Minors – The Special Case Of Liability Waivers

A liability waiver is a legal document - a contract - that a participant in an activity signs to waive his or her legal right to sue for compensation in case of an injury (or death) during participation in the activity. Waivers are a matter of course in the outdoor/adventure industry, and their execution is usually a pre-condition of participation in the activity.

If a participant in the activity is injured and decides to sue, the business will seek to have the courts enforce the waiver and have the lawsuit dismissed. This is by no means a certain result, but it is well established in Canadian law that a liability waiver can be upheld and the case dismissed - if the waiver was properly drafted and if it was administered according to best practices.

Liability Waivers for Minors

The situation is different when the activity participant is a minor. Since minors lack the legal capacity to sign contracts, liability waivers commonly require a "parent/guardian" signature on the minor's behalf.

However, at law, while contracts can be enforceable by a minor, they are not enforceable against a minor (J. Wilson, Wilson on Children and the Law, 3d (Toronto: Butterworths, 1994)), implying that liability waivers signed by parents/guardians of minors are invalid and do not protect companies who would seek to rely on them in defense of an injury lawsuit.

A "minor" (or "infant" or someone below the "age of majority") is legally defined in British Columbia as anyone under the age of 19. The same is true for Yukon, Nunavut, Northwest Territories, Nova Scotia, New Brunswick, and Newfoundland and Labrador. In Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan, the age of majority is 18.

Does this mean that companies are not protected by liability waivers for anyone under the age of majority, regardless of whether the participant and/or the parent or guardian has signed it? This is particularly concerning for outdoor/adventure companies, let alone schools, summer camps, sports teams, recreational/community sport facilities or anyone else delivering higher risk activities for youth and who would otherwise look to such waivers to protect themselves from legal action.

Somewhat surprisingly, there does not appear to be any authoritative legal decision, either federally or provincially, on the validity of waivers signed by parents/guardians on behalf of minor children. There are, however, two decisions that offer some guidance.

Wong (Litigation Guardian of) v. Lok's Martial Arts Centre Inc., 2009 BCSC 1385 (Wong)

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