COURT FILE NO.: CV-15-524295 DATE: 20160713

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHAMMED SIDDEEQ ARIF Plaintiff

– and –

XIAONPING LI, THE PING WAY INC. operating as ZEN CLIMB and RATTLESNAKE POINT CONSERVATION AREA c/o HALTON CONSERVATION AUTHORITY Defendants

Rachelle Mitri, for the Plaintiff Stephen Libin, for the Defendant

HEARD: June 13, 2016

M. D. FAIETA j.

Reasons for Decision

INTRODUCTION

[1] The Plaintiff, Mohammed Siddeeq Arif (“Arif”), brings this action for damages arising from an injury suffered while rock climbing in the Rattlesnake Point Conservation Area during an introductory rock climbing and rappelling course offered by the Defendant, The Ping Way Inc., which operates as Zen Climb (“Zen Climb”). The Defendant Xiaoping Li (“Li”) (who is misnamed in the Statement of Claim as Xiaonping Li) is the President of Zen Climb. Rattlesnake Point is owned by the Defendant Halton Region Conservation Authority (“HRCA”), which is misnamed in the Statement of Claim as “Rattlesnake Point Conservation Area c/o Halton Conservation Authority.”

[2] The Defendants, Zen Climb and HRCA, bring this motion for summary judgment to dismiss this action on the grounds that Arif released the Defendants from liability by signing two releases and voluntarily assumed the risks associated with rock climbing by participating in this course. The Plaintiff has provided his consent to a dismissal of the action only against Li.

[3] For the reasons described below, I have granted summary judgment and have dismissed this action.

BACKGROUND

[4] Arif is 62 years old. He is married and has four adult children. In 1975, he obtained a university degree in pharmacy. He worked as a production manager for a multinational pharmaceutical manufacturer for about two decades before he moved to Canada in 1999. While in Pakistan, Arif spoke English exclusively at university and at work. Today, Arif is a supervisor for another pharmaceutical company. About 25 employees report to him.

Website Booking

[5] During a visit to Canada, Arif’s son-in-law, Nihal Javed, asked Arif to go rock climbing. Arif had never been rock climbing before. Arif thought that rock climbing would be a hiking activity. Arif and Nihal were joined by Arif’s son, Naeem Arif.

[6] On June 29, 2013 Li received a completed registration form through the website www.zenclimb.com from Nihal for Zen Climb’s introductory rock climbing and rappelling course that was offered on July 1, 2013. The following statement appears below the registration form on the website:

By submitting the above information, you agree to our Booking Conditions and Cancellations Policy.

Booking Conditions:

All participants are required to read, understand and sign this waiver of liability. Those under the age of 18 years must have a parent or legal guardian co-sign their waiver, and must be accompanied by an adult. The minimum age to climb is 6. [Hyperlink underline in original.]

[7] Clicking on “this waiver” leads to the Zen Climb Release of Liability, Waiver of Claims and Assumption of Risks and Indemnity Agreement (“Zen Climb Release”) described below.

[8] Naeem and Nihal used Arif’s credit card to pay for the rock climbing course registration on Zen Climb’s website.

Receipt

[9] There is only one public entrance to Rattlesnake Point. All visitors must pay an entrance fee prior to entering Rattlesnake Point. The receipt for the entrance fee must be displayed on the dash of the visitor’s automobile.

[10] The reverse side of the receipt states in black font:

LEGAL NOTICE TO ALL USERS PLEASE ENSURE ALL MEMBERS OF YOUR GROUP ARE AWARE OF THIS NOTICE EXCLUSION OF LIABILITY – ASSUMPTION OF RISK - JURISDICTION AND CHOICE OF LAW

[11] The reverse side of the receipt continues in red font:

THE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM FOR COMPENSATION FOLLOWING AN ACCIDENT

[12] Under the heading “ PLEASE READ CAREFULLY ” the reverse side of the receipt continues with the following statement in a bright yellow box surrounded by a red frame:

As a condition of your use of the facilities, properties or bodies of water, you assume all risk of personal injury, death or property loss resulting from any cause whatsoever including, but not limited to off road cycling, rock climbing, swimming, all other permitted activities, travel within or beyond the Park boundaries, or negligence, breach of contract or breach of statutory duty of care or breach of the Occupiers Liability Act on the part of The Halton Region Conservation Authority, its employees, agents, ….(collectively referred to as The Halton Region Conservation Authority). You agree that the Halton Region Conservation Authority shall not be liable for any such personal injury, or death or property loss and you release The Halton Region Conservation Authority and waive all claims with respect thereto. You agree that any litigation involving The Halton Region Conservation Authority shall be brought solely within the province of Ontario and shall be within the exclusive jurisdiction of the Court of the Province of Ontario. You further agree that these conditions and any rights, duties and obligations or litigation as between The Halton Region Conservation Authority and you shall be governed by and interpreted solely in accordance with the laws of the Province of Ontario and no other jurisdiction.

[13] Beneath the bright yellow box on the receipt is the following statement:

THE HALTON REGION CONSERVATION AUTHORITY LIABILITY IS EXCLUDED BY THE TERMS OF THESE CONDITIONS. PLEASE BE RESPONSIBLE FOR YOUR OWN SAFETY IN ALL ACTIVITIES. PLEASE USE FACILITIES CAREFULLY.

[14] Arif acknowledges that he received the above receipt. However, he states that he did not see the reverse side of the receipt.

Posted Notice

[15] The following notice is posted on a sign, measuring 18 inches by 24 inches, that is affixed to the entrance to the trailhead. The word NOTICE appears in large white font against a red background. Immediately below, the following statement appears in black font against a white background:

Conservation Halton (The Halton Region Conservation Authority) Legal Notice to All Users Exclusion of Liability / Assumption of Risk PLEASE READ CAREFULLY

[16] Immediately beneath the above statement appears a yellow box with the same statement shown on the reverse side of the receipt described above. Beneath the yellow box is the following statement in white font against a black background:

The Halton Region Conservation Authority’s Liability is excluded by the terms of these conditions.

[17] Arif does not recall seeing the Posted Notice.

