Waivers (Can) Work,
Waivers (Can) Work

David Hughes

If you are a business owner, I’m sure you have considered the things that could go wrong with the goods or services you provide.  You have probably had a customer or client complain at some time or another.  You probably also have some form of business insurance that you rely upon if something goes wrong.  But what if your insurance coverage is denied?  Have you ever thought about also getting a waiver in order to protect your business? 

A recent case in BC Supreme Court showed that properly drafted waivers can be effective at eliminating your liability when something goes wrong. 

In the case of Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702, a skier sustained serious injuries when he skied through an area that was supposed to have been roped off.  The back of the skier’s ticket contained language that stated Big White would not be liable for any personal injury to the skier “resulting from any cause whatsoever”. 

The judge in the case found that Big White had failed to take reasonable care to ensure the area was roped-off.  She found that Big White was negligent; however, she upheld the waiver on the back of the skier’s ticket as a complete defence to Big White’s negligence.  The skier ended up with no compensation and also ended up having to pay legal costs to Big White. 

This case doesn’t mean that every waiver will hold-up in court, but your chances of being able to defeat a potentially costly lawsuit are obviously better if you have a waiver than if you have nothing.  Also, by requiring people to sign a waiver, it may also encourage them to take more responsibility for their own actions, and even to think twice before starting a lawsuit. 

There are many types of businesses that could benefit from waivers: from businesses engaged in adventure sports; to businesses that offer tours or outdoor activities; to businesses that rent tools, furniture or locations (film shoot anyone?); to automobile body shops; to health and beauty spas; to retailers of equipment, and many more.  A waiver could be a standalone document, or it could be incorporated into an order form, a contract, or even a receipt.  It could be placed on your website, or on a sign at your premises.  Apart from choosing the right language in the waiver, it is also important that you can show that you drew the waiver to your customer’s attention and that s/he agreed to it before purchasing your product or services.  If done well, a small investment in a waiver could end up saving you thousands. 

If you have never considered getting a waiver for your business, I recommend asking your lawyer about whether a waiver might be right for you. 
 
David Hughes is a business lawyer at Forward Law LLP.  He has seen (and drafted) some interesting waivers in his time!


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