The BC Supreme Court delivered an unprecedented decision this month that a parent did not have the right to waive her child’s right to sue by signing a commonly used release. The case, Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385, came about when the infant Plaintiff alleged that he suffered injuries during a martial arts lesson. He claims that his injuries were caused, in part, by the negligence of the martial arts school and its principal.

The infant’s mother signed a release when she enrolled her son at the school. The release clearly stated that the school shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the school.

The infant alleges that he suffered the injuries during a sparring match with another student (also named as a defendant). The allegations against the school and its principal include failing to: screen and instruct participants; require suitable protective gear; and supervise the sparring matches.

The school and its principal brought a summary (Rule 18A) application to dismiss the claim against them based on the release signed by the infant’s mother. The mother, who admitted she did not have any difficulty understanding English, said she signed the waiver but did not read it carefully and had no intention of waiving her son’s right to sue for injuries resulting from the school’s negligence.

The main issue before the court was whether a parent can effectively execute a pre-tort release on behalf of a minor.

Counsel for the Plaintiff and Defendant highlighted numerous decisions in support of their positions but none were directly on point. Many cases dealt with the settlement of claims for damages and releases executed in these circumstances by an adult on behalf of a minor. The court found these cases of limited assistance in addressing the issue of a pre-tort release executed on behalf of a minor. The only case somewhat on point was M v. Sinclair (1980), 15 C.C.L.T. 15 where a pre-tort waiver was signed by both the infant plaintiff and his father. The court in that case held that the infant was incapable of signing the waiver on his own behalf and the waiver signed by his father did not clearly bar claims in negligence. In obiter the court said that the parental right to waive an infant’s claim is tenuous.

The court turned to the Law Reform Commission of British Columbia Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities (October 1994) for guidance. The Commission expressed the view that signed waivers in connection with minors’ participation in sports activities are unenforceable under the Infants Act [RSBC 1996] c. 223 (the “Act”).

The court considered Section 40 of the Act, which governs contracts entered into by parents. The court stated that, “Its plain reading suggests a guardian cannot enter into any binding agreements other than the specific excepted contracts unless the contract is approved by the Public Trustee.” Of note, the Act prohibits parents from releasing infants’ claims after a cause of action has arisen. It does not specifically address pre-tort releases.

The court held that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors (with the exception of parents’ consent to health care). The court found the Act’s rationale, prohibiting parents from releasing infants’ claims after a cause of action has arisen, applies to pre-tort releases as well.

You may ask whether this decision can be sidestepped by asking parents to indemnify operators with respect to legal action by their children? The Law Reform Commission of British Columbia, in the report noted above, said that such agreements are contrary to public policy. Further, this scenario is specifically addressed in section 40(3) of the Act which states that an agreement to indemnify in these circumstances is void without the Public Guardian and Trustee’s consent or the court’s approval.

The case against the sparring partner, school and its principal will proceed and we will keep you posted if the matter goes to trial.