There are an increasing number of independent gyms and specialized fitness studios popping up in Toronto. Apart from athletics, the city also provides a growing list of recreational activities such as escape rooms, axe throwing and archery tag to people looking to blow off steam on the weekends. While these businesses provide a diverse array of activities, almost all of them use liability waiver forms to protect themselves against customers who may be injured while participating in their services.

Liability waiver forms, often referred to as waiver forms, are drafted with varying degrees of complexity and quality. Businesses in their early stages of development often overlook the need to have well-drafted waiver forms. Instead, the business owner relies on templates borrowed from similar industries, colleagues or even the Internet. While this may be cost-effective, businesses cannot, and should not, ignore the possibility of ‘all-hell breaking loose’if a participant is injured and contemplating a lawsuit. A well-drafted waiver form, tailored to meet a business’ specific needs and infrastructure, could save substantial amounts of money and headache in the event that litigation is pursued.

Waivers and tattoo studios

Throughout this post, I’m going to use tattoo studios as a case study for the discussion of waiver forms. Why the tattoo industry? For one, it’s an interesting practice. Regardless of how you feel about the aesthetics or its community, tattoos are here to stay (quite literally). Personally, I am glad that the industry is shedding its skin of the scarring stereotype (pun intended) of crime and taboo. We’re entering a positive reality that artists and their clients are mostly well-educated, skilled and crime-free members of society. I especially hope this post helps inform aspiring artists and apprentices and serves as a refresher to seasoned artists looking to update their policies.

What are liability waiver forms meant to do?

A liability waiver form is a contractual document used by a business to release itself from liability for injury to a customer/participant, arising from ordinary negligence by that business. To be effective, waiver forms must be signed before a participant engages the business in its specified activity. Signing the document prior to the activity protects the business in advance of any future potential injuries that a participant may suffer from.

Do liability waivers completely protect me from getting sued?

The short answer is: no. No waiver is “bulletproof”; an aggrieved participant can still bring some sort of legal action to attempt to set aside the liability waiver form.

That said, if the matter ends up being adjudicated on, a well-drafted waiver could be upheld and end the matter in favor of the business. Most businesses also have insurance coverage to protect themselves in instances where consumers sue them. While these policyholders are given a degree of comfort, insurers determine whether to take on a claim by assessing a business’ risk management policies. If a business has a badly drafted waiver form and lax safety policies, it lowers the prospect of being covered. Ultimately, taking some upfront costs in preparing a professionally drafted waiver could save exceptional amounts of time and money.

The Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia[i] sets out a 3-part test to assess the enforceability of a waiver:

  1. Is the clause applicable in the circumstances?
  2. Was the clause unconscionable at the time it was made?
  3. Should the court refuse to enforce the clause because of the existence of an overriding public policy?

The issue of enforceability is something that needs to be reviewed specifically with a legal professional at the time of drafting a waiver form, particular for your business’ specific needs, and also if you are preparing for some sort of litigation.

More importantly, businesses with waiver forms should ensure that a signing participant is not misled into signing a document fundamentally different from what they intended to sign and is not misrepresented by the business of the form’s contents.

Liability waiver basics

Short & Sweet

A waiver form should be kept as succinct as possible. The document should be written in a clear and unambiguous language. Consumers should be able to easily understand what rights they are waiving with little to no explanation necessary.

While waiver forms should be concise, they should also be drafted for a specific audience. In instances where businesses cater to specific demographics or industries, incorporating jargon may be appropriate.

Caution

Liability waiver forms should always include a statement at the very beginning of the document warning participants that they are waiving important legal rights upon signing. This preamble should be capitalized, bolded and differentiated in some way from the rest of the document’s text to grab the reader’s attention. You are effectively putting them on notice that they are giving up rights.

Description of Activity

Waiver forms should describe the business activity as accurately as possible. It is not enough to make a general reference to the physical activity that participants will engage in. If a customer requests an image tattooed on their right shoulder, the waiver shouldn’t just describe the activity as “…getting a tattoo.” An artist risks having a waiver set aside if the final product is not expected in terms of color, placement, size, or even accuracy of design.

In the tattooing example, a suggested method of reducing risk would be to leave a blank space for the description of the activity. After having a discussion with the client on what they want, an artist can fill in the details before having the client sign. If a custom image or font is drawn up, artists should also consider adding it as a schedule to the waiver to increase the form’s strength.

Businesses should also consider all the different levels, stages, and possible experiences participants could engage in. If there are several levels or varying experiences, a service provider should consider having several versions of forms to accommodate different client experiences. A good example of this would be a go-karting racetrack or an obstacle course where there are varying degrees of difficulty or formats.

Assumption of Risk

A brief statement should also be included where participants acknowledge the type of activity they are about to engage in has associated risks, and that voluntary participation means they understand the risk(s), whether caused by the negligence of the service provider or otherwise.

Businesses increase the likelihood of having a waiver form upheld if this provision is displayed in a prominent and unambiguous manner. Some ways to achieve this are through modifying the font in size, design, or shape.