Meeting in the Parking Lot

[18] Upon Arif’s arrival within Rattlesnake Point, he met other persons who had signed up for the introductory rock climbing course in the parking lot.

[19] Li states:

I provided the plaintiff, his son and his son-in-law with the Zen Climb Release and the Conservation Halton Release while they were standing in the parking lot. I asked them to please read, understand and then sign the two releases.

After approximately three to five minutes, Mr. Arif returned the executed releases to me.

At no point did Mr. Arif, his son or son-in-law ask me any questions about the waivers. If I am not asked questions about the release, then I assume that the people signing understand unless they show signs of bewilderment or reluctance. Mr. Arif, his son and son-in-law did not express any bewilderment or reluctance when they returned the releases. It was my impression that Mr. Arif, his son and son-in-law completely understood the documents that they signed. …

[20] The Plaintiff was wearing a helmet and a harness when he signed the Releases. The Plaintiff admitted that he was given an opportunity to review the Releases and could have asked for more time to review the Releases if he wanted more time. The Plaintiff admitted that he did not ask for more time to review the Releases. Even though on cross-examination the Plaintiff admitted that the titles of the Releases clearly indicated their purpose, and even thought he had admitted that he had not read all the clauses of the Releases, the Plaintiff testified that he thought that he was not releasing the Defendants from liability for matters within their control. He stated:

Q: You understood, though, that a document that was titled Individual Waiver of Public Liability was a waiver of liability, correct?

A: That’s right.

Q: You understood that a document that was called Release of Liability, Waiver of Claims and Assumption of Risks and Indemnity Agreement, the purpose was pretty clear, wasn’t it?

A: Yeah, but I thought it’s the liabilities against for anything happens which is beyond Mr. Xiaonping’s control, right? Anything within his control, obviously, I wasn’t aware that I’m sign --- I’m waiving off my right to release his responsibilities.

[21] On cross-examination Li stated that “we joked about signing away their life” when the Plaintiff, Naeem and Nihal returned the signed Releases to Li.

Conservation Halton – “Individual Waiver of Public Liability”

[22] Once in the conservation area, Arif met other people who were in his group and had also signed up to take this course. At this juncture, Arif learned that the rock climbing activity involved climbing using ropes and harnesses. They were also provided with some directions. They were shown how to put on a harness. They were given a form entitled “Individual Waiver of Public Liability” to sign (“Conservation Halton Release”). Conservation Halton does not permit visitors to Rattlesnake Point to participate in rock climbing or other inherently risky activities unless they sign the form.

[23] The one page Conservation Halton Release signed by Arif states:

Halton Region Conservation Authority INDIVIDUAL WAIVER OF PUBLIC LIABILITY

W A R N I N G!

THE SPORT OF ROCK CLIMBING, MOUNTAINEERING AND CAVING IS RECOGNIZED TO BE AN ACTIVITY IN WHICH A HIGH LEVEL OF RISK IN TERMS OF PERSONAL INJURY AND/OR DEATH IS INVOLVED. THE HALTON REGION CONSERVATION AUTHORITY ACCEPTS NO RESPONSIBILITY FOR ANY ACCIDENT, INJURY, DEATH OR LOSS OR DAMAGE TO PERSONAL PROPERTY RESULTING FROM THE USE OF ITS PROPERTY FOR SUCH ACTIVITIES, AND ANY PERSON OR GROUP OF PERSONS ENGAGING THESE ACTIVITES DO SO AT THEIR OWN RISK . [Underlining in original.]

IN CONSIDERATION OF THE HALTON REGION CONSERVATION AUTHORITY permitting me to utilize its property, THE UNDERSIGNED does, for himself or herself and his or her heirs, executors, administrators and personal representatives, hereby remise, release and forever discharge the HALTON REGION CONSERVATION AUTHORITY and its successors, assigns, staff and employees, from all manner of action, causes of action, suits, claims or demands of whatsoever nature or kind against THE HALTON REGION CONSERVATION AUTHORITY or its successors, assigns, staff or employees, which the undersigned, his or her heirs, executors, administrators and personal representatives had, now have or may hereafter have by reason of personal injury or death or loss or damage to property arising out of the participation of the undersigned in such activities or instructional program at the:

RATTLESNAKE POINT CONSERVATION AREA

on 07/01/2013__________________ Date(s) of Activity

THE UNDERSIGNED, hereby acknowledges that as of the date hereof, he or she is eighteen (18) years of age or over, and has read and understands the above.

IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand.

”signature”________________________________________ Signature of Participant or Parent/Legal Guardian

MOHAMMED ARIF_________________________________________ Participant’s Name – PLEASE PRINT

07/01/13_______________________________________ Date Name of Group

[24] Arif states that he signed this form within an hour of his arrival to the conservation area and before any climbing activities occurred. He understood that it was not possible to participate in the activity without signing the Conservation Halton Release.

[25] Arif states that he read some of the Conservation Halton Release but not every word. He admits that there was nothing unclear in that document and thus he did not ask for clarification. Arif states that he understood the purpose of the Conservation Halton Release in a general way.

Zen Club – “Release of Liability, Waiver of Claims and Assumption of Risks and Indemnity Agreement”

[26] The Zen Climb Release that was signed by Arif is a two page document. The first page of the Zen Climb Release states:

The Ping Way Inc. Operating as Zen Climb

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT

BY SIGNING THIS DOCUMENT YOU WILL WAIVE OR GIVE UP CERTAIN RIGHTS TO SUE OR TO CLAIM COMPENSATION FOLLOWING AN ACCIDENT

PLEASE READ CAREFULLY!

_________________________________ Signature of Participant or Parent or Legal Guardian

To: The Ping Way Inc. operating as ZEN CLIMB and To: HER MAJESTY THE QUEEN IN RIGHT OF Canada and their directors, officers, employees, agents, guides, independent contractors, subcontractors, sponsors, assigns and representatives (all of whom are hereinafter referred to as “the RELEASEES”)

DEFINITION THE RELEASEES' programs include, but are not limited to, rock climbing, hiking, camping including winter camping, mountaineering, cross-country skiing, waterfall ice climbing, glacier travel and high altitude climbing and travel, slacklining, teambuilding initiatives and exercises, canoeing, kayaking and general physical exercise both outdoors and indoors.

