David HayDavid Hay
One of the most common features of organized cycling events, from Tweed Rides to Gran Fondos, is the signing of a waiver by a participant before the event begins. The waiver is typically included as part of an enrollment package, and many people will sign it as a matter of routine, sometimes without reading it.
In the last 20 years, waivers and releases relating to recreational sports have exploded in popularity. In the past, the courts were very reluctant to let a waiver get in the way of the delivery of justice, but this has changed with the growth of organized recreational events and the corresponding need to protect event organizers from liability.
In the recent case of Loychuk v. Cougar Mountain Adventures Ltd., the British Columbia Court of Appeal restated the law relating to the enforceability of a waiver. The case involved an action against Cougar Mountain Adventures Ltd. brought by two individuals who were injured while zip lining with the defendant. The defendant admitted that the plaintiffs’ injuries were caused by the negligence of its employees but asserted that this did not matter because the injured parties had signed a waiver releasing the right to sue or claim compensation in the event of an accident. The waiver was a complete defense to their claims.
The plaintiffs said that the waiver was unfair, unconscionable and contrary to public policy. In the process of dismissing the plaintiffs’ claims, the court defined the essential ingredients of a valid waiver.
First, the defendant must demonstrate that the individuals knew what they were signing and were in agreement with its contents. Second, the waiver must be worded broadly enough to encompass the activity in question. Third, the waiver must not be unconscionable, in the sense that the defendant event organizer exerted undue pressure or unfairly took advantage of the signing individual.
In the event of an accident, if a cyclist is able to demonstrate that he or she did not read or understand the waiver, or that the harm occurred as a result of a risk outside of the scope of the waiver (for example, one of the cycling event organizer’s dogs attacked the cyclist) or that the waiver is deeply offensive to the rules relating to unconscionability (it strikes the judge as simply wrong), a signed waiver may be deemed unenforceable. However, this is not an easy exercise, so if you do sign a waiver and you are over 19 years old, expect it to be enforced unless the circumstances are very unusual.
David Hay is a litigation lawyer and partner at Richards Buell Sutton, LLP. He has special interest in bike injury law and can be contacted at 1-604-661-9250 or firstname.lastname@example.org.