Carfra Lawton LLP | Victoria BC

Ambiguous waiver of liability not enforceable, particularly where the risks are not specified

In Chamberlin v. Canadian Physiotherapy Association 2015 BCSC 1260 the plaintiff, a physiotherapist, sustained injuries while participating in a continuing education course administered by the defendant Association. The defendants sought to dismiss the plaintiff’s claim by summary trial, as the plaintiff had signed a waiver releasing them from any responsibility for injuries or losses attributable to her participation in the course.

The plaintiff was presented with and signed the waiver on the first day of the course. She testified that the waiver and its implications were not explained to her and other course participants; and she argued that she did not know or understand that she was relinquishing her rights to pursue a claim, by signing the waiver. The waiver did not specifically mention “negligence.”

Ultimately the court held that the waiver remained ambiguous even when a literal meaning was applied to its wording. The court was not convinced that the waiver, when read in its entirety, was sufficiently clear or specific to encompass negligence. The waiver mentioned “risks” involved in the course’s “techniques and procedures,” but did not identify or provide examples of those risks, or even specify the nature of the risks or their degree of severity. It was therefore unclear what risks the signing party would be accepting to bear by waiving “any and all claims” against the defendants. The principle of contra proferentem applied and the ambiguity was resolved against the drafters of the waiver (the defendants) and in favor of the plaintiff. The court further found that a reasonable participant in the course would not have understood or expected that he or she was assuming such onerous legal risks, particularly given the general language of the waiver and its lack of specificity with respect to negligence.

This decision emphasizes that, to enhance their enforceability, waivers of liability should specify the risks being assumed, particularly for activities which are not inherently risky.

Case law summary by: Caroline Alexander