In this Agreement, the term “Wilderness Activities” shall include but is not limited to: hiking, orienteering, nature study, snow sports, touring, slacklining, mountaineering, rock or ice climbing, expeditions, trekking, glacier travel, mountain biking, horseback riding, swimming, boating, fishing, water sports, and all activities, services and use of facilities either provided by or arranged by the Releasees including orientation and instructional sessions or classes, transportation, accommodation, food and beverage, water supply, rescue and first aid services, and all travel by or movement around vehicles, helicopters, other aircraft, horses and pack animals, all terrain vehicles, watercraft or other vehicles.

ASSUMPTION OF RISKS

I understand that the Releasees’ programs involve intrinsic, unknown or unanticipated hazards and risks, not all of which can be listed here. Among the more obvious and frequent are:

1. Steep terrain where a fall, whether roped or unroped, may cause injury or death.
2. Falling rock, ice or other objects, which may cause injury or death.
3. Violent and unpredictable weather, which may cause injury due to extremes of heat or cold, and which may prevent travel to, from or within an area.
4. Unfamiliar country, where the program participants may get lost, off route or be separated from the rest of the party.
5. Wild animals, which have been known to maul, sometimes fatally, mountain travelers.
6. Avalanches, which are highly dangerous and may be triggered by the activities of skiers or climbers or by natural forces.
7. Remoteness of location with poor communications and inability to get rescue or medical assistance quickly or easily.
8. Medical problems arising from climbing at high altitudes or in areas where adequate supplies of clean food or water may be unavailable.
9. Transport by public or private motor vehicle, helicopter and light fixed wing aircraft or through the use of animals.
10. Hazards involved in canoeing, kayaking and other water activities such as capsize, striking rocks in rivers, and drowning.
11. Scrapes, bruises, fractures and other injuries sustained in physical activity indoors and outdoors.
12. NEGLIGENCE ON THE PART OF THE RELEASEES, INCLUDING THE FAILURE BY THE RELEASEES TO TAKE REASONABLE STEPS TO SAFE GUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF WILDERNESS ACTIVITIES.

I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH WILDERNESS ACTIVITIES AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.

NON-SCHEDULED OR EMERGENCY EVACUATION, RESCUE OR FIRST AID

I acknowledge and agree that all expenses associated with non-scheduled or emergency evacuation, rescue or first aid will be my responsibility and will not be covered by the Releasees.

___________ Initials

[27] The second page of the Zen Climb Release states:

THE PING WAY INC. Operating as Zen Climb RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT

In consideration of the Releasees accepting my application for any of the Releasees’ programs or activities, I agree to this release of claims and waiver of liability as follows:

1. TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE RELEASEES from any and all liability to the fullest extent permitted by law for any loss, damage, expense or injury including death that I (or my child) may suffer, or that my next of kin may suffer, as a result of my or child’s participation in wilderness activities DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER ANY APPLICABLE OCCUPIERS’ LIABILITY LEGISLATION IN THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE;

2. I am not relying on any oral or written statements made by the Releasees or their agents, whether in brochures, advertisements or in individual conversations to lead me (or my child) to become involved in this program on any basis other than my assumption of the risks involved.

3. I accept all of the risks and the possibility of death, personal injury, property damage and loss resulting from my or my child’s involvement with the program I am taking with the Releasees.

4. I certify that I am (or my child is) physically capable and fit to participate in this activity.

5. I confirm that I am eighteen years of age or older.

6. I confirm that I assign my child’s teacher or climbing instructor as my child’s guardian during my child’s participation in Wilderness Activities in the absence of my presence.

7. I confirm that I have read over this agreement before signing, that I understand it, and that it will be binding not only on me but also on my heirs, my next of kin, my executors, administrators and assigns. [1]

8. I hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario and I agree that no other courts can exercise jurisdiction over the agreements and claims referred to herein. Any litigation to enforce this agreement shall be instituted in Ontario and nowhere else.

9. I HEREBY AGREE TO HOLD HARMLESS AND INDEMNIFY THE RELEASEES from any and all liability to the fullest extent permitted by law for any property damage or personal injury to any third party resulting from my (or my child’s) participation in wilderness activities.

I HAVE READ AND UNDERSTOOD THIS AGREEMENT PRIOR TO SIGNING IT AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I OR MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST THE RELEASEES.

”signature” _______ ”signature”____________________________ Witness Signature of Participant or Parent or Legal Guardian

Xiaoping Li____ MOHAMMED ARIF_____________________ Witness’s Printed Name Printed Name of Participant or Parent or Legal Guardian

July 1, 2013_____ ___________________________________________ Date Printed Name of Participant under the age of 18

PARTICIPANT’S EMERGENCY CONTACT:

Name: Lubna Arif____________ Phone: [omitted]___________

The “Safety Talk”

[28] Li provided a “safety talk” in the parking lot after the Releases were signed. He stated:

I provided a safety talk in the parking lot. It is my standard procedure during a safety talk to explain the inherent dangers of rock climbing, including the risk of personal injury. I also typically remind all the participants that it is important for everyone to keep an eye on their own safety and that all participants have a right to refuse to participate in any activity that they feel is unsafe.

The First Climb and Fall

[29] After the safety talk and checking that all of the participants had executed waivers and were equipped with harnesses and helmets, Li led the participants to the rock face. Li performed a demonstration for the participants. Arif volunteered to be the ‘climber’ for the purposes of the demonstration. Li acted as the belayer. [2] During this demonstration, Arif fell off the wall. Arif states that he fell because he lost his grip on the rope. Arif was approximately 3-4 meters up the face of the wall when he fell. However, Arif did not fall to the ground as the rope and harness supported him while he dangled in the air before being lowered to the ground by Li.

