Over the past two years I have worked with an insurance provider of rafting and ski operators on a risk management educational program for their senior staff. The most requested topic was waiver forms. This seems like old news to me - here in Canada they work, and we've known that for a long time - but it is evidently not completely understood. So here it is, super simple:
A waiver form, liability release, various other titles is a legal contract giving up known legal rights in exchange for an opportunity to participate in an activity. Waivers work. Use the language your insurance provider approves. If you have not noticed, almost every established adventure operator in Canada uses a waiver that is almost identical in wording. Notice they all have a title box in yellow with a red outline? Cruise company websites to prove this to yourself (is your waiver available on your website? It needs to be). The courts in various jurisdictions have given us direction on what the waiver needs to say. The contract itself is not an issue. BUT delivery matters. How you execute this important legal document makes all the difference in its strength.
- Provide advance notice
- Provide safety disclaimer on website, notice of need to sign
waiver, and copy of waiver
- Notify at time of booking/entry into contract that a waiver form
will need to be signed prior to participation
- Identify for guests the document and its intention
- Provide time to read
- Provide atmosphere “conducive for the guest to read, understand and
execute the agreement”
- Ensure printed name is legible (for later retrieval)
- Ensure proper signature and date
- No crossing out or deletions
- Confirm that there are no questions and that guest knows what they
are signing (or provide group ‘waiver talk’ as part of safety briefing)
- Do not confuse with other signings such as rental forms or payment details
- Witnessed by (and signed in front of) trained staff
- All participants sign; provide translated version if regularly deal
with foreign visitors
- Store for retrieval for 7 years minimum, regardless of previous or subsequent signed waiver. If you deal with kids that goes out to 3 years on top of this, with variation per province.
Digital waivers are widely being used now and don't seem to have drawn any attention by the courts. I was involved as an expert on one legal case where the host company could not produce/retrieve the digitally signed waiver. If you go digital, make sure you have a bomb proof data storage and retrieval process!
Here is a mini flow chart created by one of my students at Algonquin College's Outdoor Adventure Program.
