By Barry W. Kwasniewski and Cameron Axford

Liability waivers are a critical tool for organizers of sporting and recreational events, protecting them from claims arising from participant injuries. In a recent decision by the Ontario Superior Court of Justice the court upheld the enforceability of a waiver signed by an adult volunteer participant. This case highlights the significance of clear and comprehensive waivers, as the court found that the waiver effectively barred the plaintiff’s negligence claims and demonstrated the volunteer’s assumption of both physical and legal risks associated with the event.

Bernier v Ottawa (Ville), decided on December 12, 2024, involved a legal action initiated by Sandra Bernier (“Ms. Bernier”) on behalf of herself and her two minor children. Ms. Bernier sought compensation for injuries she sustained while participating in a cycling event in 2018, organized by the defendant, GranFondo, a corporation owned and operated by Greg Capello (“Mr. Capello”). She also sued Ville d’Ottawa for negligence, alleging it had failed to maintain the roadways where the cycling event took place.

Ms. Bernier, a volunteer “ride ambassador” for the July 21, 2018, GranFondo Ottawa cycling event, was injured when she fell from her bicycle at the intersection of Loggers Way and railway tracks, where her friend also fell. She argued that the waiver she signed before the event was unenforceable, but the Ontario Superior Court held that it applied, barring her personal injury claims. The court found that by signing the waiver and participating, Ms. Bernier voluntarily assumed both the physical and legal risks.

Before the event, Ms. Bernier received an email from Mr. Capello with a link to a registration form and a liability waiver. She completed and returned both. Ms. Bernier signed the waiver titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement”. The waiver stated that it had legal consequences and would affect the legal rights of the signatory. The waiver included an acknowledgement that the person signing it was assuming all risks of participating in the event. The waiver included specific acknowledgements about the potential for death, serious injury, and property loss, and that these risks were also present for volunteers.

The waiver stated that the person signing it released the organizers from liability, even in cases of negligence. It also stated that it was the signor’s responsibility to be familiar with the event course and route. The waiver concluded with an acknowledgement, in capital letters, that the person signing the waiver read it, understood its content, understood the nature of the event and was signing the waiver intentionally and voluntarily.

The main issues were whether Ms. Bernier’s action is barred either by the waiver she signed or because she voluntarily assumed the risk of injury; whether the waiver is enforceable since Ms. Bernier was a volunteer participant and not a paying participant, and she received the waiver by email without any explanation; as well as, whether the waiver bars Ms. Bernier’s claims for negligence.

The court held that as the wording of the waiver clearly includes references to volunteers and the potential risks, it applied to Ms. Bernier. A person who signs a waiver is presumed to be bound by it and there is no obligation for the organizers to ensure the participant read the agreement they voluntarily signed. Further, the waiver contained clear language that it had legal consequences, Ms. Bernier had sufficient time to read it, and she had previously signed the same waiver at a previous event by the same organizer.

The court also concluded that the waiver barred the claims of Ms. Bernier’s two children, as under s.61(1) of the Family Law Act, dependents do not have the right to sue unless the injured party has the right to sue.

The court concluded that the waiver was specific enough in its description of the risks to include dangers of the route and negligence of the event organizers and specifically included municipal agencies in its release from liability. As such, the waiver released the defendants from any liability due to negligence. According to the court, Ms. Bernier voluntarily assumed the physical and legal risks when she signed the waiver and participated in the event.

This case serves as a reminder for charities and not-for-profits, particularly those that organize sports and recreational events, to ensure their liability waivers are robust and explicitly detail the risks participants are assuming. For participants, the ruling highlights the need to carefully read and understand the legal implications of waivers before signing. Charities and not-for-profits hosting such events should consult with legal counsel to ensure their waivers adequately protect against potential claims, as demonstrated by this case’s affirmation of the enforceability of comprehensive liability waivers.

​Read the February 2025 Charity & NFP Law Update