A waiver is a contract between the participant and service provider through which the participant agrees not to pursue an action in tort. A waiver is more onerous on a participant as it prevents the participant from bringing an action even in cases of negligence.
The purpose of this article is to review judicial decisions to compare waivers and permission forms and then evaluate their usefulness in risk management in a school setting relating to field trips and extra-curricular activities. The article will also review judicial decisions regarding the effect of school permission forms on legal actions involving students who have been injured during school field trips and extra-curricular activities.
The case law suggests that permission forms will be more useful than waivers and that waivers between school and student are unlikely to be upheld. Permission forms can be used to indicate proof of consent to the risk posed in the natural course of an activity, but they do not release the school from the duty of care owed to the plaintiff or create a defence with respect to injuries that occur outside the course of the activity or through negligence. In order for permission forms to be effective, they should be short, clear and concise.
Waivers
In Dyck v. Manitoba Snowmobile Association, the Supreme Court ruled that a waiver signed by a plaintiff in full knowledge of the defendant's intention to exempt itself from liability relieved the defendant from negligence claims. The Supreme Court of Canada has confirmed that a contractual waiver clause can serve as a full defence to a claim in tort.1 The negligent conduct occurred when a race official signalled the end of a race by moving on to mid-track causing the plaintiff to strike a wall. In enforcing the waiver, the Supreme Court noted that the race official's conduct was not radically different from the type of conduct the parties contemplated. The Supreme Court of Canada also noted the absence of any valid reasons not to enforce the contract. For example, there had been no social or economic pressure imposed on the plaintiff to sign the waiver and there was no inequity in bargaining power requiring that the contract be voided on the basis of it being unconscionable or against public policy.
In Crocker v. Sundance Northwest Resorts Ltd., the Supreme Court of Canada again confirmed that a contractual waiver clause can serve as a full defence to a negligence claim. However, on the facts of the case, the waiver signed by the plaintiff did not relieve the defendant of liability for its negligent conduct, because, the plaintiff had not read the form and did not appreciate that it was a waiver which exempted the defendant from liability. The Supreme Court of Canada noted that there was a significant difference between Dyck and Crocker. The difference was that in Dyck, the plaintiff signed the waiver with full knowledge of the defendant's intention to exempt itself from liability. This was not the case in Crocker.
In the recent case of Isildar v. Kanata Diving Supply a Division of Rideau Diving Supply Ltd., Justice Roccamo for the Ontario Superior Court dismissed the plaintiffs' claim on the basis of a waiver. In this case, the plaintiffs brought an action in tort and contract on behalf of the husband and father of the family who died while participating in a scuba diving course. The plaintiffs claimed damages for past and future loss of financial support, the loss of household services and for funeral expenses. The plaintiffs alleged that the defendants owed a duty of care to the deceased to provide competent and professional diving instructions and to rent diving equipment in good working order. The deceased had signed a release from liability prior to making the dive. The court dismissed the plaintiff's claim. Despite the defendant's breaches of the standard of care, the valid contractual release of liability signed by the deceased operated to bar the plaintiff's claim.2
The cases discussed deal with the application of waivers in commercial settings. It is unlikely that a School Board will be able to contract out of liability for negligence to the same extent. This is because of the nature of the fiduciary relationship between educators and students. Given this relationship, it is unlikely that the court would uphold agreements where a board rules to contract out of its duty.
Permission Forms
Permission forms help protect boards from liability for injuries that flow from school activities and outings. Permission forms advise the parents of the activity and the risks associated with it. By signing the form, students and parents indicate that the risk is acceptable to them. A permission form protects the school from the allegation that the plaintiff's parents did not know about the activity and would not have let the student participate.
An example of this type of case is Thomas v. Hamilton Board of Education.3 In Thomas, the Plaintiff was rendered quadriplegic due to a foot ball accident. The student's parents had signed a permission form for the student to participate in football. The court held that the Plaintiff was appropriately and progressively coached. The Plaintiff was an excellent athlete who excelled at a number of sports. His equipment was adequate. The injury occurred during routine play. While the consequences of the injury were devastating, the injury was within the ambit of the risks inherent in the sport.
The court of appeal held that the consent would not overcome negligence on the part of the Board or the coaches but that the Plaintiff and his mother consented to the normal risks of the game. The court held that where a plaintiff has their parent's consent and their family doctor's certificate stating that they are fit to participate in a sport that has inherent risks such as football or other contact sports and the plaintiff knows that the sport carries with it the risk of serious injury and the plaintiff took precautions to avoid serious injury indicating they were aware of the risk, the court will find that the plaintiff specifically contemplated the risk but intended to participate in spite of the risk.4
A permission form indicates that the plaintiff has consented to the normal risks of the activity and where a student's injuries flow from that risk and were not caused by negligence, the student's case will be dismissed.5
The jurisprudence with respect to this issue is clear. Permission forms make clear a party's acceptance of the risks normally associated with the activity and that the board ought not to be held responsible when those risks materialize.
Permission Forms Do Not Indicate a Voluntary Assumption of Risk of Negligence for Students
It is important to note that the principles described above should not be interpreted to suggest that permission forms or informed consents can be equated with the voluntary assumption of risk. A voluntary assumption of risk defence is not applicable where the facts disclose a teacher-student relationship.
1 Dyck v. Manitoba Snowmobile Assn. Inc., [1985] S.C.J. No. 34, [1985] 1 S.C.R. 589 and Crocker v.
Sundance Northwest Resorts Ltd., [1988] S.C.J. No. 60, [1988] 1 S.C.R. 1186.
2 Isildar v. Kanata Diving Supply a Division of Rideau Diving Supply Ltd., [2008] O.J. No. 2406, at paras.
726 and 727.
3 [1994] O.J. No. 2444.
4 Ibid. at para. 89.
5 Ibid. at para. 90.
