to send a “commercial electronic mes- sage,” a business generally needs to receive consent (either express or im- plied) from participants and to comply with mandated content/unsubscribe information. Senders of commercial electron-

ic messages must keep a record of all documents of consent, methods through which consent was collect- ed, policies and procedures regarding CASL compliance and all unsubscribe requests and resulting actions. The penalties for non-compliance

can be severe. One Quebec business was fined $1.1 million in 2015 for send- ing spam emails to individuals whose email addresses it had found through scouring publicly available websites. These emails were found to contravene the CASL provisions because they were sent without the recipient’s con- sent and were sent with a non-comply- ing “unsubscribe” function. Appropriate CASL compliance mea-

sures may include having a proper consent form, consent tracking system, and identification and unsubscribe re- quirements in place. Businesses must also ensure that their staff are prop- erly trained since employers may be liable for non-compliance by their employees.

dangerous. A properly executed waiv- er can protects a business from costly and time-consuming litigation. The Ontario Court of Appeal has

confirmed that if a waiver is correct- ly drafted, presented and properly ex- ecuted by the participant, courts will enforce the terms of the release. On the other hand, a badly-draft-

ed waiver can potentially lead to seri- ous liability down the road. In a 2014 Ontario case, a participant in a zip- lining activity signed a waiver and even initialled the waiver eight times. However, in this case, while the words “participant agreement” were in capital letters, the more important phrase “in- cluding assumption of risks and agree- ments of release and liability” was in smaller type and the waiver was on the last page of the agreement. There were also typographical er-

rors and a failure to describe the spe- cific legal rights being waived. The court found that a full trial was neces- sary because of the potentially confus- ing language. It is almost certain that this trial would be a long and expen- sive one for the activity provider. To ensure you have an enforceable

waiver or release, provide the waiver before the person engages in the activ- ity and, especially if it is a boilerplate waiver, bring it to the attention of the person. A properly drafted waiver must also

describe the kind of conduct amount- ing to negligence that it covers and it should also be easily understood. Lastly, employees should receive train- ing to ensure that all the requirements are met when they present clients with a waiver.

5. AODA and OHSA Policies All Ontario businesses must comply

4. Waivers A waiver (also known as a release)

is a contractual clause that prevents a person from taking legal action, such as suing for personal injuries sustained as a result of participating in a fitness activity. The importance of waivers is evi-

dent when one considers that many fitness activities are inherently

with the provisions of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Also known as the Customer Service Standards, it re- quires that “every provider of goods or services shall establish policies, prac- tices and procedures governing the provision of its goods or services to persons with disabilities.” Fitness businesses must provide

training for employees about the pro- vision of goods or services to persons with disabilities. They must also post notices stating that the documents

required under the Customer Service Standards are available upon request, and it must notify employees if there are temporary disruptions in facilities or services which may affect persons with disabilities. In addition, businesses must com-

ply with the Occupational Health and Safety Act (OHSA), which includes pre- paring, reviewing and posting a writ- ten occupational health and safety policy and developing a program to implement that policy.

Fitness businesses also need to be

aware that under new rules, employers must prepare policies regarding work- place violence and workplace harass- ment and review them with staff at least annually. There are many legal requirements

with which a fitness business must comply. Many of these exist to protect employees and customers alike and have serious repercussions for the em- ployer if breached. Don’t expose your business to a po-

tentially ruinous lawsuit. Protect your- self with appropriate legal advice. FBC

Fiona Brown is a litigation lawyer at Aird & Berlis LLP in Toronto. She represents employers across various industry sectors on employment and labour law issues, including discipline, ter- mination, severance issues, strategic restruc- turing and the development, interpretation and application of forward thinking workplace poli- cies and procedures.

Pavle Levkovic is an articling student at Aird & Berlis LLP.

July/August 2017 Fitness Business Canada 27

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