Again, service providers should keep in mind risks that are specific to their industry and consider listing them explicitly within the waiver. With the tattoo industry, certain blood borne diseases, scarring, and pigmentation issues should be listed out. Given that all skin types are different, consider also carving out a risk that a final product will not be identical to an image or template provided.

Coverage: Ordinary Negligence Versus Gross Negligence

Apart from limiting a service provider’s liability in damages suffered by a participant on their own accord, a waiver is used to absolve a business’ liability from ordinary negligence, but not from gross negligence. Generally speaking, ordinary negligenceis when a party fails to exercise the standard of care that a reasonably prudent person would have used under similar circumstances. In a tattooing case, that would possibly encompass some sloppy line work, bad coloring, or even missing a part of a design. However, depending on the facts of a potential mishap, the actions could potentially qualify as gross negligence.

Gross negligence is essentially a higher level of misconduct than ordinary negligence. It includes an extreme departure from the ordinary standard of care, reckless conduct, intentional wrongdoing, and a wilful blindness to the consequences of an action or failure to act. Typical examples of this would be not cleaning/sterilizing equipment, covering up open wounds, keeping work stations at an acceptable level of hygiene or tattooing something against the customer’s wishes.

The facts of each scenario of misconduct, alongside a consideration of industry standards, will oftentimes determine what would be considered ordinary versus gross negligence. The larger the departure from what is reasonably expected from a hypothetically sensible service provider in similar circumstances will be the measure.

Acknowledgement

A declaration should be included evidencing that participants have read the form entirely and understand the terms provided. It should also restate a waiver of rights. This clause should be stylistically differentiated to draw the reader to the fact that the waiver is a unilateral agreement with onerous terms. The purpose of this notice is to limit a participant’s ability to argue that they didn’t read or understand the provisions in the agreement.

Additional Considerations

Minors

In Ontario, the age of majority is 18 years old. If businesses plan on catering to minors, it is wise to include a section where parents or legal guardians can sign off. Having adults authorize minors’ actions, regardless of whether an activity has provincial or federal age restrictions, protects a business from arguments related to minor’s decision-making capabilities.

While there is no age restriction for getting tattooed, given the permanence of a tattoo, most businesses opt to restrict their services to customers 18 and over. Chances are, even if a minor is certain of a design and seems mature enough to decide to get tattooed, courts will look unfavourably at a studio that accepts a minor’s signature without any parental oversight. Youth is impressionable and subject to change more likely than an adult.

Operating Procedures

Apart from drafting a solid waiver form, service providers should implement thorough and well-rehearsed safety and operation protocols. These procedures should be made out in writing, provided to all staff, and continually updated to reflect changing industry standards.

Many industries require mandatory training and licensing courses as a prerequisite to opening up a business. For tattoo artists, a deep and continued knowledge of health and hygiene is a requirement. While passing these entrance requirements are starting points, continually updating information, documenting site-specific policies, and investing in advanced training is a key to avoiding liability claims.

In the case of Huckle v. Spencer[ii], the court found a tattoo studio liable after an artist misspelled the customer’s tattoo to read “See You at the Cossroads” rather than “See You at the Crossroads”. In this case, the artist showed the claimant the template both over the computer and on a stencil before placing it on her body. The claimant alleged that there wasn’t sufficient time for her to inspect the stencil in the mirror before being tattooed. She also asserted that the stencil was pictured backwards since it was viewed against a mirror, adding to her confusion. In contrast, in Ullock v. Slaunwhite[iii], the court absolved an artist’s misspelling of a tattoo. The claimant had a prolonged opportunity to view the stencil and the design on her skin and was regarded as the maker of her own misfortune. These cases illustrate the importance of implementing proper procedures alongside a waiver. While it seems fairly obvious to provide a clear, unobstructed view for the customer to inspect a design prior to being tattooed, a documented and engrained policy of letting clients inspect designs for specified periods add weight to being protected.

Most regulated sectors have an oversight body that conducts annual inspections to ensure compliance with federal, provincial and municipal health and safety regulations. Simply having the bare minimum is not an ideal facet to ensure peace of mind. By gaining government authorities’ good graces, businesses add weight to their own credibility and protection if claims arise. What’s more, good policy controls satisfy insurers and could lead to better premiums.

Conclusion

While waivers can certainly be drafted to improve a business’ position in excusing liability, nothing is ‘bulletproof’. However, the difference between an expertly drafted waiver and a template pulled from cost-effective sources puts a service provider in a more advantageous position of defending itself in the eyes of the law. While the initial time and cost to tailor a liability waiver form may be higher upfront, the cost if litigating and interpreting a vaguely written form could cost thousands of dollars.

Disclaimer: Information made available on this website in any form is for information purposes only. It is not, nor is it intended to replace, legal advice. Contact Chris Chu Law to discuss a specific legal issue and please note that contacting Chris Chu Law, on its own, does not create a lawyer-client relationship.