[30] Arif admitted that after his first fall, he knew that he could possibly fall from the rock, hit the rock face and injure himself while rock climbing. Li states that at no point did Arif show any reluctance or hesitancy. Arif did not ask to remove himself from the program; he independently decided to participate. Arif agreed that he could have withdrawn from participating in further rock climbing but stated “… since I thought I was there and have paid for it so I’m – I just wanted to try it.” [3]

The Second Climb, Fall and Injury

[31] Approximately 30-60 minutes after the First Climb, it was Arif’s turn to climb again. Li suggested that Arif climb an easier route a few minutes away from the demonstration site. During this second rock climb, Naeem acted as the belayer. Once again, Arif lost his grip. Arif fell to the ground from a height of about two metres. His fall resulted in an injury to his right leg.

ISSUES

[32] This motion for summary judgment raises the following issues:

1. Should leave be granted to produce further affidavit evidence pursuant to Rule 39.02(2)?
2. Should this motion for summary judgment be adjourned to permit the Plaintiff to provide this court with additional evidence regarding the circumstances in which the Releases were signed?
3. Are the Releases a Full Defence to the Plaintiff’s Claim?
4. Is the defence of Volenti Non Fit Injuria a complete answer to the Plaintiff's Claim?

ANALYSIS

[33] A motion for summary judgment is governed by Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[34] On a motion for summary judgment a court must consider the evidence submitted by the parties and it may, unless the interests of justice dictate otherwise, weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence.

[35] In Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49 the Supreme Court of Canada stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[36] The onus is on the moving party to show that there is no genuine issue requiring a trial. Each side must put its “best foot forward” with respect to the existence or non-existence of material issues. [4] A motions judge is entitled to assume that the record contains all the evidence that the parties would present if there were a trial. [5]

Issue #1: Should Leave Be Granted To Allow Arif To Deliver A Further Affidavit And To Adjourn This Motion For Summary Judgment To Allow For Cross-Examination?

[37] At the outset of this motion, I denied Arif’s motion for leave to deliver the affidavit of Derek Wilding, sworn June 6, 2016, pursuant to Rule 39.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and for an adjournment of this motion for summary judgment in order to permit the Defendants to cross-examine Wilding. Rule 39.02(2) states:

A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. [Emphasis added.]

[38] I make two self-evident observations regarding the language used in Rule 39.02(2): (1) the moving party bears the onus of establishing that leave should be granted; and (2) the granting of leave is the exception, not the rule. I agree with the following observations made by Morawetz, R.S.J. in Redstone Investment Corp (Re), 2016 ONSC 513, 263 A.C.W.S. (3d) 590, at paras. 9-10:

There is a high threshold for admissibility under Rule 39.02(2) .

In Shah v. LG Chem, Ltd., 2015 ONSC 776 at para. 23, Perell J. summarized the principles that have emerged in Rule 39.02(2) jurisprudence:

1. Leave under Rule 39.02(2) should be granted sparingly.
2. The moving party has a very high threshold to meet.
3. The rule about the delivery of subsequent affidavits should not be used as a "mechanism for correcting deficiencies in the motion materials."
4. The rule is designed to fairly regulate and provide closure to the evidence gathering process for motions and applications.

[39] In Lockridge v. Ontario (Ministry of the Environment, Director), 2013 ONSC 6935, 234 A.C.W.S. (3d) 34, at para. 24, the Ontario Divisional Court stated that the following test should be applied in deciding whether to grant leave under Rule 39.02(2):

1. Is the evidence relevant?
2. Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?
3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[40] The affidavit of Govind Upadyayula, sworn June 2, 2016, was delivered by Arif in support of this motion.

Is the Evidence Relevant?

[41] Wilding is a purported expert in rock climbing. His affidavit appends his seven page letter dated April 21, 2016 that concludes that Li’s actions were “markedly below industry best practices.” This same letter was appended to the affidavit of Zeitoon Vaezzadeh, another lawyer representing Arif, sworn April 22, 2016, who opined that “… the evidence suggests that the Defendant(s) was/were negligent and likely grossly negligent, so even if the Waiver Documents are held up by the Court, these documents would not protect the Defendant(s) against gross negligence.” In my view, evidence regarding whether Li and Zen Climb were negligent or grossly negligent is not relevant on this motion for summary judgment. As I note below, there is no differentiation in the law between gross negligence and negligence as it pertains to the operation of the Releases and the defence of volenti.

Does the Affidavit Respond to a Matter Raised on Cross-Examination?

[42] Upadyayula’s affidavit states that counsel for Arif had planned to obtain a report from an expert in rock climbing long before the cross-examinations were held. Paragraphs 4 and 5 of his affidavit state:

I am advised by Ms. Mitri and verily believe that prior to the within motion, the Plaintiff had not contemplated retaining an expert. The Plaintiff had to put his best foot forward in defending this motion, so Ms. Mitri took steps to identify potential experts whom could opine on rock climbing industry standards.

I am advised by Ms. Mitri and verily believe that Mr. Libin knew of Ms. Mitri’s intentions to retain an expert to render an opinion with respect to the Incident and whether or not the Defendants met industry practice standards with respect to providing rock climbing instruction courses. I am advised by Ms. Mitri that this factor was raised by her at the February 19th court appearance when determining dates for the timetable attached as Exhibit “A”.

Would Leave Result in Non-Compensable Prejudice?

[43] The Defendants did not take the position that leave would result in non-compensable prejudice.

Is there a Reasonable Explanation for the Failure to include the Evidence from the Outset?

[44] A date for the hearing of this motion for summary judgment, including a timetable for the exchange of evidence, was set by Justice Firestone in CPC Court on February 19, 2016. The timetable provided that Arif’s Responding Record was to be delivered by March 31, 2016 and that cross-examinations were to be completed by April 27, 2016. Arif, Li and a representative of Conservation Halton were cross-examined on their affidavits on April 27, 2016.

[45] Paragraphs 4, 6, 7, 8, 9, 10, 11, 17 and 19 of Upadyayula’s affidavit provide the following explanation for the failure to include the expert rock climbing evidence prior to the delivery of the responding motion record:

I am advised by Ms. Mitri and verily believe that prior to the within motion, the Plaintiff had not contemplated retaining an expert. The Plaintiff had to put his best foot forward in defending this motion, so Ms. Mitri took steps to identify potential experts whom could opine on rock climbing industry standards. …

I am advised by Ms. Mitri and verily believe that finding an expert that could comment on the issues at hand was not an easy task, as there were some new factors that a couple of the experts she conversed with inquired about, such as very particular questions surrounding the type of bolts and ropes used, that a non-expert in the industry may not have turned their minds to. Ms. Mitri further advised that there was quite a delay in obtaining many of the responses the rock climbing experts she had been talking to had to figure out before they could comment on whether they could assist with a report that could opine on such a matter.

