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LEGAL REPORT: LITIGATION No waivingof kids' right to sue B.C. ruling says signing release at martial arts studio didn't preclude suing for negligence down the road. BY ROBE R T TODD she signed a document thousands of parents across the country rarely think twice about. Lok's Martial Arts Centre Inc. required a common release absolv- ing it of liability for injuries students like Victor Wong might suffer, includ- ing those caused by "active or passive negligence" on behalf of the centre. To signed off, and Wong began taking weekly classes. Four years later, he was injured in a W sparring match when his adult opponent threw him to the ground. The incident continues to affect Wong, who is now 20. He broke a bone in his dominant, right arm. Surgeries have failed to cor- rect the injury, which restricts his range hen Yen To's 12-year-old son decided in 2001 to enrol in hap- kido classes in Richmond, B.C., of motion and impedes his ability to type at a computer or write for long peri- ods. The injury has dashed his hopes of becoming a physiotherapist. Despite waiving her son's right to sue, To made a claim against the martial arts studio, its principal, and Wong's spar- ring partner. Default judgment has been issued against the sparring partner, but the studio and its principal attempted to have the claim dismissed by the B.C. Supreme Court, pointing to the signed waiver. In an unprecedented move last October, Justice Peter Willcock denied the motion, saying B.C.'s Infants Act is a complete code that prevents parents or guardians from waiving an infant's right to sue. He ruled the act stipulates that the public trustee or the court must approve agreements entered into by guardians. Wong v. Lok's Martial Arts Centre Inc. — believed to be the first of its kind in Canada — raises a red flag for businesses across the country that use pre-tort waiv- ers on behalf of minors. Unfortunately, they have few authorities on which to base their response. Lawyers in Wong were unable to find any similar Canadian cases. A 2009 Law Reform Commission of Manitoba report, however, found the legal validity of waivers signed by minors or their parents to be "doubtful." Adam Chisholm, of Lang Michener LLP, notes that relevant legislation will play a big part in determining how these waivers are handled in the rest of Canada. Decisions may hinge on the common law depending on the structure of statutes, he suggests. Satinder Sidhu, of Clark Wilson LLP, agrees. "It will really depend on the Infant[s] Act-type legislation you have in other jurisdictions," she says. If courts rule that relevant legislation is a complete code, businesses will have little wiggle room to make up for the fact that the waivers are invalid, says Sidhu. www. C ANADIAN Law ye rmag.com J A NU A R Y 2010 39 JACQUI OAKLEY