A Refresher on the Fine Print: A Case Comment on Bernier v Ottawa (Ville): The Beard Winter Defender, March 2025
by Brandon Orct, Lawyer
The Ontario Superior Court’s decision of Bernier v Ottawa (Ville) highlights how a court reviews and applies signed waivers in the context of sport and recreational activities. Bernier adds to a growing body of Ontario case law addressing how and when a court will enforce waivers to exclude liability.
Facts
The plaintiff, Sandra Bernier, commenced an action after she suffered injuries while volunteering in a road cycling event on July 21, 2018. During the cycling event, Ms. Bernier fell off her bicycle while crossing an intersection with railroad tracks. As a result of her injuries, her children also commenced claims under the Family Law Act.
The cycling event was organized by the defendants, GranFondo and Greg Capello. Ms. Bernier volunteered at the cycling event as a “ride ambassador”. Ride ambassadors were experienced cyclists responsible for assisting other participants in the event. Prior to participating in the cycling event as a ride ambassador, Ms. Bernier was required to review and sign an electronic waiver.
Mr. Capello sent an email to Ms. Bernier and other ride ambassadors on July 7, 2018, which included the link to the registration form for the event and a liability waiver. In the same email, Mr. Capello requested that the ride ambassadors review and complete the registration and waiver and send it back. Ms. Bernier completed both forms and returned them on July 15, 2018. Ms. Bernier did not ask questions or request any clarification before returning the signed waiver.
The Waiver
The waiver was titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement”. The waiver included written notice of the form’s legal implications at the first paragraph. The waiver acknowledged that the signee was signing on behalf of themselves and their spouse, children, and anyone who might make a claim on the signee’s behalf. The waiver also provided in all caps that the signee “HEREBY ACKNOWLEDGE AND ASSUME ALL OF THE RISKS OF PARTICIPATING IN THE EVENT”.
Importantly, the waiver expressly waived, released, and discharged the releasors from any and all liability for Ms. Bernier’s personal injuries or actions of any kind arising from the negligence of GranFondo and Greg Capello, as well as related entities. All provincial, city, town, and other governmental bodies whose property or personnel were used in the event were also released. The waiver also listed some of the risks associated with the event.
The waiver concluded with an acknowledgment that the signee read the waiver, understood its content and the nature of the event, and was signing the waiver intentionally and voluntarily.
Summary Judgment Motion
The defendants and third and fourth parties brought a motion for summary judgment to dismiss the plaintiffs’ claims. The moving parties relied on the waiver, arguing that it barred the plaintiffs’ action and relieved them of any liability. In response, Ms. Bernier argued that the waiver was not enforceable against the plaintiffs, the waiver was sent to her without any explanation, and that the waiver did not protect the moving parties from their negligence. The plaintiffs also argued that the issue of whether the waiver protected the moving parties from the consequences of their negligence is an issue requiring a trial.
The Court held that the waiver was enforceable and relieved the moving parties from liability for the plaintiffs’ claims. The Court focused its analysis on the following issues:
- Is the waiver enforceable against the plaintiffs?
- Does the waiver bar the plaintiffs’ claims for negligence?
The Waiver was Enforceable
The first issue was divided into two sub-issues: (a) whether the waiver applied to volunteers; and (b) whether the waiver was enforceable because it was provided to Ms. Bernier without an explanation. The Court concluded that neither of these sub-issues required a trial and were appropriate for summary judgment.
The waiver applied to Ms. Bernier as a ride ambassador. The waiver included several clear and unequivocal references to volunteers.[1] The waiver also clearly stated that the signee assumed “all the risks of participating and/or volunteering” in the cycling event and that the signee acknowledges that they may, as a participant and/or volunteer, suffer serious injury.[2]
The Court also held that Ms. Bernier should be bound by the waiver’s terms, despite receiving the waiver by email and without an explanation.[3]
The Court relied on Arksey v Sky Zone Toronto, which summarized the law on waivers in Ontario.[4] The general law of contract applies to waivers. A person that signs a waiver is presumed to have intended to be bound by the waiver.[5] Importantly, it is generally not an excuse to say that one did not read the contract before signing. A defendant seeking to rely on the waiver is not under an obligation to ensure that the plaintiff read the agreement before voluntarily signing it. If the plaintiff is provided an opportunity to read the agreement, it is up to the plaintiff to decide whether to read the agreement or not.[6]
Ms. Bernier received the waiver two weeks before the event. She executed and returned the waiver to the defendants several days before the event. There was no dispute that she had sufficient time to review and consider the waiver. She had also signed the same waiver in the previous year when she volunteered for the event.
Although Ms. Bernier’s evidence was that she did not read the waiver carefully because she did not believe it applied to her as a volunteer, this was insufficient. There was no evidence that the defendants would have any way of knowing Ms. Bernier did not read the waiver or that she believed it did not apply to her. She had sufficient time to read the waiver carefully. The waiver also provided that the signee acknowledged and assumed all risks of participating in the event and agreed not to sue any party released by the waiver. The waiver also clearly stated that it should be read carefully and that it had legal consequences that would affect the signee’s legal rights.
The Waiver Barred the Claims for Negligence
The Court concluded that the waiver applied to Ms. Bernier’s claim in negligence and this was not an issue requiring a trial. The Court examined whether Ms. Bernier reasonably could have understood the waiver to exclude claims for damages caused by the alleged negligent organization of the event, the negligent failure to identify and alert participants of dangers, or the negligent maintenance of the roadway.[7] To answer these questions, the Court considered the wording of the waiver and Ms. Bernier’s familiarity with the subject event.
The Court considered several excerpts from the waiver in its analysis. The waiver outlined specific risks associated with the event, including but not limited to those caused by terrain (i.e., the road’s condition) and the actions of other people including event officials and producers. The Court was satisfied that a reasonable person that was executing the waiver would have understood that the waiver would bar claims similar to Ms. Bernier’s claims.[8]
The court dismissed the action as there was no genuine issue requiring a trial.
Takeaways
A waiver should be written clearly, concisely, and in plain language. Important provisions or sections should be highlighted and/or bolded to draw the reader’s attention to these provisions. This is especially critical in order to give the reader notice that the waiver will affect their legal rights.
While the party proffering the waiver must take reasonable steps to bring the waiver to the signee’s attention, the party does not need to ensure the signee read the waiver in its entirety. It remains the signee’s responsibility to review the waiver. Failing to read a waiver is not generally an excuse after the fact, especially where the signee is provided sufficient opportunity to review the waiver but chose not to do so. Waivers should be provided to the signee well in advance of an activity or event to ensure there is a sufficient opportunity to review and ask questions.
Simply waiving “negligence” is not sufficient for the waiver to apply. The waiver’s scope needs to be appropriately defined. The waiver should specify the various risks associated or expected with the activity or event to ensure the waiver applies to a broad range of circumstances.
Lastly, the signee’s experiences with signing the waiver and participating in the event or activity on previous occasions remain a relevant consideration when enforcing a signed waiver.
[1] 2024 ONSC 6725 at para 47.
[2] Ibid at paras 49–50.
[3] Ibid at para 66.
[4] See Arksey v Sky Zone Toronto, 2021 ONSC 4594 at paras 21–24.
[5] See Apps v Grouse Mountain Resorts Ltd, 2020 BCCA 78 at para 40.
[6] Arksey, supra note 4 at paras 22–23.
[7] Ibid at para 84.
[8] Ibid at para 91.