Nova Scotia

St. Francis Xavier University wants students to sign COVID-19 liability waiver

St. Francis Xavier University students must sign a COVID-19 liability waiver in order to attend classes in the fall. A Halifax law expert has observed that similar waivers are becoming more common.

'It seems that's now becoming a more common thing,' says legal expert

The board of governors at St. FX University has issued a COVID-19 release of liability for all students to sign before attending campus in the fall. (Elizabeth McMillan/CBC)

Students at a Nova Scotia university must sign a COVID-19 liability waiver in order to attend classes in the fall.

St. Francis Xavier University in Antigonish is offering a mixture of online and in-person classes in the fall semester.

The university's board of governors sent the waiver to students. By signing, students give up the right to sue the university for any "loss, damage, illness, sickness, expense or injury including death … as a result of COVID-19 risks."

It applies to all activities and locations at the campus, as well as any off-campus locations where St. FX activities — like research, recreational activities or sporting events — take place.

But fourth-year psychology student Juliana Khoury said many students are feeling pressured since they must sign the waiver by Aug. 1 or have their student account suspended, and class registration also just began.

She said St. FX isn't offering enough classes online for those who are not comfortable going back to campus, so the waiver is essentially forcing all students to sign it or take a gap year.

Khoury said she's heard from many students who are immunocompromised or have loved ones who are, and they would prefer to learn from a distance.

"I would really like to see more online options so that students can make a real choice. And then the waiver wouldn't be a problem, because it would be a true choice made by the students," she said.

"And so then, like any other waiver, the students would be signing it acknowledging that the choice they have made comes with elevated risk."

To graduate, Khoury herself needs 10 courses next year and only one is being offered online.

Waivers not always 'airtight'

Halifax law expert Wayne MacKay has observed that such waivers seem to be popping up more and more.

"It seems that's now becoming a more common thing," said MacKay, professor emeritus at Dalhousie University's Schulich School of Law. 

"And, obviously, the risks are particularly difficult to deal with because there's still so many things we don't know about COVID-19."

MacKay said it's a way for the university to get some legal protection, but he said the document is not necessarily "airtight" if someone tries to take the university to court.

"The starting assumption is that you're bound by the contract," he said. "But in most waivers of liability, the courts would be very reluctant to interpret that to include a situation where there was negligence or bad conduct on the part of, in this case, the university."

Wayne MacKay is professor emeritus at Dalhousie University's Schulich School of Law. (Nick Pearce)

The waiver has a clause specifically referring to negligence. MacKay said broader language means better protection for the university, but that doesn't make it unlimited.

"But in spite of that fairly clear language, I think a court could still, in an extreme case, say that the waiver doesn't cover it," MacKay said.

The Halifax Regional Municipality has also included a liability waiver for summer camps, but MacKay said there's a "big difference" when adults sign waivers for themselves.

"The courts have been much more willing to go beyond the waiver partly because it's parents acting on behalf of their children, not the children themselves making the choice," he said.

MacKay said it's crucial for the person signing the contract to read it in full to understand what they're giving up.

'A choice for students'

Andy Hakin, St. FX's president, sent an email to the school community Sunday. It addressed concerns about the waiver and provided more context.

The waiver, he said, is just one piece of the university's overall risk-management approach during the pandemic.

The university was told by its insurers that insurance companies will not provide pandemic-related coverage by the end of the year.

Hakin said reopening campus would never be a "zero-risk scenario" when it comes to COVID-19, and the university is working hard to prepare for the fall semester with new protocols in place.

"The waiver, by no means, absolves the university of doing everything it can to meet the standards expected by public health.… If, at any time, we believe we cannot maintain the health and safety standards prescribed by our public health experts, we will not proceed," he said.

These types of waivers are not unusual at the university, Hakin said. They do not impact any student's existing health coverage.

Students must sign the waiver in order to return to campus, but Hakin said there are other "mandatory behavioural expectations" for students related to COVID-19.

"Ultimately, this is a choice for students.… These documents are extraordinary measures implemented due to the extraordinary times we are navigating," he said.

Student union proposes two-way agreement

Sarah Elliott, president of the StFX Students' Union, said she's heard from many students frustrated about the waiver and few number of online classes.

She said their union is meeting with the school's vice-president academic to make sure online or different styles of learning can be accessible for students.

Elliott also said the union has begun the process to draft a memorandum of understanding involving expectations for both students and the St. FX administration.

It would not be a legal document like the waiver, but would hold the school accountable as they ask students to do the same, Elliott said.

"So instead of being kind of a one-sided thing, it will be both of us working together to make sure that we'll be upholding the safety measures," she said.

After the memorandum is signed, Elliott said their next step is making sure there's more consultation of all students across campus so "no student feels like their voice isn't being listened to."

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