The Court of Appeal has confirmed that juries can hear cases involving waivers.
In Kempf v. Nguyen, 2015 ONCA 114 (C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride. The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.
The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations. She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury. She also rejected the defendant's suggestion to take a "wait and see" approach. She struck the jury and found in favour of the plaintiff.
The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law. Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence. Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day" (para. 59).
Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.