Children’s Right To Sue Cannot Be Waived in BC

Posted: May 11, 2012 in Waivers
Tags: , ,

As discussed at my BC Injury Law Blog in 2009, BC law does not allow Infants (defined as anyone under the age of 19) to waive their right to sue.  This is so due to legislation called the Infants Act.

Waivers signed by Infants are not enforceable.  Furthermore, waivers signed by Infants parents are also not binding on the infant making these an ineffective means of protecting martial arts schools.  This was demonstrated in a 2009 BC Supreme Court decision.

In the 2009 case (Wong v. Lok’s Martial Arts Centre Inc.) the Plaintiff alleged he was injured when engaged in a sparring match with a Defendant in the lawsuit. The Plaintiff claimed that the defendant company was “negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches. ”

At the time the Plaintiff began taking martial arts courses with the Defendant the Plaintiff’s mother signed a contract which stated in part that “It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!”

The Martial Arts School brought a motion to dismiss the lawsuit based on this contract.   Mister Justice Willcock was asked specifically “whether a child’s parent can effectively execute a pre-tort release on behalf of a minor”.  The Court held that the contract was not enforceable because the Infant’s Act “does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. ”

Mr. Justice Willcock engaged in a thorough and lengthy analysis of the law at paragraphs 19-53 of the judgement which are worth reviewing in full for anyone interested in BC Infants Law.  In holding that this contract was not enforceable Mr. Justice Willcock concluded as follows:

[55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school…

[59] I have considered the defendant’s submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist.(1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law.  (Malamud and Karyan “Contractual Waivers for Minors In Sports-Related Activities” (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in “Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools” (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, “The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children’s Tort Liability Claims” (2001-2002) 36 U.S.F. L. Rev. 535)

[60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants’ claims after a cause of action has arisen applies with some force to pre-tort releases as well.

[61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.  The Defendant’s application is therefore dismissed.

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Comments
  1. Neil Carfra says:

    I can’t tell you how often I have to explain this to my clients: efforts to exclude liability to minors won’t succeed in BC. Parents need to be aware of this. Good on you for posting this and good luck with this blog, Erik.

  2. EMagraken says:

    Thanks for your comment Neil, all the best.

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