I am advised by Ms. Mitri and verily believe that she spoke with Mr. Libin on a number of occasions to obtain further information from his insured that she now understood to be relevant and to produce certain relevant documents as part of his ongoing duty to provide relevant documentary disclosure that was in his client’s possession or control. Mr. Libin hesitantly provided a response to one inquiry and not to others, but instead invited the Plaintiff to take steps to figure it out on his own, since examinations for discovery had already taken place and it was the Plaintiff’s case to prove. Mr. Libin further took the position that the issue of negligent is not relevant to this motion, but Ms. Mitri disagreed due to the distinction between negligence and gross negligence. …

I am advised by Ms. Mitri and verily believe that she hired private investigator, Harold Schlesinger, to attend Zen Climb with the Plaintiff and his son. This visit was facilitated by opposing counsel and the Defendant Li, and took place on or around March 26, 2016. …

I am advised by Ms. Mitri and verily believe that she found an expert that was able to opine on the aforementioned matters and provide a report with respect to same on or around April 7th, 2016.

I am advised by file review and verily believe that on or around April 22, 2016, our office sent Mr. Libin correspondence including the expert report of Mr. Derek Wilding, the day it was received. …

Mr. Libin confirmed that Ms. Vaezzadeh would not be examined and at no point raised any concerns with regards her affidavit evidence introducing Mr. Wilding’s report as exhibit or his intentions to exclude same unless he was afforded the opportunity to cross-examine him on the 27th or on a date thereafter. …

I am advised by Ms. Mitri and verily believe that upon a review of the Defendant’s factum, this was the first time that she became aware of the Defendant’s position with respect to the admissibility of Mr. Wilding’s Report itself. …

I am advised by Ms. Mitri and verily believe that the Report was originally not served by way of obtaining an affidavit of Mr. Wilding primarily due to impractical circumstances. Notably, said circumstances included the fact that Mr. Wilding lives and works in Alberta, delay in receiving particulars in order for the expert report to be prepared, and thereafter the fast-approaching deadline to file the Responding materials prior to the scheduled Cross-Examinations. Finally, due to prior commitments, Mr. Wilding was not available for cross-examinations at any point in April or May.

Conclusion

[46] In my view, leave should not be granted for the following reasons. First, I am not satisfied that the Wilding affidavit provides relevant evidence. In my view, the Releases respond to any liability of the Defendants which includes negligence (which in turn includes gross negligence). Second, the Wilding affidavit does not respond to a matter raised on the cross-examination of the Defendants. Third, Arif has failed to provide a reasonable explanation for the very late delivery of the Wilding affidavit: counsel did not retain Wilding until a week after the deadline for filing responding material had passed despite having commenced this action in 2013 and having had examinations for discovery completed by November 2015. Arif was well aware of the necessity of a party to put its “best foot forward” on a motion for summary judgment. The late delivery of this affidavit also results, in part, from an attempt to correct the perceived deficiencies of the responding motion materials which arise from Arif’s attempt to tender the Wilding report as admissible evidence on this motion by appending it as an exhibit to a solicitor’s affidavit.

Issue #2: Should This Motion For Summary Judgment Be Dismissed To Permit The Plaintiff To Provide This Court With Additional Evidence Regarding The Circumstances In Which The Releases Were Signed?

[47] The Plaintiff submits that there is evidence not before this Court including: 1) any representations or undertakings made by the Defendants as to the safety and quality of the rock climbing course; 2) the circumstances at the time that the Releases were signed; 3) the timing at which the Releases were presented to the Plaintiff; 4) what explanations and discussions occurred during the signing of the Releases. The Plaintiff submits that this evidence is necessary in determining whether the Releases are binding. I reject this submission. The Plaintiff has had many months to prepare for this motion for summary judgment. The timetable for this motion was established by the Court in February 2016. The Plaintiff has filed affidavits. He has conducted examinations for discovery and cross-examinations. The Plaintiff has not explained why this evidence was not gathered earlier. By his own admission, he has failed to put his “best foot forward” on this motion for summary judgment as required under Rule 20 of the Rules of Civil Procedure. Accordingly, I dismiss the Plaintiff’s request to dismiss this motion for summary judgment in order that he may gather additional evidence.

[48] In any event, much of the evidence that the Plaintiff states is not before this court has, in fact, been addressed by the affidavits and examinations that have been filed.

Issue #3: Are The Releases A Full Defence To The Plaintiff’s Claim?

[49] Arif raises the following issues:

1. Is the Plaintiff bound by the terms of the Releases?
2. Do the Releases cover the Plaintiff’s claim?

Is the Plaintiff Bound by the Terms of the Releases?

[50] A review of the case law shows that a person is bound by a signed release unless one of the following circumstances exist:

• Non Est Factum – The signer, through no carelessness on his or her part, is mistaken as to the document’s nature and character; [6]
• Fraud or Misrepresentation – The signer is induced to sign the contract by fraud or misrepresentation; [7]
• Objective Lack of Consensus Ad Idem - Where it is unreasonable for a person relying on the signed contract to believe that the signer really did assent to its terms; [8]
• Unconscionable – was the contract formed in unconscionable circumstances;
• Public Policy – There is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts.

[51] The Plaintiff did not plead or rely upon non est factum or misrepresentation. There is no dispute that the Plaintiff understood that the two documents that he signed were releases. Similarly, the Plaintiff does not allege that he was induced to sign the Releases by a misrepresentation made by the Defendants.

Lack of Consensus Ad Idem

[52] Professor Stephen M. Waddams in The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010), at para. 318, states:

One who signs a written document cannot complain if the other party reasonably relies on the signature as a manifestation of assent to the contents, or ascribes to words he uses their reasonable meaning. But the other side of the same coin is that only a reasonable expectation will be protected. If the party seeking to enforce the document knew or had reason to know of the other's mistake the document should not be enforced. [Emphasis added.]

