Law Times

Law Times • January 8, 2018 Page 11 www.lawtimesnews.com Language in waivers is important Blow struck against waivers? BY DALE SMITH For Law Times A recent summary judg- ment decision in On- tario dismissed an attempt by a college police foundations course to ab- solve itself from responsibility when a student was injured after they signed a consent form. Lawyers say that while the waiver was not sufficient pro- tection for the college, the facts of the case remain particularly salient. In Anderson v. Confedera- tion College, 2017 ONSC 5791, a student was injured while running a track when he struck his head on a folded basketball hoop protruding over the track lane. The college moved for sum- mary judgment to dismiss the claim because he had signed a waiver, but the court dismissed the motion after finding fault with the waiver. Samuel Crowe, an associate with Ericksons LLP in Thun- der Bay, Ont., who acted for the plaintiff, says that the decision should give those looking to get a case thrown out or get a claim dismissed through a waiver some pause. "So much of it is going to boil down to what the actual language of the waiver was, and in this case, there was particu- lar qualifying language that framed the operative portion of the waiver," says Crowe. The first part of the waiver had qualifying language about some of the risks that the signee would assume, and the second part contained the operative portion. The defence counsel moved that negligence should have been read into the waiver and only the second portion of the waiver should have been acted on. "It would have been a total- ly unreasonable proposition, and I'm glad that Justice New- ton didn't see it that way," says Crowe. "My hope is that the courts will continue to look at waiv- ers in that fashion, and to look beyond what the actual waiver states and look at the intention of the parties." Crowe says that, during dis- coveries, his client's testimony about what he thought he was signing had important implica- tions on the motion itself. "It's hard to know how much precedent something like that would set," says Crowe. "I would certainly hope that it would continue to set the pre- cedent that just because you sign a waiver it doesn't mean that you can't bring a lawsuit if some- thing happens." Crowe emphasizes that while the facts of the case, the context and the content of the waiver were all important, he is en- couraged by the court's ruling, and he hopes that similar rea- soning will be applied to waivers in future cases. The ruling stated that the "waiver concerned the risk of harm from health related issues and physical activity such as self-defence. "It was not directed at lia- bility for defective premises as under the Occupiers' Liability Act, R.S.O. 1990, c. O-2," said the ruling. "Had the College wished to have students sign such a clear and precise waiver, the College could have required the stu- dents to do so, rather than hav- ing the instructor prepare his own document without author- ization or direction." The ruling also stated there- fore that "the language of the Consent Form is at least am- biguous." "Any ambiguity in the con- tract requires that the clause be interpreted against the College and in favour of the plaintiff," said the ruling. Edward Chadderton, a part- ner with Carroll Heyd Chown LLP in Barrie, Ont. who has another waiver case currently heading to the Ontario Court of Appeal, says that he found the decision interesting on some of the facts in the case. "The waiver itself was draft- ed by the instructor and from my reading of the decision, the college didn't even know about the waiver," says Chadderton. Chadderton noted that the parties were agreed upon which cases to use to interpret the waiver, but reasoning for the judge in not finding it a com- plete defence was more based upon how it was specifically drafted and what it was drafted to cover, as well as who it was drafted by, as opposed to an overreaching principle on waiv- ers themselves. "Good precedent and good law was followed in this case," says Crowe. FOCUS Samuel Crowe says a recent summary judgment decision should give lawyers looking to get a case thrown out or get a claim dismissed through a waiver some pause. See Precedent, page 13 The waiver itself was drafted by the instructor and from my reading of the decision, the college didn't even know about the waiver. Edward Chadderton Instrumental in conducting change. CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com Advocacy—it's what leaders do. Our dialogue over the last year with the Ministry of Community and Social Services in Ontario helped to orchestrate progressive change in the way the Ontario Disability Support Program (ODSP) treats personal injury settlements. Contact us to find out more. Untitled-6 1 2018-01-03 10:47 AM

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