Waiver Execution System
As a risk management technique, waivers are only one form of managing risk by transferring the risk to the participant through a contract. Since the person signing the waiver does not have a chance to negotiate its terms, the courts are very strict in ensuring the provider of the services meets all requirements under law. If they fail to do so, then the judge will not enforce the waiver. Consequently, a waiver should be seen as one tool used as part of a comprehensive risk management plan.
In order to make sure your waiver is more likely to be upheld in court, there are procedures you can create in order for your waiver system to be more effective. The following are elements of an effective waiver execution program which I recommend you incorporate. Please use the suggestions below within a framework that works for your organization.
Notice
As best you can, provide participants with as much notice as possible that they will be required to sign a waiver or they will not be allowed to participate in your program. An effective way to do so is by posting your waiver on your website. An additional measure is to make mention of this requirement in brochures/client correspondence.Time for Reading
Make sure the participant has ample opportunity to read and understand the waiver. It is up to the participant if they choose not to read it before signing. However, they should not be hurried into executing the waiver (i.e. getting them to sign quickly because transportation to the launch site is leaving).Strict Policy
Strictly enforce the requirement that nobody can participate without signing a waiver. This should also include a control system to ensure nobody slips through the cracks. I suggest a list of participants be provided to your administrator/witnesses so that they can check off each person as they sign.Witnessing
Although the waiver might be available on the website, make sure it is executed in front of one of your staff/volunteers/officers/directors. As a witness, your representative is ensuring the participant had a chance to read the waiver before signing. If the waiver is executed ahead of time, you have no evidence of the procedure taken to sign it. Furthermore, the witness should check each waiver carefully to make sure it is executed correctly (signed and initialed) and the participant's contact information and the date are legible. (Don't let people use intentionally messy writing which can't be read)Attitude
The waiver is a serious contract in which people are giving up certain statutory rights. Therefore, your representative should not say anything about the waiver which suggests it is anything other than an important document. There should be no misrepresentation that the waiver is an application form, or a meaningless formality. It is best to present the waiver along the following lines, "Here is our waiver that you are required to sign in order to participate. Please read it carefully as you will be giving up certain legal rights".Storage
Waivers should be stored in a safe place for at least 3 years. After an injury, an adult has 2 years to begin a legal action against you for negligence and an additional year within which to serve you with notice. As for minors, this limitation period does not begin until after they turn 19 (in B.C.). Therefore, store any Waivers/Parental consent Addendums until 3 years after each minor reaches the age of 19.Minors
Minors cannot be held accountable for any contract they sign, even if their parent/legal guardian signs on their behalf. However, the waiver and Parental Consent Addendum can be used as evidence in court that the minor and their parent understood the risks involved in participating and voluntarily assumed this risk. Therefore, if your representatives think it is possible the participant is a minor, they should ask for identification and have the Parental Consent Addendum signed. No parental signature = no participation. Also, please note that "legal guardian" is someone who legally has the responsibility over a minor. This does not include a teacher, aunt/uncle or friend's parent.
Creating procedures for your organization for a proper waiver execution system will increase the likelihood that your waiver will be upheld in court. The recommendations above will help you with that process.