[53] The above statement was cited with approval in Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.). Dubin J.A. stated, at para. 33:

In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party , and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum . [Emphasis added.]

[54] Similarly, in Karroll v. Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R. (2d) 160, McLachlin, C.J.S.C., as she then was, adopted the Ontario Court of Appeal’s approach in Tilden and stated, at para. 26:

It follows that Miss Karroll is bound by the release unless she can establish: (1) that in the circumstances a reasonable person would have known that she did not intend to agree to the release she signed; and (2) that in these circumstances the defendants failed to take reasonable steps to bring the content of the release to her attention.

[55] I now turn to apply the above two-part test described above. [9]

(A) In the circumstances, would a reasonable person have known that the Plaintiff did not intend to agree to the Releases that he signed?

[56] The following principles apply in determining whether a reasonable person would have known that the Plaintiff did not intend to agree to a release that he or she signed:

Many factors may be relevant to whether the duty to take reasonable steps to advise of an exclusion clause or waiver arises. The effect of the exclusion clause in relation to the nature of the contract is important because if it runs contrary to the party's normal expectations it is fair to assume that he does not intend to be bound by the term. The length and format of the contract and the time available for reading and understanding it also bear on whether a reasonable person should know that the other party did not in fact intend to sign what he was signing. This list is not exhaustive. Other considerations may be important, depending on the facts of the particular case. [10]

[57] Applying the above principles, I find that it is reasonable for the Defendants to rely on the Plaintiff’s signature of the Releases. I am not satisfied that Li and the Defendants knew or ought to have known that the Plaintiff did not assent to the Releases for the following reasons:

(1) The title of each Release, “Individual Waiver of Public Liability” and “Release of Liability, Waiver of Claims and Assumption of Risk and Indemnity Agreement”, written in capital letters, clearly communicates the purpose of each Release. The balance of the Releases is written in regular size font with many words in capital letters.

For instance, the Zen Climb Release states in bold capital letters that one of the hazards and risks being fully assumed by the Plaintiff is:

NEGLIGENCE ON THE PART OF THE RELEASEES, INCLUDING THE FAILURE BY THE RELEASEES TO TAKE REASONABLE STEPS TO SAFE GUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF WILDERNESS ACTIVITIES.

I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH WILDERNESS ACTIVITIES AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.

The Zen Climb Release goes on to state:

… I agree to this release of claims and waiver of liability as follows:

1. TO WAIVE ANY AND ALL CLAIMS that I have … against THE RELEASEES from any and all liability … for any loss, damage, expense or injury including death that I … may suffer … as a result of my … participation in wilderness activities DUE TO ANY CAUSE WHATSOEVER INCLUDING NEGLIGENCE, … AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE;

Unlike Tilden, this is not a case where an exclusion of liability was buried in small font on the reverse side of a contract and whose purpose was inconsistent with the overall purpose of the contract;

(2) The Plaintiff understood that he would not be permitted to participate in the rock climbing activities unless he signed the Releases. The Plaintiff acknowledged that he was aware of the general nature of the Releases which was to exempt the Defendants from liability. [11]

(3) The Plaintiff returned the signed Releases to Li about 3 to 5 minutes after being provided with a copy of them for his review and signature. The Plaintiff did not suggest that he was rushed to sign the Releases. The Plaintiff agreed that he could have asked for more time to review the Releases had he wished to do so. After the Plaintiff read the Releases, he did not ask Li any questions about them nor did he say anything about them to Li. Unlike Tilden, this is not a case where it was apparent to Li that the Plaintiff had not read the Releases.

(B) Alternatively, did the Defendants take reasonable steps to bring the content of the Releases to the Plaintiff’s attention?

[58] The Plaintiff submits that the Defendants have an obligation to ensure that the Plaintiff understood the legal effect of the Releases prior to signing them. I reject this submission. There is no independent obligation on a person seeking the benefit of a release to explain its legal effect to the signer of the release. No such obligation is contemplated in Tilden or any other decision of the Ontario Court of Appeal or the Supreme Court of Canada that has come to my attention. As McLachlin C.J.S.C, as she then was, stated in Karroll, at para. 24:

It emerges from these authorities that there is no general requirement that a party tendering a document for signature to take reasonable steps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question, that such an obligation arises . For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission.

[59] Even though I have concluded that a reasonable person would not have known that the Plaintiff did not intend to agree to the Releases that he had signed, I will nevertheless consider whether the Defendants took reasonable steps to bring the contents of the Releases to his attention.

[60] As noted, the heading of the Releases loudly announced their purpose and call for the reader’s attention. The heading of Zen Climb Release states “ PLEASE READ CAREFULLY! ” in bold, capital letters. The heading of the Conservation Halton Release states “ W A R N I N G ! ” in bold, capital and underlined letters. The Plaintiff admits that he took a few minutes to read the Releases and could have asked for additional time to read them but did not do so.

[61] Further, during registration for this program, Zen Climb’s website provided the Plaintiff, if not his son and son-in-law, with a copy of the Zen Climb Release and notified them that all participants would be required to sign the Zen Climb Release. Finally, the receipt provided by Conservation Halton to the Plaintiff and the Posted Notice also served to notify the Plaintiff that Conservation Halton’s liability was excluded.

[62] In my view, the Defendants clearly satisfied the requirement to take reasonable steps to bring the content of the Releases to the Plaintiff’s attention.

Is the Release Unconscionable?

[63] A person seeking to set aside a contract on the ground that it is unconscionable must show that: 1) the person who claims the benefit of the contract abused its bargaining power and preyed upon the person who signed the contract; and 2) the bargain was improvident. [12] While the Supreme Court of Canada’s decision in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494 recognizes a duty of honest performance, it does not extend the common law test for unconscionability. [13]

[64] In Dyck v. Manitoba Snowmobile Assn. Inc., [1985] 1 S.C.R. 589 the Supreme Court of Canada dismissed the plaintiff’s submission that the release was unconscionable, at 593:

Nor does the relationship of Dyck and the association fall within the class of cases, notable among which are contracts made on dissolution of marriage, where the differences between the bargaining strength of the parties is such that the courts will hold a transaction unconscionable and so unenforceable where the stronger party has taken unfair advantage of the other. The appellant freely joined and participated in activities organized by an association. The association neither exercised pressure on the appellant nor unfairly took advantage of social or economic pressures on him to get him to participate in its activities. As already mentioned, the races carried with them inherent dangers of which the appellant should have been aware and it was in no way unreasonable for an organization like the association to seek to protect itself against liability from suit for damages arising out of such dangers. It follows from this that there are no grounds of public policy on which the waiver clause should be struck down, an issue also raised on behalf of the appellant.

