Question 1

Are hold harmless agreements enforceable in Canada?

Accepted Answer

Yes, hold harmless agreements are generally enforceable in Canada when properly drafted. Provincial Occupiers' Liability Acts in Ontario, BC, and Alberta expressly allow occupiers to modify or exclude their duty of care by agreement, provided reasonable steps are taken to bring the exclusion to the attention of the person affected.

Question 2

What is the difference between hold harmless and indemnity in Canadian law?

Accepted Answer

In Canadian common law, a hold harmless clause prevents one party from holding another responsible for losses, while an indemnity clause creates an obligation to compensate for losses. Some Canadian courts treat them as synonymous, but best practice is to include both for comprehensive protection.

Question 3

Can a hold harmless agreement waive liability for gross negligence in Canada?

Accepted Answer

Generally no. Canadian courts have consistently held that clauses attempting to exclude liability for gross negligence or wilful misconduct are against public policy and may be unenforceable. Provincial consumer protection legislation may also limit such waivers.

Question 4

What is the volenti non fit injuria doctrine in Canadian law?

Accepted Answer

Volenti non fit injuria is a common law defence meaning 'to a willing person, no injury is done.' In Canada, it applies when a person voluntarily assumes the risk of harm with full knowledge of the danger. Canadian courts require clear evidence that the participant understood and accepted the specific risks involved.

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