Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Voluntary Assumption of Risk

Voluntary Assumption of Risk

By:

Posted July 30, 2019

The concept of voluntary assumption of risk is often raised in defence of claims against occupiers. The law regarding a party voluntarily assuming risk is well established in Canada.  It is covered by the Latin maxim – volenti non fit injuria. This maxim stands for the proposition that no wrong can be done to a person who consents to the injury.

Voluntary assumption of risk means that when a person engages in an activity, and they accept and are aware of the risks inherent in that activity, they cannot later complain if they sustain an injury during the activity. They also cannot seek compensation for that injury.

If a defence of voluntary assumption of legal risk is successful, then it is a full defence to a negligence claim. But in order to establish this defence, the onus is on the defendant to prove that the plaintiff expressly or impliedly agreed to incur such risk voluntarily, with full knowledge of the nature and extent of the risk.

Waiving Liability

If the defendant is relying on the fact that the plaintiff signed a waiver of liability, the waiver must have been brought to the plaintiff’s attention before the activity occurred. It must adequately detail the risk the plaintiff is accepting, which could be signified with a signature.

A court has found that a sign at a riding academy warning “Riders Ride at their Own Risk” did not protect the defendants from liability. When an injury occurred and this case was brought before the Court, the Court found that there was no evidence that the sign was brought to the injured person’s attention. In addition, the Court found that it was “doubtful whether the words used are wide enough in their ordinary meaning to cover negligence on the part of the servants of the Riding Academy.”

By way of contrast, consider another case where the Court found that there was a voluntary assumption of risk. Two people went to an archery range managed by the City of Toronto. The City had posted a sign, outlining a set of rules for the archery range and warning archers to enter at their own risk, at the front of the range. One of the archers accidentally fired an arrow into his friend’s eye as the other archer was collecting arrows down the field. Both archers admitted that they had read the sign, which expressly prohibited this kind of conduct. The Court found that the sign was “obvious, legible, concise and understandable.” In the result, the City was not held liable.

Occupier’s Liability

Under the Ontario Occupiers’ Liability Act, an occupier of premises owes a duty of reasonable care to ensure that persons entering the premises are reasonably safe while on the premises. However, this duty of care does not apply in respect of risks willingly assumed by a person entering the premises. In such a case, the occupier only owes a duty not to create a danger with a deliberate intent of harming the person and to not show a reckless disregard of the presence of the person or his property.  A well-placed sign outlining the potential dangers of entering the premises may protect the occupier if a person disregards the warning and enters the property.  The landowner would not be liable for any ensuing injuries as long as the owner did not set up traps or other mechanisms designed to cause injury.

This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

More Resources

Blog |
Business Law
By: 

Posted June 18, 2024

This is an update on my earlier blog posted in 2022 titled “New Requirements for Private Federal Corporations to Report Individuals with Significant Control Coming[...]
Blog |
Estate Litigation
By: 

Posted June 11, 2024

“For it is in giving that we receive.” –Francis of Assisi Many of us grew up hearing this mantra. Good people give back. Generous people[...]
Blog |
Real Estate
By: 
What is title? “Title” is a legal term for a person or company’s rights of ownership in a private property. This is different from a[...]
Blog |
Wills, Trusts and Estates, Business Law, Real Estate
By: 

Posted May 28, 2024

The recent announcement from the Federal Government regarding an increase in the capital gains inclusion rate for individuals, trusts, and corporations has sparked significant discussion.[...]
Blog |
Family Law
By: 
When couples part ways, the shared ownership of a matrimonial home often becomes a contentious issue. In Ontario, the law recognizes two forms of co-ownership:[...]
Blog |
Real Estate
By: 
If you are purchasing a home in Ontario, you likely know that you should retain a real estate lawyer to close the transaction for you.[...]
Ted Masters

Ted Masters

My practice is focused on helping people who have been injured in car accidents or through medical negligence or who have been denied disability insurance benefits. With over 40 years of experience as a personal injury lawyer, I understand how a serious injury or denial of disability benefits affects not just my individual client, but their entire family. I am alert to each client’s individual physical, emotional and financial needs and challenges. I work to achieve an outcome that is client focussed. As a trained mediator, I understand that my client’s personal goals must be met in order to come to a satisfactory resolution of their case, preferably through a reasonable settlement, but by trial judgement if necessary. Although assisting individuals has been the focal point of my legal career, my clients get the benefit of my wide range of litigation experience including disability claims, intellectual property litigation, commercial disputes, Indian... Read More

Read More About Ted Masters

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.