[65] The above reasoning is equally applicable in this case. The Plaintiff is a well-educated man who is fluent in English and has held a management position for many years. There is no inequality of bargaining power, nor was he preyed upon by the Defendants. Further, as noted in Dyck, it was entirely reasonable for the Defendants to seek to limit their liability in circumstances where the Plaintiff voluntarily participates in a dangerous activity.

Is the Release Contrary to Public Policy?

[66] The Plaintiff submits that the Releases should not be enforced on the grounds that they are contrary to public safety in these circumstances. The Plaintiff states:

While contractual freedom is an admirable public policy objective, upheld to ensure business are able to operate with the assurance their private agreements will be given deference, it should not be overweighed when contracts seek to undercut the intended safety standards. By allowing businesses to seek waiver for actions beyond just negligence, and in turn gross negligence, public policy is jeopardized.

[67] The Plaintiff did not provide a precedent for his submission that the exclusion of liability for gross negligence, by contract, should not be given effect for public policy reasons.

[68] In Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, the Supreme Court of Canada stated that a court may refuse to give effect to an exclusion clause where there is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts. Binnie J. outlined, albeit in dissent, the applicable principles:

117 As Duff C.J. recognized, freedom of contract will often, but not always, trump other societal values. The residual power of a court to decline enforcement exists but, in the interest of certainty and stability of contractual relations, it will rarely be exercised. Duff C.J. adopted the view that public policy "should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds" (p. 7). While he was referring to public policy considerations pertaining to the nature of the entire contract , I accept that there may be well-accepted public policy considerations that relate directly to the nature of the breach , and thus trigger the court's narrow jurisdiction to give relief against an exclusion clause. …

120 Conduct approaching serious criminality or egregious fraud are but examples of well-accepted and "substantially incontestable" considerations of public policy that may override the countervailing public policy that favours freedom of contract. Where this type of misconduct is reflected in the breach of contract, all of the circumstances should be examined very carefully by the court. Such misconduct may disable the defendant from hiding behind the exclusion clause. But a plaintiff who seeks to avoid the effect of an exclusion clause must identify the overriding public policy that it says outweighs the public interest in the enforcement of the contract. In the present case, for the reasons discussed below, I do not believe Tercon has identified a relevant public policy that fulfills this requirement. [page123] [Italics emphasis in original; underlining emphasis added.]

[69] In my view, the Plaintiff has not identified an overriding “well accepted and substantially incontestable” public policy to justify avoiding the effect of the Releases. The conduct identified by the Plaintiff does not approach criminality, egregious fraud or the like. Further, the Supreme Court of Canada’s decision in Dyck v. Man Snowmobile Assn. Inc., rejected the submission that a release that protects a defendant from liability in negligence for damages arising from the dangers of a recreational activity undertaken by the plaintiff should not be enforced on public policy grounds.

[70] Finally, I note that concerns over the fairness of the enforcement of contracts that excludes liability for personal injury arising from negligence has led to legislative reform in England and to recommendations for legislative reform by two Law Reform Commissions in Canada. [14] However, I agree with the view expressed in Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122, [2012] B.C.J. No. 504, at para. 44, that such change in the law is a matter for the legislature and not the judiciary.

Conclusion

[71] For the reasons given above, the Plaintiff is bound by the terms of the Releases.

Do the Releases Cover the Plaintiff’s Claim?

[72] At the outset of this motion, Arif was granted leave on consent of the Defendants to amend his Statement of Claim to plead gross negligence. Arif submits that his damages were a result of the Defendants’ gross negligence. He further submits that the releases do not bar a claim in gross negligence.

Principles of Contractual Interpretation

[73] The goal in interpreting a contract is to discover, objectively, the parties’ intention at the time the contract was made.

[74] The intention of the parties is determined by reading the contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” Accordingly, the interpretation of a contract is a question of mixed fact and law as “… it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.” [15]

[75] “Surrounding circumstances” (also referred to as the “factual matrix”) is limited to any objective evidence of knowledge that was or reasonably ought to have been within the common knowledge of the parties at the time of the execution of the contract. Such knowledge includes “… anything that would have affected the way in which the language of the document would have been understood by a reasonable man.” [16] It includes the purpose of the contract, its background and the relationship between the parties, but it does not include the previous negotiations of the parties or their declarations of subjective intent.

[76] The principle that words should be given their ordinary and grammatical meaning “… reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes particularly in formal documents.” [17] The interpretation of a contract “… must always be grounded in the text and read in light of the entire contract.” The surrounding circumstances cannot be used “…to deviate from the text such that the court effectively creates a new agreement.” [18] Evidence of the surrounding circumstances of a contract is only “… an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words”. However, such evidence may enable the court to choose between the possible meanings of a contract by avoiding an interpretation that leads to an “unrealistic result” in favour of a “commercially sensible result.”

[77] If there is an ambiguity in the meaning of a contract despite the application of the above principles, then the ambiguous words used will be construed against the author of the contract if the other contracting party did not have an opportunity to modify its wording.

Conservation Halton Release

[78] The Conservation Halton Release is quite broad. It is entitled “Individual Waiver of Public Liability.” It states that any person engaging in the sport of rock climbing is doing so “at their own risk.” It also provides that the undersigned “releases and forever discharges [Conservation Halton] “…from all manner of action, causes of action, suits, claims, or demands of whatsoever nature or kind against [Conservation Halton] … by reason of personal injury … arising out of the participation of the undersigned in such activities or instructional program at the Rattlesnake Point Conservation Area.” [Emphasis added.]

