Legal Word of the Day – “Liability Waiver”

Proceed with Caution

Proceed with Caution

A person who participates in an activity may be required to sign a liability waiver, to acknowledge the risks and limit the liability of the service provider, business or owner. Examples include software liability clauses, model release forms and “assumption of risk” forms for sports activities.

Reckless or intentional actions cannot be disclaimed; liability for defective products cannot be waived.

In Isildar v. Rideau Diving Supply the court sets out a three-step analysis to determine the validity of a liability waiver. In the simplest terms, the criteria are: did the plaintiff know what he was signing; is the wording broad enough to include the conduct of the defendant; and is the waiver “unconscionable”?

Decisions that may — or may not — clarify the term include:

Kempf v. Nguyen, 2013 ONSC 1129 (CanLII) — 2013-02-21

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186 — 1988-06-30

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Legal Word of the Day is sponsored by: Tracey Gauley, Paralegal

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