Enforceability of a Contractual Liability Waiver in Canada Compared to the United States

A business that offers its customers adventurous experiences usually asks upfront for a waiver of tort liability for injury from its customers in writing. In the United States, waivers of tort liability for injury are usually limited to ordinary negligence. Liability for gross negligence usually cannot be waived on the grounds of public policy.

On the other hand, in Ontario, a waiver of tort liabilities for negligence causing injury will not be set aside on grounds of public policy. Gross negligence is deemed merely a kind of negligence and not entitled to a different outcome than ordinary negligence. Waiving tort liability for negligence is waiving tort liability for gross negligence!

The Occupiers Liability Act of Ontario codifies some of the common law relating to owner’s tort liability. For lawsuits in tort against a municipality, there are provisions in the Municipal Act setting forth liability standards and procedures.

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