August 1, 2018

Canadian Underwriter reports on validity of liability waivers

Canadian Underwriter reports on validity of liability waivers

Written by: Robert A. Betts

Beard Winter LLP litigator and partner Robert Betts is quoted in the June 2018 issue of the Canadian Underwriter article, “Will top court give waivers a sporting chance?” about why the fate of insuring sports and recreational facilities hangs in the balance.

Excerpt from Canadian Underwriter:

While the courts have so far upheld liability waivers, these contracts are not foolproof, says Robert Betts, the lawyer at Beard Winter LLP who represented Blue Mountain. Minors, for one thing, are unable to legally contract with parties, so they can’t waive their right to sue. Betts also points out that any waiver is only as good as it is written. Ski resorts like Blue Mountain have done a good job of issuing uniform contracts perceived to be the “gold standard” in liability waivers. These waivers employ all-encompassing language that covers nearly every eventuality — including negligence on the part of the operator.

The explicit wording is necessary, says Betts, because if the waiver fails to cover a specific risk or injury, however obvious, the claims are actionable. “You don’t get any of these kinds of arguments if you’ve got a properly drafted waiver,” he says. “Absent that, none of the case law matters. It all starts with proper documentation and a well-drafted waiver.”

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