Releases, Waivers and Indemnification
Given the nature and activities of the girls’ program, another way to ensure that you minimize the risk associated with the operation of programs is requesting that participants or, in the case of minors, participants’ parents or legal guardians, provide a comprehensive written release and waiver of liability against any injury that their children may suffer while attending the programs.
A waiver is defined as a voluntary relinquishment or abandonment (giving up) of a right, claim, or privilege. An indemnification requires the person signing the indemnity to fully compensate the organization for any costs, damages or losses that it suffers as a result of the actions or inactions of the individual. The use of a waiver (collectively defined as including a release and waiver and in some situations indemnification) is an effective way to minimize risk, because it transfers your personal risk to another person or organization.
There are a variety of reasons why you should have your participants sign a waiver. For example:
It is a warning device
It warns participants what dangers they will be facing from the activity. It also warns them that they are waiving their right to sue if anything goes wrong.
It discourages lawsuits
It discourages aggrieved parties from suing. However, it does not prevent them from suing.
In the event of lawsuit, it can be a strong defence
If done correctly, it can help in your defence by demonstrating that the participant was made aware of the potential risks of the activity and that he/she intended to sacrifice certain legal rights. It also eliminates accusations that an individual would not have taken part in the activity had only he/she known of the dangers involved.
It provides a list of participants
If something does happen, the signed waivers will allow you to create a list of people who could serve as witnesses.
A waiver that is properly written and clearly explained to the person who signs it helps to protect your organization from liability. However it must be prepared with the assistance of legal counsel in your jurisdiction.
Below is a list of some factors that effective waivers should address and how they could be administered.
An effective waiver should include these basic ingredients:
1. The name of the person who wants to participate in the activity.
2. The name of the organization(s) the waiver is attempting to protect. Use the proper corporate name.
3. Include all possible persons you want protected by the waiver (for example, directors, officers, employees, volunteers, coaches, officials, site supervisors, etc.).
4. The activities covered. Again, be specific and clear.
5. The specific foreseeable risks or dangers of the activity.
6. If there will be travel to or from the event, list this risk as well.
7. It should use the word “negligence.” You are stating that even if your organization, staff, volunteers are negligent the participant is still waiving the right to sue.
8. If applicable, include a statement that medical personnel will not be available at the site of the activity.
An effective waiver should be easy to read:
1. It should be written in clear and understandable language with the help of legal counsel.
2. It should have reasonably sized type.
An effective waiver should stand-alone:
A waiver form should be a stand-alone document. It should not be incorporated as a middle page in a much larger document with rules and regulations for program participation or tacked onto the end of a document that includes multiple terms and conditions not related to the rights being waived.
Some potential issues to watch out for:
“Just tell me where to sign” is a red flag
- Give participants enough time, at a convenient time, to read and sign the waiver and ask questions if they have them.
- You are looking for informed consent. You do not simply want a signature. A signature alone may end up being worthless.
- Someone should ask the participant clearly: “Did you fully read and understand this waiver of liability ... do you understand what you are signing?” Get a clear positive response and witnesses the signature.
If the participant is not an adult (18 and over in Ontario), their parent or guardian must sign the waiver but even then it may not be effective
- Participants under the age of 18 cannot contract with you. Therefore, if a participant is under 18 years of age, you should ask for the signature of the participant (generally, if 14 years of age and over) and his/her parent(s) or guardian(s). Even with the parent's signature, it is not at all clear how effective the waiver will be in court, as the court will likely be reluctant to take away the child’s right to sue because of a document his or her parent or guardian signed, However, until the law in this area is clear, it is a good idea to obtain the signature of the parent(s) or legal guardians and the child (if 14 years of age and over).
- It would be negligent not to ensure that parents know about the activities their children are engaging in and the specific risks involved in these activities. It would be best practice to have the parent and child both sign in front of your witness if possible. This is more reason to ensure your waiver is crystal clear in wording and heading.
- If there is travel involved, you should also consider getting permission from the parent to make necessary medical decisions while travelling.
- If you are not sure if someone is 18 or over, ask. If you are still not sure, ask for proof.
Have a staff member or a mature volunteer witness signatures
- Waivers should be signed in the presence of the witness, not mailed to be signed at home. That way you can ensure time was taking to read and understand what was being signed.
Do not use the same waiver for different activities
- It is impossible to have a single waiver and follow the suggestions above, especially the explicit description of the activity and its risks in all situations. Although it may be tempting to create a single waiver and use it for all of your events, activities, trips, etc. – don't do it! If you expect a waiver to work as a warning device and as insulation against claims, you need to devote the time to crafting thoughtful waivers.
Every participant must sign
- Ensure that every participant sign the waiver prior to participating in the activity or event. If they don't sign, they don't participate. No exceptions.
Never use a waiver without first having it reviewed by a lawyer
- A waiver is a legal contract. Do not contract without legal review. It would be negligent to do so otherwise and will expose your organization to unnecessary liability.
A signed waiver is only one of a number of risk transfer tools that can be used to address some of the risks associated with operating a children and youth program. In addition to securing a waiver from each participant and/or their parent(s), you also need to provide adequate information and training to all employees and volunteers who will be participating and delivering the program. In addition, consideration may also be given to having volunteers sign waivers as well in some situations.
