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October 2015

The Best Defence is Sometimes Not the Best Offence: the Value of a Well-Drafted Waiver

MB Sports, Resorts & Liability Newsletter

The Ontario Superior Court of Justice recently examined the effectiveness of a signed waiver as a full defence in the context of injuries sustained during recreational sports play in Levita v. Alan Crew et al.1

In this case, the plaintiff, Robbie Levita, was a player on a recreational hockey team in a league operated by the defendant, True North Hockey Canada ("True North"). Of note, this was a "no-contact" recreation league, which means body checking was prohibited. During the course of a game, the plaintiff suffered a fractured tibia and fibula as a result of being checked from behind into the boards by the defendant, Alan Crew. In his Statement of Claim, Levita claimed that Crew intentionally or recklessly injured him. Levita also named True North as a defendant, alleging that it was negligent in failing to take adequate steps to protect the safety of the players in the league and also that it knew or ought to have known that Crew was a dangerous player.

Before allowing players to join the league, True North demands that a waiver of liability be executed. This was no different for the plaintiff, who signed the waiver before the start of the season. True North relied on this waiver to escape liability at trial.


The Court found that Crew was neither negligent nor did he attempt to injure the plaintiff. True North therefore could not be found liable, as it did not breach the requisite standard of care that it owed to the plaintiff to provide a safe playing environment. The Court nonetheless discussed whether the waiver executed by the plaintiff was enforceable. In his decision, Justice Firestone accepted that the waiver signed by Levita at the start of the season was a complete defence to any finding of negligence on the part of True North. In essence, Justice Firestone found that "even if True North had been found to be negligent in not providing a safe environment for the play of hockey, the waiver is a complete defence to the claims against it."2

Justice Firestone's decision implied that the waiver was properly executed by Levita and constituted a valid agreement between Levita and True North, a factor crucial to its enforceability. While the onus of proving the validity of the document rested on the party relying on it, this was met by True North. Although the subject waiver was passed around the team dressing room before the first game of the season without the presence of a league representative to explain its terms, the Court found that it was open to the plaintiff to take the necessary steps to ensure he understood its contents if he did not have sufficient time to read the waiver before signing it.

...the waiver's effect could not be retroactively voided by arguing that he did not understand or read the waiver even though he voluntarily signed it.

The Court held that the waiver's effect could not be retroactively voided by arguing that he did not understand or read the waiver even though he voluntarily signed it.

Furthermore, the Court found the wording of the waiver unambiguous and specifically listed the risks and dangers to which it intended to apply. Even though True North was a "non-contact" league, the inherent nature of hockey includes bodily contact. This is the precise reason why the waiver was provided and it was specific to the risks inherent in the sport of hockey. Specifically, the waiver stated:

"[...] In consideration of my participation... I hereby acknowledge that I am aware of the risks and hazards associated with or related to ice hockey. The risks and hazards of ice hockey include, but are not limited to, injuries from:

  • Collisions with the rink boards, hockey nets, and ice;
  • Being struck by hockey sticks and pucks;
  • Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head, and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed."3

Given the precise wording of the waiver, the plaintiff's claim is appropriately covered and does not fall outside of its scope.4

As demonstrated by this decision, a waiver can be a useful tool as long as it is carefully drafted and unambiguous. Furthermore, this case demonstrates that waivers in some circumstances may operate as a complete defence to claims found to fall within their scope.

1 Levita v. Alan Crew et al, 2015 ONSC 5316.
2 Ibid at para 102.
3 Ibid at para 14 and 104.
4 For an analysis of the legal requirements for a waiver to be enforceable, please see an article by McCague Borlack LLP, Waiver of Liability vs Public Policy - Which Takes Precedence?


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