[79] In my view, the Release is unambiguous. The words used in the Release convey to a reasonable person that Arif had agreed to release Conservation Halton from all claims for personal injury arising from his rock climbing activities at Rattlesnake Point. The language of the Release covers all causes of action, which include negligence and statutory liability. I am not persuaded that “gross negligence” is a separate cause of action from negligence. Regardless, gross negligence is covered given that it comes within the scope of the phrase “all manner of action, causes of action, suits, claims or demands of whatsoever nature or kind.”

Zen Club Release

[80] The Zen Club Release is quite broad as well. It is entitled “Release of Liability, Waiver of Claims and Assumption of Risks and Indemnity Agreement.” It defines “wilderness activities” to include hiking and rock climbing. It states that “… I agree to … WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE RELEASEES from any and all liability to the fullest extent permitted by law for any loss, damage, expense or injury including death that I … may suffer … as a result of my … participation in wilderness activities DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, OWED UNDER ANY APPLICABLE OCCUPIERS’ LIABILITY LEGISLATION IN THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE.”

[81] In my view, the Zen Climb Release is also unambiguous. Once again, the ordinary meaning of the words used in the Release would convey to a reasonable person that Arif had agreed to release Zen Climb from all claims for personal injury arising from his rock climbing activities at Rattlesnake Point, from any and all liability for any injury that he may suffer as a result of his participation in rock climbing activities due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care. In my view, a claim of gross negligence would come within the scope of the above Release.

Conclusions

[82] For the above reasons I find that the Plaintiff raises no genuine issue requiring a trial regarding whether the Releases are a complete defence to the Plaintiff’s claim in that there is no genuine issue that the Plaintiff is bound by the Releases and that the scope of the Releases covers the alleged wrongful conduct of the Defendants. In reaching this conclusion I place no weight on the website registration notice, the notice on the reverse side of the parking receipt notice or the Posted Notice as the evidence is that none of these notices came to the Plaintiff’s attention.

Issue #4: Is The Defence Of Volenti Non Fit Injuria A Complete Answer To The Plaintiff’s Claim ?

[83] The Defendants submit that the defence of volenti non fit injuria bars the Plaintiff’s claim. To succeed, the Defendants must show that the Plaintiff consented to, or assumed, the physical and legal risk involved in the activity. [19] In other words, the Defendants must show that there was “… an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and the plaintiff did not expect him to.” [20]

[84] Rock climbing is a dangerous activity. Although the Plaintiff thought he would be going hiking, I find that he was well aware that he would be rock climbing, rather than hiking, by the time that he had placed his helmet and climbing harness on in the parking lot and had read the Releases. The Plaintiff did not show any hesitation in participating nor did he indicate that he no longer wished to participate. Instead, the Plaintiff explained that he decided to carry on with the rock climbing course since he was there and had paid for the course.

[85] Further, I have no doubt that the Plaintiff was acutely aware of the risks of rock climbing before he decided to embark on the Second Climb given that he had fallen on the First Climb.

[86] Finally, there is no suggestion that the Plaintiff’s mind was clouded by alcohol or anything else when he participated in this activity or when he reviewed and knowingly signed the two Releases.

[87] I find that the defence of volenti applies as the Plaintiff, by his own actions, voluntarily assumed the risks of rock climbing.

CONCLUSIONS

[88] This action raises no genuine issue requiring a trial. This motion for summary judgment is granted. This action is dismissed. The parties have settled the question of costs of this action. The Plaintiff shall pay costs in the amount of $15,000.00 to the Defendants.

Mr. Justice M. D. Faieta

Released: July 13, 2016

Footnotes

[1] This paragraph is also numbered as paragraph 6 in the original document. [2] Belay means “to control a rope that a climber is attached to and keep it tight, so that if the climber falls, they do not fall very far”. See dictionary.cambridge.org. [3] Examination for Discovery, November 30, 2015, Question 447. [4] Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11. [5] Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96, 98 O.R. (3d) 641, at paras. 17-19. [6] Gold Leaf Products Ltd. v. Pioneer Flower Farms Ltd., 2015 ONCA 365, 255 A.C.W.S. (3d) 83, at para. 8; Marvco Color Research Ltd. v. Harris, [1982] 2 S.C.R. 774, at p. 785-786. [7] Curtis v. Chemical Cleaning and Dyeing co. [1951] 1 K.B. 805, [1951] 1 All E.R.631. [8] Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.). [9] These principles were applied in Isildar v. Rideau Diving Supply Ltd. and Trimmeliti v. Blue Mountain Resorts Ltd., 2015 ONSC 2301, 254 A.C.W.S. (3d) 243 at paras. 81-3. [10] Karroll v. Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R. (2d) 160, at para. 25. [11] In Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, the Supreme Court of Canada did not give effect to an exclusion clause found in an “Official Entry Form and Waiver” for a tube race on a ski hill as the Plaintiff thought he was simply signing an entry form and was not aware of the Defendant’s intention that the form would exempt it from liability. On the other hand, in Dyck v. Manitoba Snowmobile Assn. Inc., [1985] 1 S.C.R. 589 a waiver clause on the reverse side of the entry form for a snowmobile race barred the Plaintiff’s action against the Defendant as he had signed the entry form in full knowledge of the Defendant’s intention to exempt itself from liability. [12] Bank of Montreal v. Javed, 2016 ONCA 49, 344 O.A.C. 237, at para. 7; Rosen v. Rosen (1994), 18 O.R. (3d) 641, at paras. 11-13. [13] Bank of Montreal v. Javed, 2016 ONCA 49, at para. 12. [14] See Philip H. Osborne, The Battle of Contractual Waivers of Liability for Personal Injury in Sporting and Recreational Activities: An Annotation to Loychuk v. Cougar Mountain Adventures Ltd. (2011), 81 C.C.L.T. 100. [15] Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47, 50. [16] Investors Compensation Scheme v. West Bromwich Building Society, [1998] 1 W.L.R. 896 (H.L.). [17] Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 W.L.R. 896 at 913. [18] Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 57. [19] Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, at para. 32. [20] Levita v. Crew, 2015 ONSC 5316, 257 A.C.W.S. (3d) 747, at paras. 110-112.