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LEGAL REPORT: LITIGATION Chisholm also notes that Ontario courts, for example, may rely on Rule 7 of the Rules of Civil Procedure, which deals with matters involving children. McCarthy Tétrault LLP's Jane Langford believes most judges would be reluctant to uphold pre-tort releases on behalf of minors. Courts will have to consider if parents should be able to waive their children's rights in coming to a decision. But an equally important question, suggests Langford, may be whether they agree with organizations' views that it's not their responsibility to take care of children they offer services to. "I think that's underlying the decision as well," says Langford in reference to Wong. But unless, or until, the Supreme Court of Canada offers a ruling on these releases, she thinks court decisions will be based on the seriousness of the incident being dealt with, and how the BUSINESS VALUATION DAMAGES QUANTIFICATION Established in 1979, our practice is devoted exclusively to business valuation and the quantification of economic damages. Our professionals have presented expert evidence in numerous cases across Canada and in the U.S., and have been appointed by courts, arbitration panels and government agencies as their experts. Class actions Loss of profits IP infringement Fairness opinions Shareholder disputes Matrimonial Tax litigation Competition law Insolvency opinions Forensic accounting We have also been playing an active role in the Canadian and U.S. societies that set the standards for our profession. The hundreds of technical articles and conference papers we contribute, and the publications we have authored/co-authored, form an integral part of the expert's library in both countries. Download our presentations at www.wiseblackman.com. For more information, please contact: Richard M. Wise, FCA, CA•IFA, FCBV, FASA, C.Arb. Gerald S. Blackman, CA, CBA, CFE Catherine Tremblay, DPA, CA, CBV,A AS Jean-Philippe Langevin, CA, CFA WISE, BLACKMAN LLP The Royal Bank of Canada Building 1 Place Ville Marie, 34th Floor Montreal, Quebec H3B 3N6 Tel (514) 875-8100 Toll-Free (866) 998-8100 40 J A NU A R Y 2010 www. C ANADIAN Law ye rmag.com iseBlackman_CL_Jan_10.indd 1 12/9/09 2:11:12 PM outcome will impact the child's life. Chisholm also suggests Willcock may have been influenced by more than pure legal considerations in Wong. He notes the judge held that Michael Lok, the principal of the martial arts centre, was released from liability, while the centre itself was not. "So maybe there is some- thing to be said for the background role of insurance in this decision. Perhaps the judge wanted to err on the side of ensuring that the minor would be made whole for his injury, because perhaps he presumed that the martial arts centre had proper insurance in place for these kinds of claims," says Chisholm. At the same time, no one should be surprised the B.C. court has struck pre- tort releases for minors, he says, but concedes businesses offering recreational services to children may want to recon- sider their approach. It would be hasty to toss all waivers in the shredder. After all, business owners need not lose sleep over claims from people who don't think they can bring them. "Even though it's quite possible that these waivers and indem- nity clauses have never been enforceable, by and large they may still continue to have a practical effect on the people who sign them," says Chisholm. A 1994 report on recreational inju- ries by the Law Reform Commission of British Columbia, referenced in Wong, may offer another strategy for businesses looking to cover their backs. The report opines that the waivers are not enforce- able under the Infants Act, and suggests their true purpose is to demonstrate that minors and their legal guardians have accepted inherent risk. To that end, the report suggests businesses are bet- ter off having children and parents sign an acknowledgement that they agree to assume those risks. Chisholm also looks south of the border for strategies. In the U.S., some courts have upheld arbitration clauses attached to these types of waivers, he says. "So at the very least, even if the waiver is unenforceable in court, per- haps the use of an arbitration clause in these kind of waiver, release, and indemnity contracts gives corporations another way to help manage their risk expectations," he says.