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What you need to know about waivers of liability.
“You assume all risks, even if arising from our negligence."
You may have seen a statement like this when taking part in an activity. It is an attempt to limit legal responsibility. It is often called a waiver of liability or a release. Such statements are not always enforceable, even if they are in a contract or on a clearly visible sign.
Here are five things to know about statements limiting liability, aka waivers.
1. A service provider must take reasonable care of your safety
When you contract with a provider of services, the provider must take reasonable care of your safety. This is called an implied warranty. A warranty is a promise.
The provider also has a duty of care to be a reasonably careful provider. This means they have to use “reasonable care” when dealing with you. “Reasonable” means what a reasonable person would do in similar circumstances.
Some service providers try to limit these legal responsibilities. They use a waiver of liability to protect themselves from responsibility for any injuries you suffer. The waiver often tries to protect the provider even when their negligence (that is, their failure to take reasonable care) causes the injury.
For example, a provider might have you sign a form that says:
"I agree to waive any claims that I may have against the service provider from any and all liability for any loss, damage, expense or injury, including death, that I may suffer as a result of my participation in the activities, due to any cause whatsoever, including negligence on the service provider’s part."
2. With a waiver of liability, a service provider asks you to give up a right
With a waiver of liability, a service provider asks you to waive—or give up—a right you would otherwise have. By signing the waiver or even just taking part in the activity, you agree to give up your legal right to sue them if you suffer harm during the activity—even if the harm results from their failure to take reasonable care.
Such a waiver of liability may be found in a contract, on a ticket, or on a sign at the site of an activity.
Such waivers are often required in order to take part in an activity. You find these waivers at ski resorts, amusement parks, rock-climbing venues, and extreme sports activities. You even see them used with ordinary organized sports such as softball or soccer leagues.
3. Waivers of liability are not always enforceable
Waivers of liability in sports and recreational activities are designed to protect the organizers from responsibility when their negligence causes an injury.
Such waivers are not always enforceable. For a waiver to be valid:
- the provider must take reasonable steps to bring the waiver to your attention before the contract is made,
- the provider must “bring home” your understanding of the waiver, and
- the waiver must be clearly stated.
4. Three factors influence whether a waiver of liability is valid
For a waiver of liability to be valid, three factors are influential.
The provider must take steps to bring the waiver to your attention
For a service provider to rely on a waiver of liability, it must take reasonable steps to bring the waiver to your attention before the contract is made.
For example, a ski resort cannot rely on a waiver posted on a sign at the top of the ski hill. You won't even see the waiver until after you purchase your lift ticket. However, if the waiver is on the ticket and brought to your attention when you buy your ticket, the ski resort may be able to rely on it.
The provider must "bring home" your understanding of the waiver
It is not enough for the waiver of liability to be in a standard form contract that you sign. The service provider must draw the waiver to your attention or explain its legal effect to you. Whether the waiver is in a contract, on a poster on the wall, or on the back of a ticket, the service provider must take steps to "bring home" your understanding of the waiver before they can rely on it.
They can bring the waiver to your attention by (for example):
- having you initial the waiver clause in a contract,
- placing the waiver clause in large bold print, or
- explaining the legal effect of the waiver to you.
The waiver must be clearly stated
A waiver of liability that is clear and easy to read is more likely to be enforceable. A waiver is less likely to be valid if it:
- uses a lot of legal terminology,
- has long sentences, and
- contains repetitive language.
5. It doesn’t matter whether you have read the waiver
Under the law, when you sign an agreement, you are bound by it whether or not you have read it. With a waiver of liability, it doesn’t matter if you didn’t read it or didn’t know its contents. So long as you sign the waiver, you can be bound by it if the waiver is valid.
Learn the importance of making a will.
A will is a legal document that says what the person making the will wants done with their property and obligations after they die. By making a will, you can ensure the things you own go to the people you want to have them. As well, your loved ones can feel confident they are carrying out your wishes.
Why you should make a will
"I've decided I need to make a will. Both my sisters want me to leave my opal ring to them. The ring originally belonged to our mother, and is a family heirloom. I can now see that unless I'm very clear in my will about who should have the ring, there will be family conflict later."
– Maria, Nanaimo
When you die, your property and obligations form your estate (with some exceptions explained below). Making a will gives you some control over what happens to your estate after you die. With a will, you can make sure the things you own go to the people you want to have them.
A will can also help the people who outlive you. They can feel sure that they are carrying out your wishes. Putting your intentions into a will can help save your family members and those you leave things to time, effort and money.
If you die without a will, what happens to your estate
If you die without a will, there is no way to prove what your wishes were. The law dictates how your estate will be divided. The rules are set out in the Wills, Estates and Succession Act.
For example, if you have a spouse and no children, your estate passes to your spouse. If you have a spouse and you had children together, your spouse gets the first $300,000 value of your estate and half the balance; the other half of the balance is divided equally among your children.
There are further rules depending on the combination of relatives alive at the time of your death. The estate goes to the government if no relatives can be found.
Another result if you die without a will is that the court has to appoint someone called an "estate administrator" to deal with your estate. That person, usually a spouse or child, needs to file documents in British Columbia Supreme Court that ask the court to appoint the person to administer the estate.
If there is no one who applies to administer the estate, then the Public Guardian and Trustee takes responsibility.
How a will is different from a power of attorney or representation agreement
A will takes effect only after you die. A power of attorney and a representation agreement are ways to plan for the handling of your affairs during your lifetime.
With a power of attorney, you can give someone the legal power to take care of financial and legal matters for you while you are still alive. (Learn more.) With a representation agreement, you can give someone the legal power to take care of health care and personal care matters.
Both a power of attorney and a representation agreement cease to have effect when you die.
You don't have to make a will
The law does not say that you have to make a will. However, by making one you can make sure that your wishes about inheritance are respected.
"My sister Susan died without a will. A year before, she told me what she wanted done with the things she owned. Her wishes included giving her car to me. But without a will, the law says how the estate is divided. In Susan’s case, everything in her estate will go to her only child, Amy."
– Janet, Vernon
What a will should include
A will doesn't deal with everything you own. A will generally doesn’t cover property that you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a "right of survivorship". When you die, any jointly owned properties will automatically become the exclusive property of the other joint owner. This property doesn’t form part of your estate.
Also, property where you have designated a beneficiary doesn’t form part of your estate. The beneficiary is entitled to receive the proceeds on your death. Common examples include a life insurance policy or a retirement benefit plan.
If you decide to make a will, learn the steps involved in making a will.