frequently, well-considered policies and
procedures are in place, but sometimes these policies and procedures are not kept current
and are not well disseminated to faculty and staff. If there is a written policy or manual in
place which applies to the impugned activity, the Court will review the evidence to
determine whether the school has complied with its own manuals. This issue arose in
Murao where the teachers of the school district were unaware of the School District’s
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policy on field trips. From a risk management perspective, we recommend that
administrators ensure that policies exist, and that organizers are aware of, and comply
with, such policies.
A further challenge for post-secondary institutions is its relationship with student unions
and other student organizations arranging field trips separate from academic-based field
trips. For these organizations, we suggest ensuring the policies are understood and
followed, or require acknowledgement that such field trips are not under the purview or
responsibility of the particular post-secondary institution. To be safe, post-secondary
institutions ought to ensure policies are followed with any student-related field trip which
could be considered in the control of that institution.
PRACTICAL
The practical aspect of assessing field trip planning flows from the policies to the specific
organization of a particular field trip. The individual assessment addresses the
considerations unique to each field trip. From this, organizers will be able to determine
whether in a given instance, a waiver or informed consent is required. The following
points should be considered.
Field Trip Activity
The activity involved in the field trip can establish whether the excursion is low or high
risk. Low-risk field trips could include activities taking place at another institution such
as a college, university, hospital, or library that has no significant health risk and is easily
accessible. Other examples include an out-of-town trip to art gallery or academic
conference.
In contrast, higher-risk field trips constitute all other activities not excluded by the above
guidelines. Such activities should require a waiver and consent form. An example of such
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a trip would be field work at industrial operations such as a factory, mining operation or
construction site. Relevant considerations include:

Have the students been trained on how to carry out the activity and avoid the danger?

Have the students been taught how to perform the activity or has the organizing
instructor provided for such teaching in advance of the trip?

How were the student trained, and by whom?

Is the equipment suitable and has its provisions been adequately arranged?
Transportation
Field trips may require the hiring of transportation to and from the location. In such
cases, the company hired to provide the transportation is viewed as an independent
contractor, and, generally speaking, the post-secondary institution would not be held
liable for any negligence on the part of the independent contractor. However, this does
not release the school from all responsibility: if the students (particularly infants) being
transported required supervision during travel and the school failed to provide same, the
school may be held liable for resulting injuries.
Transporting students will normally be covered under their ICBC policies or, in the case
of out-of-province transportation, by their respective auto insurers. Organizers should
ensure that insurance limits applicable to such drivers are sufficient (limits can be
increased at very lost costs) and that all transportation provided directly by the postsecondary institute is carried out by mature, responsible drivers and in strict compliance
with the terms of the applicable policies.
We recommend organizers follow up any questions or doubts with an insurance broker or
directly with ICBC.
“Buddy Systems”
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It is not uncommon for institutions to use a “buddy system”, allowing participants to
choose peers who will monitor one another during the course of a trip or activity. While
“buddy systems” are usually introduced to enhance the safety of participants in the course
of an activity, there are certain considerations and consequences that buddies may face in
the wake of a fatal accident.
In Kennedy v. Coe, 2014 BCSC 120 the court was asked to consider what legal duty, if
any, was owed from one “ski buddy” to another while participating in a guided heliskiing trip.
Mr. Kennedy was participating in a guided heli-skiing trip where he was paired with a
“buddy” skier, Mr. Coe. Both Mssrs. Kennedy and Coe were avid skiers. Buddies were to
monitor one another and report to the group if their buddy was missing. In a run before
lunch, Mr. Coe skied through a cut block ahead of Mr. Kennedy. When he arrived at the
bottom of the slope, Mr. Coe could not see Mr. Kennedy. He immediately alerted the lead
guide and a search for Mr. Kennedy began. The group located Mr. Kennedy within
minutes but found that he had died in a tree well and could not be successfully
resuscitated.
Mrs. Kennedy commenced an action, alleging that Mr. Coe’s failure to watch for her
husband and alert the guides sooner of his disappearance, caused her husband’s death.
On the issue of whether Mr. Coe owed Mr. Kennedy a duty in the circumstances, Mrs.
Kennedy argued that Mr. Coe’s duty fell into an established category of “volunteer”
where a duty could be imposed on parties who voluntarily undertake to do something
they are not otherwise obligated to undertake.
On the facts of the case before her, Madam Justice Fisher refused to impose a duty of
care, stating that the relationship between Mssrs. Coe and Kennedy was not sufficiently
akin to those relationships previously recognized by the courts giving rise to a duty. She
noted in her decision that the present case raised certain policy concerns surrounding the
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imposition of a duty in the circumstances. On the one hand, a finding of a duty may
encourage buddies to carry out their responsibilities more diligently. Yet on the other
hand, a finding of a duty may discourage participants from being buddies at all, rendering
the activity more unsafe.
In reaching her decision that the facts did not support an imposition of a duty, Madam
Justice Fisher noted that Mr. Coe did not create or control the risk of Mr. Kennedy falling
into the tree well. There was no evidence that Mr. Kennedy had relied on Mr. Coe to do
anything other than ski with him through the terrain. There was no specific instruction or
other mutually agreed upon role or responsibility between the buddies that could support
a duty of care.
Institutions using a “buddy system” for high-risk activities should be mindful of potential
claims brought by injured participants against other participants or “buddies”. Where a
buddy system is contemplated, institutions should ensure that participants are aware of
that such a system will be implemented and where appropriate, ensure that the waiver is
comprehensive enough to include a waiver of claims by one participant against the
negligence of another participant.
CONCLUSION
Field trips can enrich the educational experiences of students. The proper use of waivers
and consent forms can help to ensure that students receive a rewarding experience while
reducing liability risks of your organization.
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APPENDIX A: TRAVEL RESOURCES
For domestic travel, tourist centres are convenient sources of free information about
destinations in Canada (including www.hellobc.com for travel within BC).
Health Canada and Emergency Preparedness Canada provide helpful information about
planning for the unexpected. The main web site for the Government of Canada is
www.canada.gc.ca which provides convenient access to other information sites. For
example, see: http://www.passages.gc.ca/menu-en.asp for information about travel health
and quarantine. The web site for the Canadian Centre for Emergency Preparedness is
http://ww4.ccep.ca/. The Canadian Immunization Guidelines may be viewed at:
http://www.phac-aspc.gc.ca/publicat/cig-gci/index-eng.php
For international travel, there are numerous internet sites for travel-related medical advice
(e.g. trouble spots for disease outbreaks, recommendations for immunizations and general
health protection precautions).
These websites include:
www.hc-sc.gc.ca/pphb-dgspsp/tmp-pmv/
www.cdc.gov/travel
www.who.int/emc/outbreak_news
http://www.who.int/csr/disease/en/
http://healthlink.mcw.edu/travel-medicine
www.isid.org
www.istm.org
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