Speaker's Corner: Ruling on waivers for volunteers, employees significant for recreational industry

A Canadian first on the law of waivers in an employment context was the subject of a motion for summary judgment in the Ontario Superior Court of Justice on Nov. 18.

In Fleming v. Massey, Justice Richard Byers found that a waiver aimed at participants in a recreational activity also covers volunteers and employees.

According to Byers, the waiver signed by Derek Fleming, a volunteer track official, was a complete bar to recovery for any damages arising from a go-kart racing accident. Byers said even if Fleming had been an employee, “the waiver is wide enough to cover all the eventualities.”

Fleming acted as race director and steward at a go-kart race held in October 2010 at the Lombardy Raceway Park in Lombardy, Ont. He received a stipend of $150 from the not-for-profit go-kart racing clubs that ran the event, National Capital Kart Club and Lombardy Karting.

Prior to entering the event, Fleming signed a waiver all participants, including all drivers, spectators, volunteers, and employees, had to sign. The waiver used by the two clubs is a standard-form waiver provided by ASN Canada FIA, the Canadian motor sports governing authority.

The body of the waiver details the risks of participation and the legal rights waived by execution. It also includes the statement: “I am familiar with and accept that there is a risk of serious injury and death in participation, whether as a competitor, student, official or worker, in all forms of motor sport and in particular in being allowed to enter, for any reason, any restricted area.”

This language clearly states the waiver covers track officials and employees. The waiver, according to Byers, was “aimed at participants,” and “any additional status ie. employee, is extra, not ‘instead of.’” This means volunteers and employees are, first and foremost, participants in a recreational activity.

The court rejected arguments by Fleming’s counsel that use of the waiver had breached the Occupational Health and Safety Act or the Employment Standards Act. There was no public policy reason preventing enforcement of the waiver as a complete bar to recovery.

The decision has important ramifications for the recreational industry as event and activity operators may require volunteers and employees to sign the same waivers used for participants. Recovery for any damages incurred by a volunteer or employee will be barred if they are injured due to negligence on the part of the operator. The use of waivers, therefore, may become a means of limiting the risk associated with any inherently dangerous activities.

It remains to be tested whether the decision in Fleming endorses waivers signed by volunteers or employees in other industries. The common law considers participation in recreational activities and events to be voluntary, and waivers are a standard means of preventing liability for an operator. It was therefore appropriate for Byers to find volunteers and employees in recreational activities and events are subject to waivers.

It may be more difficult to convince a court that a waiver signed by a food services employee, for example, should stand. However, it will be interesting to see the effects of the decision in the future.

M. Susan Guzzo and Katarina Germani of Clyde & Co Canada LLP were counsel for the successful defendants on the motion.

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