COVID-19-specific liability waivers: New reality for outdoor/adventure operations?
Tuesday, June 02, 2020 @ 11:40 AM | By Ryan Morasiewicz
Outdoor/adventure businesses — essentially shut down in the initial months of the pandemic — are preparing to restart their operations and welcome back guests. They are examining what measures they must take to protect themselves and minimize the risk of COVID transition to employees and customers. No doubt this will include significant safety measures, as dictated by provincial health officers, involving cleaning/disinfecting, use of personal protective equipment and so forth.
No matter the steps and precautions taken, however, when businesses reopen there is always a chance that their customers can become infected by COVID-19 at their operation through standard community transmission. The risk is real — back in March, three different heli ski operations in British Columbia were left scrambling after guests at their remote lodges tested positive (after the guests had returned home to the United States).
What legal precautions can a business take against COVID-19 liability?
Liability waivers are the standard tools that outdoor/adventure businesses use to protect themselves from legal risk. As a reminder, a liability waiver is a contract that prevents the person who signed it from taking legal action and suing the owner/organizer of an activity for injury. In the adventure business, a waiver typically addresses two significant things: 1) identifying the “inherent risks” of an activity, and 2) releasing the business from liability for injuries suffered by the participant in the course of the activity (including those injuries caused by the business’ own negligence).
Identifying an activity’s inherent risks on a liability waiver is essential, as there is Supreme Court of Canada authority that says a business that hosts an activity is not responsible for injuries that are a consequence of the inherent risk of that activity. How does a business prove what the inherent risks of an activity are? The simplest method is to have the participant sign a form that specifically identifies and acknowledges exactly what those risks are.
While the waivers in different sectors of the outdoor/adventure industry are unique to themselves, you would probably be hard-pressed to find a pre-2020 waiver that lists infection by a virulent coronavirus as an inherent risk of the activity in question!
Even though liability waivers are routine within the outdoor/adventure industry and their requirements are well known, it is unclear whether the content of pre-existing waivers will be sufficient to address COVID-19-related injuries. Lawyers draft waivers with an eye to precedent — what features of past waivers judges have cited as key elements when they uphold them in court. To date, Canadian judges simply have not yet had to address 1) whether a business is liable for injuries when their customer contracts COVID-19 at their activity/event, and 2) whether the language in a “standard” liability waiver is effective in such circumstances.
As public health restrictions lessen over the coming months, and outdoor/adventure businesses examine how their operations will run in the new public health landscape, they are also questioning whether their existing waivers provide them with a sufficient level of protection.
Most existing waivers cover injuries; some may even address communicable illness or infection to some degree. There is, however, no ability to definitively conclude that COVID-19 would be covered under such terms. Courts require waivers to be clear and unambiguous — so that customers fully understand the risks associated with the activity that they are undertaking.
Waivers are also likely to be construed by the court against the party who drafted them, meaning that any ambiguity will be resolved in the customer’s favour. If the risk of COVID-19 transmission/infection in an outdoor adventure activity is not specifically addressed in a waiver, is it reasonable to expect a customer to be aware of its possibility and to further disclaim any associated legal recourse should they contract it?
Given these circumstances, it is wise for outdoor/adventure businesses to closely examine their existing liability waivers and consider whether they will provide sufficient coverage upon reopening in the new COVID-19 landscape. Revisions to existing documentation — or even an additional stand-alone COVID-19-specific waiver — may be required to protect the operation from possible COVID-19 liability.
Despite everyone’s best efforts, COVID-19 infections will continue over the coming months, or maybe even years. Society has had to change and adapt to meet this situation. Outdoor/adventure businesses may likewise have to modify their legal practices if they want to properly protect themselves.
Author’s note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances.
Ryan Morasiewicz is senior counsel with MLT Aikins LLP in Vancouver, where he leads the firm’s outdoor/adventure legal practice group, adventurelawyers.com and chairs the litigation group of the Vancouver office. His practice focuses on general commercial and insurance defence litigation. Reach him at firstname.lastname@example.org or (604) 608-4576.
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