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Electronic Waivers – What Is Required for Their Effectiveness?

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In the 2020 decision of Zaky v. 2285771 Ontario Inc., a summary judgment motion was brought regarding the electronic waiver which was signed by the plaintiff, prior to the use of an indoor trampoline. As a result of the plaintiff’s use of the trampoline and trying to land a back flip, the plaintiff landed hard on his head and suffered serious injuries, including a C7 vertebra fracture that required surgery.

Prior to entering the trampoline area, the plaintiff executed an electronic waiver document, completed at a kiosk at the premises. The waiver contained very specific language regarding a hold harmless clause covering claims of negligence and breach of the Occupiers’ Liability Act. Accordingly, the defendant moved for summary judgment, based on the waiver. The defendant took the position that the waiver executed by the plaintiff, was a full defence to this action and therefore, there was no genuine issue requiring a trial.

The defendant stated that the basis for relying on the electronic waiver, was as follows:

  1. The exclusion of liability (waiver) is not unreasonable in the context of a dangerous sport or activity;
  2. It is immaterial that the plaintiff signed the waiver electronically, rather than manually;
  3. It is immaterial that the plaintiff did not read the waiver, unless the plaintiff can prove that:
    (i) he/she was mistaken about the document;
    (ii) the signature was induced by fraud of misrepresentation; or
    (iii) where the defendant ought to have known that the plaintiff did not intend to be bound by the waiver and the defendant failed to bring the terms of the waiver to the plaintiff’s attention

In this instance, the focus was on whether the defendant took reasonable steps to bring the terms of the waiver to the plaintiff’s attention. On that basis, the motion was dismissed.

Based on the facts, the plaintiff was directed to a kiosk to execute the waiver, in a rushed manner, to meet the jump time. None of the important terms of the waiver were highlighted, bolded or in a different colour, and there was no check box beside the important components. There was no other communication to him from the defendant about the waiver.

Accordingly, it was found that there was a genuine issue for trial: whether the defendant took reasonable steps to bring the terms to the Plaintiff’s attention.

The decision raises some very important criteria necessary for electronic waivers to be effective bars – namely that the information has to be brought to the attention of signees, using a variety of means.  Given that electronic waivers are becoming more ubiquitous in today’s society, the underlying law still supports that the waiver needs to have the appropriate measures in place, to ensure that the signee knows what they are signing; even if there is no human contact explaining the form.

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Haig DeRusha, DeRusha Law Firm