Toronto Injury Lawyer Blog
There are a lot of activities which require the participants to sign a waiver.
A waiver is a legal document.
You would never think of a waiver as a legal document, but it is. Normally, when we think of legal documents, we think of documents which are signed by lawyers or business people in fancy office board rooms. Waivers signed at baseball diamonds, rock climbing centres, pickleball clubs, white water rafting clubhouses, or gymnasiums have the exact same impact as waivers signed in fancy boardrooms by business people and lawyers in fancy suits.
Participants need to know what they’re getting into when the get involved in an activity or sport that requires the signing of a waiver. Most waivers, if carefully crafted, lead to the participant relinquishing their right to sue either the organizers, the people affiliated or working with the organizer, or their fellow participants in the sport or activity. This means that they can’t sue in the majority of situations.
Break your ankle skating over a rut in the ice? Claim denied due to signing a waiver.
Get a concussion from getting hit in the head with a baseball? Claim denied due to signing a waiver.
Bad skydiving accident or scuba accident? Claim denied due to signing a waiver.
ATV or snowmobiling accident from a bad trail? Claim denied due to signing a waiver.
As an aside, Canada is a winter country, and as such, Canadians love to snowmobile. The caselaw on snowmobiling in Canada is rich. Canada probably has the most reported decisions in the world in snowmobile accidents. But, I can tell you that the caselaw in favour of accident victims for snowmobile accidents is very poor. You would think that Canadian Courts would side with the riders. Canadian Courts have not. Time and time again, these snowmobile accident cases go in favour of the Defendants for a variety of reasons (which often include the signature of the waiver).
Canadian Courts also point to this legal Latin phrase: volenti non fit injuria: Translated from Latin, this maxim means “to a willing person, injury is not done” (or more simply, “no harm is done to someone who consents“).
If the participant voluntarily assumes the risk of a particular activity; say like snowmobiling; then they cannot later sue having assumed those risks.
For example, Canadian Courts have acknowledged that ice hockey and snowmobiling are inherently dangerous! The participants need to know, or should know the risks of that sport or activity before they participate. The participant cannot be willfully blind, or completely ignorant to the physical risks of a particular sport or activity. It’s well accepted that ice hockey is a fast and physical sport. Even in a non contact league. The expectation that there is no physical contact, or physical risk isn’t realistic.
There are some situations where a Court will void a waiver.
In the first example, the waiver is not clearly marked as such. The waiving of legal rights is buried in the fine print of the document, and not clearly brought to the attention of the Releasor. The participant might be looking at a document explaining the rules of the game, the expectations of the parties, or how the game or activity will be run. The document does not state that it’s a waiver. But, at the end of the document, there is a signature line requiring the participant’s signature. The portion of the waiver or legal rights is not clearly highlighted in the headings of the document, and is buried in the fine print. In those situations, a Court may chose to void the waiver because it was not clear to the participant what they were looking at, or signing. These cases are fact specific and largely depend on the wording of the waiver, and how the document is constructed.
In 2026, we are seeing more digital waivers which operators are asking participants to sign at the point of entry. Think of a pickleball club, or a rock climbing centre. If you want to play or participate, you have to digitally sign on a tablet before you enter. If the document which the participant is signing is not clearly marked as a waiver (ie the waiver is hidden in a bunch of fine print and not clear), then a Judge might opt to void the waiver. This again is very fact specific, and largely determined based on how the waiver and the document is constructed and presented to participants on the tablet.
Is the waiver that the participant is signing “non est factum“. This loosely translates from Latin to “it’s not my deed“. This can be used as an attack on a waiver to have it voided because the signatory fundamentally did not know, or did not understand that they were signing a waiver. This can be very difficult to prove, but again, largely depends on the wording of the document; how that document was presented to the signatory, and how the document was constructed. In contract law, it is a narrow legal defense that allows a person to void a signed waiver by proving they fundamentally misunderstood its nature or character. This can be difficult to prove. The more sophisticated the signatory, the more difficult the case.
A Court will examine the party’s level of sophistication and understanding of legal documents: not everyone is going to be held to the same standard. Here’s an example:
A personal injury lawyer; or any lawyer for that matter will be held to a higher standard compared to a person who has limited understanding of English. The lawyer isn’t going to get the benefit of the doubt. The person with limited understanding of English (English is their second language and they are learning it), is going to have their case looked at through a different lens.
The waiver will be read contra proferentem; which means against the drafter of the waiver. So, any ambiguity will go in the favour of the participant (non-drafter). Any holes in the waiver, or discrepancy, or any clauses which aren’t clear will be favourable for a Plaintiff.
