Informed Consents versus Waivers
A waiver is the relinquishment of a known right or claim for injury or damages between consenting parties. It can be enforceable under law if the two parties are legally capable of making such an agreement, and if the waiver fairly discloses the foreseeable dangers or hazards that exist.
Currently in Ontario, the legal precedent that is set forth in the Courts suggests that
Waiver forms for persons under the age of 18 years are not recognized as being enforceable. Although there are some exceptions provided by law with respect to the ability to enter into contracts (e.g. marriage, service in armed forces, etc.) persons under 18 are not deemed to be legally capable of entering into an agreement such as a waiver that would prejudice their future right to recover for an injury. Parents, guardians, principals or teachers also have no authority to waive such rights on behalf of a person(s) under the age of 18 years.
As a result, the OSBIE risk management position is that school boards should only use Informed Consent forms (See Figure 4) for students under age 18 who are participating in any school approved and /or organized activity. Students age 18 or over may sign appropriately worded waiver forms (See Figure 5).
Often time, outside organizations insist on waiver forms being signed by the organizer of a school trip as a condition for visiting a site or participating in an activity operated by an outside vendor. Principals, Vice Principals or any school staff should NOT sign waiver forms on behalf of students as a condition for visiting any location owned/operated by an outside party.
Figure 4: (Copy of OSBIE Informed Consent – Student under age 18)
Figure 5: (Copy of OSBIE Waiver – Students over 18 years)