As of August 15, 2020, gyms and recreation spaces are allowed up to 50 patrons for each indoor sport or fitness room, with physical distancing of at least two meters.
Now that Ontario has eased gym restrictions, condominium corporations should review their amenities reopening protocol, which might include a requirement that users sign a waiver of liability before being allowed access.
But are waivers enforceable?
A recent Superior Court of Ontario decision illustrated general principles relating to waivers, but also highlighted the challenges of enforcing them as a defence against claims of negligence and breach of the Occupiers’ Liability Act (and recall that s. 26 of the Condo Act deems condos to be the occupier of the common elements for the purposes of determining liability resulting from breach of occupier’s duties, not the owner).
The law allows waivers of liability, which can be a full defence against negligence and occupier’s liability. Waivers are reasonable in the context of dangerous activities and can be signed electronically or manually. It does not matter if the person signing the waiver read the document.
However, a key factor for a waiver to be enforceable is whether the terms of the waiver were brought to the attention of the person signing the document. Simply handing over a waiver to be signed or making it a requirement for participation isn’t enough in most circumstances. Reasonable steps must be taken to draw the terms of the waiver to the signer’s attention.
In the condominium context, this means condos that use waivers should carefully consider how the document is being signed by amenity users, given that waivers weren’t typically needed to use amenities pre-COVID-19. Condos might consider steps like:
- Posting signs or website alerts to residents about any amenities protocol, including a requirement that users sign a waiver of liability before access or use;
- Keeping the waiver simple and bolding important text;
- Asking users to initial crucial terms of the waiver to confirm understanding and agreement;
- Supplying or posting the waiver in advance and giving enough time for review and questions; and
- Having staff available to explain the waiver and answer any questions.
A waiver may offer protection in amenity re-opening, but only if the condo ensures that recommended health and safety protocols are observed. As with any re-opening plans, it is important that condos keep residents informed about precautions being taken in the common elements and give information necessary for users to assess the risk and conditions to their participation.