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Waiver of Claims & Assumption of Risk

In the past couple of weeks (co-incidentally with the start of the curling season!) we have received numerous requests about waivers of liability and assumption of risk agreement. After consulting with Steven Indig from Sport Law & Strategy Group we have developed a few tips and options for you, as well as new updated templates you can use to create your own custom version.

There are two versions: “Release of Liability, Waiver of Claims & Indemnity Agreement” and “Informed Consent & Assumption of Risk Agreement”.  The main difference between these documents is the distinction between physical risks of the sport activity (curling) and the legal risks.  The distinction between these two types of risks is critical to understanding the meaning of a waiver.

There is physical risk associated with all physical activity – this risk is inherent, unavoidable, reasonable and, in many sport and recreation settings, desirable. Physical risks are the risks, dangers and hazards that are inherent in the activity.

The second type of risk is legal risk. This is the risk that the organizers of a sport activity will behave negligently — that is, that in managing the program and dealing with participants they will not meet the reasonable standard of care required by law.

Our law says that participants can voluntarily assume the physical and legal risks associated with a sport activity. The mere act of participating in an activity can often be taken as assuming the activity’s inherent, physical risks. However, the legal risk (that is, the risk of negligence) can only be assumed by a written agreement or contract such as a waiver, but can only be executed by those over the age of majority.

The Release of Liability, Waiver of Claims & Indemnity Agreement included a waiver of the physical risk AND legal risk; and is to be signed by participants of the age of majority in your province / territory.  Below is a list of the age of majority for each applicable province or territory:

Alberta – 18
British Columbia – 19
Manitoba – 18
New Brunswick – 19
Newfoundland and Labrador – 19
Northwest Territories – 19
Nova Scotia – 19
Nunavut – 19
Ontario – 18
Prince Edward Island – 18
Quebec – 18
Saskatchewan – 18
Yukon Territory – 19

But who signs it?

It is recommended that you have all “casual’ users of your ice or facility sign one. A “casual” user is someone who ‘rents’ or uses’ your ice or facility on a one-off or irregular basis.  This will ensure you have a record of their understanding and acknowledgment of the risk and obligations that they are assuming from the rental or use of your ice or facility.

In the case of club members while joining the club/league can be viewed as a voluntary assumption of risk Mr. Indig believes that curling clubs could apply the same risk management technique and ensure the membership signs it as well. Implementing this however is a decision left to the club’s Board of Directors to decide.

The second document, Informed Consent & Assumption of Risk Agreement, is for users under the age of majority, however it is not a release of liability but rather it acts to inform the participant of the potential physical risks related to the sport of curling and the activities of the club, so they are aware of same.

Download Waiver of Liability Over Age of Majority (October 2011)

Download Assumption of Risk Under Age of Majority (October 2011)

Other tips (extracted from (download here)  Chapter 09, Contracts – Legal Issues in Sport)
The waiver is a formal and powerful legal document and an important risk management strategy. Sport organizers using waivers must make every effort to convey that impression and the seriousness of the contract when it is actually being signed. (page 197)

Organizers of sport events, and participants in sport, sign waivers and releases every day. These are very specialized contracts that have only one narrow purpose—to confirm that the person signing the document will not make a claim against some identified group of people or organizations in the event an injury or damage occurs. Whether it is called a release or a waiver, the person signing the document is releasing any claims he or she may have, or waiving any right to start an action against named parties in certain defined and usually limited situations. (page 195)

They are perfectly valid contracts if they are prepared and executed carefully; but they will always be closely reviewed to be sure all the formal contracting requirements are satisfied. (page 195)

The waiver or release should be provided to the person signing it well in advance of the activity. Handing a client or participant a waiver to sign at the last moment before embarking on an activity, or once the participant has already travelled a great distance to attend the event, is not sufficient. (page 196)

A participant will ask questions at this time regarding what the document actually means. Although tempting, it is not advisable to interpret, explain, or summarize the document. The best response when queried by a participant is to say that the document means exactly what it says. (page 197)

The waiver is a formal and powerful legal document and an important risk management strategy. Sport organizers using waivers must make every effort to convey that impression and the seriousness of the contract when it is actually being signed. (page 197)

Download Waiver – The How To Guide