Why waivers won’t necessarily protect clients from COVID-19 liability

Waivers of liability for disease transmission might protect commercial clients from lawsuits, but the industry will not know for sure until one is tested in an appeal court, a litigation defence lawyer suggests.

A waiver will not, on its own, protect a client from liability, said John Olah, a partner with law firm Beard Winter LLP, whose expertise includes liability of ski resorts and hotels.

Instead, a waiver is only one small part of a larger risk mitigation strategy, said Olah. He was asked what happens if a commercial client hosts an event and the client asks attendees to sign a waiver agreeing that the organizer is not responsible if an attendee becomes ill as a result of contracting a disease such as COVID-19 as a result of attending the event.

Even with a waiver, it is still “critical for commercial entities to act reasonably and appropriately in conjunction with the best medicine that we have, with best practices whether it be wearing a mask, whether it be social distancing, whether it be cleaning on a regular basis,” said Olah.

Moreover, a waiver must be drafted for a specific situation. You can’t just copy and paste the wording of someone else’s waiver and expect it will hold up for your client in their specific situation.

The question of waivers for COVID-19 transmission is especially timely now because of the rally United States President Donald Trump held this past weekend in Oklahoma, said Olah.

Published reports indicated the Trump campaign asked attendees to sign a waiver assuming all risks for exposure to COVID-19.

“There is a major debate going on in the United States right now about waivers because it is becoming quite prevalent to see waivers in commercial settings,” Olah told Canadian Underwriter last week.

Sometimes plaintiffs who are injured – while skiing or dirt-biking for example – have sued the parks where they were injured. In some cases, plaintiffs argue a waiver should not be enforced.

“There is a reasonably good chance that a waiver will operate with a phrase that includes exclusion of infectious disease, bacteria or virus including COVID-19,” said Olah.

But we will not know for sure until a case gets tested before a provincial appeal court or the Supreme Court of Canada, he added. Olah was speaking specifically about how Ontario courts enforce waivers.

It is critical that a waiver be drafted properly, be brought to the attention of the attendee, and that there is no factor that would prompt a court to rule the waiver is unconscionable, said Olah.

For example, say a commercial client hosted an event with tens of thousands of people at an arena. If that client did not take precautions such as social distancing and having face masks, a court might rule in such an instance that it would be unconscionable to enforce a waiver, said Olah.

Courts have an “overriding veto that can be exercised in rare circumstances.”

In Ontario, the Occupiers Liability Act has a section that effectively enforces waivers. While the Ontario OLA stipulates there is a duty of care to ensure that people are “reasonably safe” while on one’s property, it also “does not apply in respect of risks willingly assumed by the person who enters on the premises.” That exception is somewhat narrow because under the OLA, the occupier still has a duty to “not act with reckless disregard” to people’s safety.

Across Canada, the law varies by province and territory, Olah suggested. For example, Quebec Civil Code stipulates that a person cannot exclude or limit liability for bodily injury.

Feature image via iStock.com/golibtolibov