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The British Columbia Supreme Court has delivered an
unprecedented decision that a parent did not have the right to
waive her child’s right to sue by signing a commonly used release.
The case, Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385,
came about when the infant Plaintiff alleged that he suffered
injuries during a martial arts lesson. He claims that his injuries
were caused, in part, by the negligence of the martial arts school
and it’s principal.
The infant’s mother signed a release when she enrolled her son
at the school. The release clearly stated that the school 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 school.
The infant alleges that he suffered the injuries during a sparring
match with another student (also named as a defendant). The
allegations against the school and its principal include failing to
screen and instruct participants, require suitable protective gear,
PARENTS CAN’T
SIGN AWAY
CHILDREN’S RIGHT TO SUE
CANADA:
and supervise the sparring matches.
The school and its principal brought a summary application to
dismiss the claim against them based on the release signed by the
infant’s mother. The mother, who admitted she did not have any
difficulty understanding English, said she signed the waiver but
did not read it carefully and had no intention of waiving her son’s
right to sue for injuries resulting from the school’s negligence.
The main issue before the court was whether a parent can
effectively execute a pre-tort release on behalf of a minor.
The court turned to the Law Reform Commission of British
Columbia Report on Recreational Injuries: Liability and Waivers in
Commercial Leisure Activities (October 1994) for guidance. The
Commission expressed the view that signed waivers in connection
with minors’ participation in sports activities are unenforceable
under the
Infants Act
[RSBC 1996] c. 223 (the “Act”). The Act
prohibits parents from releasing infants’ claims after a cause
of action has arisen. It does not specifically address pre-tort
releases.
The court held that the legislature intended the Act to establish
the sole means of creating contractual obligations that bind
minors (with the exception of parents’ consent to health care).
The court found the Act’s rationale, prohibiting parents from
releasing infants’ claims after a cause of action has arisen, applies
to pre-tort releases as well.
Sky’s the limit…
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