In a recent Ontario case where a mother sued her son’s gymnastics centre for her personal injuries, the court explained that any ambiguity in a waiver will be construed against the party who prepared it.
In September 2014, the mother enrolled her two-year old son in a toddlers’ gymnastics program at a gymnastics centre through an online registration process.
When the mother and her son arrived at the centre for the son’s first class the next day, the mother was asked to sign a waiver. The document was titled “Release of Liability, Waiver of Claims and Indemnity Agreement”. The one-page waiver was given to the mother, but not specifically explained to her and she did not read over the document before signing it.
On September 20, 2014, during the next class, the mother claimed that she was injured when she stepped down from a mat while in the process of supervising her son. She alleged that the mat was unstable because it was not properly supported. She lost her balance and fell to the gym floor.
As a result, the mother sued the gymnastics centre, alleging that she suffered personal injuries as a result of the centre’s negligence.
The centre sought summary judgment dismissing the action on the basis that the mother signed a waiver. The centre argued that the waiver was a complete bar to the mother’s claim and therefore there was no genuine issue requiring a trial.
The court began by explaining that one essential prerequisite common to all cases where a waiver is considered to be binding is that it is unambiguous; any ambiguity will be construed against the party who prepared it.
The court therefore looked to the wording of the waiver. It found that it was clearly focused on the potential injury to the participant child. In the on-line registration form, the “gymnast” was identified as the son. The waiver was designed to relate to him as the participant (and releasor), through the signature of his mother as parent/guardian. The mother did not sign in her personal capacity.
While the centre submitted that the terms of the waiver making it binding on “next of kin, heirs, executors, administrators and assigns” expanded its scope to include the mother personally, the court disagreed. The court stated that a phrase of that nature related to claims that persons other than the named individual might make in lieu of that person (in this case, the child) himself.
In paragraph two of the waiver, the release was said to apply to liability for injury, death, damage, expense and related loss of income “that I or my next of kin may suffer as a result of my participation in this activity”. Again, in the court’s view, the focus was on the result of the child’s participation and any related claims by next of kin, as opposed to claims made by a third party directly for damages.
Therefore, the court found that, at the very least, it was ambiguous whether the scope of the waiver extended to the mother and to any injury suffered by her. The court stated that such ambiguity must be resolved against the centre, which created the document.
Additionally, there was no requirement that the same adult who signed the waiver, whether a parent or otherwise, accompany the child on each occasion. Put another way, there was no requirement that a new waiver be signed whenever a different adult accompanied the child. The court therefore concluded that the signing of the waiver on behalf of the child was ineffective to prevent the claims of third parties.
As a result, the court dismissed the gymnastic centre’s summary judgment motion to dismiss the mother’s claim.
Owners and occupiers of commercial, residential and municipal properties owe a duty to ensure the safety of those who enter that property by invitation or by right. This duty generally applies to any person or entity which occupies or maintains control of a property, as set out in Ontario’s Occupiers’ Liability Act. Hazards which can cause an occupier to be in violation of this duty include the failure to salt or properly remove ice and snow, negligent property maintenance, unsecured animals, insufficient lighting and poor construction.
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