Every January sees a dramatic influx of new members to Ontario gyms. The Central Ontario Better Business Bureau estimates that gym activity increases by 50% from December to January, and at least one gym in Kitchener reported that 70% of its new members sign up that month.
Although many of those new members stop going by this time of year, it’s important for those who continue to understand what legal recourse may be available against the gym if they are injured there. Answering that question will usually raise issues under Ontario’s Occupiers’ Liability Act (OLA), which we’ve discussed in detail before, including whether the gym’s membership agreement includes an effective liability waiver.
This post considers those issues in more detail.
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Refresher: The Occupiers’ Liability Act
The OLA is an Ontario statute that defines the duties that occupiers of premises owe to those who enter their premises. Occupiers include any person in physical possession of the premises or who has responsibility and control over the condition of the premises, the activities allowed on the premises, or who is allowed to enter. For a gym, that would be the individual or company that owns or operates the gym.
In general, occupiers must take reasonable care to ensure that people who enter the premises, and the property they bring with them, are reasonably safe while there. This duty applies to both the conditions of the premises (e.g., whether gym equipment is in good working order), and the activities that occur there (e.g., exercising).
However, there are exceptions to that general duty. We’ve discussed one of those exceptions before: If a person willingly assumes a risk when entering onto an occupier’s property, then the occupier owes a lower standard of care to that person.
But there is another exception that comes up in the context of gym injuries, and under that exception, the occupier may not owe a duty at all, so let’s turn to that now.
The OLA, Liability Waivers, and Gym Membership Agreements
When you signed up for your gym membership, you had to sign a membership agreement, which is a contract between you and the gym owner or operator. Whether you read it or not (and, as an aside, you should read things before you sign them!), that membership agreement likely included a liability-waiver provision.
Liability waivers are agreements that say that you waive any right to hold another person legally responsible if you become injured. You can see an example of a gym’s liability-waiver clause in the 2015 decision Jensen v. Fit City Health Centre. There, the gym’s membership agreement included the following language:
The Member forever releases and discharges the Club . . . from:
(a) any damages arising from personal injuries sustained by the Member, in or about the premises. The Member assumes full responsibility for such injuries and damages, including without limitation any claim for personal injuries resulting from and arising out of either the negligence of the Club . . . or the negligence of any other person[.]
Is such language enforceable?
It can be. Section 3(3) of the OLA specifically authorizes an occupier to “restrict, modify or exclude” the general duty of care. But whether the waiver is effective in a particular case depends on two other issues: whether the language is broad and clear enough to cover the injury claimed by the plaintiff, and whether the occupier sufficiently brought the waiver provision to the plaintiff’s attention before he or she signed.
As to that first issue, the court in Jensen said that it is “well established” that a general release won’t apply to injuries caused by negligence (i.e., a failure to follow a reasonable standard of care) unless negligence is explicitly covered by the waiver. You can see that that was done in Jensen, but not every gym thinks to include that language in its liability waiver.
Additionally, for a waiver under the OLA to be effective, section 5(3) requires the occupier to “take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.” Simply hiding the term in small print at the back of a lengthy membership agreement won’t work.
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Recovering for Gym Injuries in Ontario
As you can tell, understanding how the Occupiers’ Liability Act applies to a claim involving gym injuries requires a detailed examination of the facts and circumstances involved in that claim in light of the OLA’s provisions. Because of that fact, hiring an experienced Ontario personal injury lawyer is critical to the success of gym injury claims.
Preszler Law Firm is a Toronto based personal injury law firm that helps clients recover for their injuries under the Occupiers’ Liability Act and other Ontario laws. Our lawyers apply their extensive knowledge and skill to each case they take on, and we offer free consultations to help you understand your legal options and decide on the best course of action for you following an injury. If you’ve suffered an injury at the gym, contact us today to find out how we can help.