"Very Faint Small" Waiver Agreement Held Unenforceable

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, finding that a waiver of a Plaintiff’s right to sue was not enforceable where the agreement was set out in a “very faint small red type“.
In this week’s case (Arndt v. The Ruskin Slo Pitch Association) the adult Plaintiff joined a recreational soft ball league.   Prior to playing the Plaintiff filled out and signed a roster.  At the bottom of the roster was a clause stating “I agree to waiver” the terms of which were set out on the back of the roster.
The Plaintiff was injured in the course of one of her games.  She sued for damages.  The Defendant applied to dismiss the claim relying on the waiver arguing that “the Plaintiff cannot escape from the consequences of the waiver merely by stating that she thought she was signing a roster and did not appreciate it was also a waiver“.
Madam Justice Humphries disagreed and found in these circumstances the waiver should not be enforceable.  In dismissing the Defendant’s motion the Court provided the following reasons:
[36] On the affidavit and discovery evidence before me, I accept that the plaintiff thought she was signing a team roster and that she did not know it was a waiver of liability.  However, the defendants are correct in stating that that is not the end of the enquiry. ..

[44] The document, looked at on its face, does not appear to be a waiver.  It appears to be a roster.  The attention of the person asked to sign it as a roster would inevitably be drawn to the lines in the box for the team signatures and information.  While there is red type above the box requiring the person to “READ AND UNDERSTAND BACK OF PAGE BEFORE SIGNING” there was, on the evidence on this application, no direction or information given by the coach who presented the document attached to a clipboard, to be handed around and signed by the team at the first practice.  The words “I agree to waiver” on the signature lines are so faint as to almost undetectable.  Unlike the waivers that have been held to be enforceable in the cases referred to above, the release is not a separate sheet and the waiver and signature are not on the same page.  The back of the form requires the coach to advise the people on the list that they are fully responsible for any damages “incurred by them”.  That was not done, nor was any step taken by the defendants to ensure it had been done.

[45] If the defendants wanted to ensure that they were released from liability it would be a simple matter to have individual release forms prepared and signed by each player.  The defendants had no means of determining if the plaintiff understood the document because they did not present it to her, leaving its nature to be explained by coaches or managers who did not do so.  The form of the document itself and the circumstances under which it was presented for signature are not such that a reasonable observer would understand its nature.  I am unable to conclude that the defendants took reasonable steps to have the nature of the document as a waiver rather than a team roster brought to the plaintiff’s attention.

[46] I conclude, on the information before me, that the waiver is not enforceable against the plaintiff.  It is not necessary to deal with the plaintiff’s additional arguments respecting consideration and the failure to date the document.

Paragraph 27 of this case is worth reviewing for the Court’s short and helpful summary of 8 other BC cases dealing with waivers.