Have you signed a liability waiver? This does not necessarily prevent you from pursuing a civil liability claim.

When a person participates in a sports, recreational, or organized activity, it is common for them to be asked to sign a liability waiver. This document aims, on the surface, to prevent any legal action in case of injury.

But is it truly impossible to sue someone after signing such a waiver?

The answer is no.

In many situations, it remains entirely possible to bring a claim, particularly in civil liability, when one is the victim of bodily injury.

The limits imposed by the Civil Code of Quebec

The Civil Code of Quebec is very clear :

• No one may exclude or limit their liability for bodily injury they cause to another (s. 1474 para. 2 C.C.Q.)

Assumption of risks… is not a waiver of legal recourse

Certain activities involve natural risks: slipping, falling, being struck, etc. The Civil Code recognizes that a victim may accept the risks associated with the activity. However, assuming the risks does not mean waiving the right to sue the responsible party (s. 1477 C.C.Q.).

Indeed, even if you knew about the dangers, you may sue if your injury results from the fault of the organizer or business. Thus, a liability waiver does not automatically nullify your right to take legal action.

What is the purpose of a waiver, then?

Even if it does not protect against claims for bodily injury, a waiver is not useless. It :

• Informs the participant of the risks associated with the activity;
• Specifies the safety instructions to be followed;
• Demonstrates that the person gave free and informed consent;
• Helps determine what was foreseeable within the context of the activity.

Caution : high-risk activities

There is, however, an important nuance.

In certain very risky activities, such as skydiving or rock climbing, the participant accepts a greater degree of responsibility. Courts recognize that the participant assumes a larger share of risks.

In such situations, the waiver and assumption of risks carry more weight. Thus, according to the decision Morin v. Centre École de Parachutisme Atmosphair inc. (2004 CanLII 43113), a lawsuit will succeed only if the victim demonstrates gross or intentional fault. This may include, for example :

• A clear safety defect;
• Serious negligence in supervision or instructions;
• Use of defective equipment;
• Lack of minimal diligence expected from a professional.

Conclusion

Signing a waiver does not automatically deprive an injured person of their right to take legal action. In Quebec, the law protects victims of bodily injury and prevents a simple contractual clause from limiting their legal recourse.

However, the riskier the activity, the more nuanced the analysis becomes. It will be necessary to evaluate the business’s conduct, the foreseeable risks, and the presence (or absence) of gross fault.

In case of doubt or questions, it is essential to consult a professional. You may still have legal recourse even after signing a waiver. Our firm can analyze your situation, determine your options, and guide you through the legal process. To discuss your situation, contact our team now.