Kempf et al. v. Nguyen

[Indexed as: Kempf v. Nguyen]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Rouleau and Epstein JJ.A.

February 18, 2015

124 O.R. (3d) 241 | 2015 ONCA 114

Case Summary

Civil procedure — Jury notice — Striking — Plaintiff bringing action for damages for personal injuries suffered when defendant's back wheel clipped his front wheel during charity bike ride — Defendant pleading that plaintiff had voluntarily assumed risk of ride — Trial judge erring in striking jury notice on grounds that defendant had pleaded volenti defence and that jury would be confused by waiver signed by plaintiff before ride — Plea of volenti not constituting claim for declaratory relief — Properly instructed jury having no difficulty understanding that waiver which released ride organizers from liability did not bar action against defendant.

The plaintiff fell and suffered serious injuries when the defendant's back wheel clipped his front wheel during a charity bike ride. The plaintiff sued the defendant in negligence for damages arising from the accident. The defendant pled, among other things, that the plaintiff had voluntarily assumed the risk of the ride ("volenti") and that the plaintiff was contributorily negligent. The trial judge granted the plaintiff's motion to strike the jury notice and discharge the jury. She found that the jury would be confused by the implications of a waiver signed by the plaintiff before the ride which released ride organizers from liability, particularly in light of the defendant's plea of volenti. The trial judge found the defendant responsible for the plaintiff's injuries. In her reasons, she did not address the defendant's plea of contributory negligence. The defendant appealed.

Held, the appeal should be allowed.

Per Epstein J.A. (Rouleau J.A. concurring): The trial judge erred in striking the jury notice. Volenti is not a claim for declaratory relief which disqualified the action from being tried by a jury; rather, it is a full defence to a finding of negligence. Moreover, discharging a jury on the basis that it would be too difficult to explain the law is reversible error. A properly instructed jury would not have had difficulty understanding that the waiver, which was a contract between the participants and the ride organizers, was not a bar to the plaintiff's action. There was evidence upon which a jury, properly instructed and acting reasonably, could have come to a different conclusion than that reached by the trial judge. A new trial was necessary.

Per Laskin J.A. (dissenting): An appeal court's right to interfere with a trial judge's discretionary decision to discharge a jury is very limited. An appellant must show that the trial judge exercised that discretion arbitrarily or capriciously, or based on a wrong principle of law. The trial judge exercised her discretion reasonably in finding that the waiver agreement, in combination with the volenti defence, would confuse the jury and would be used by them improperly despite a strong charge. Even if she should have retained the jury, a new trial was not called for because any jury acting reasonably would have reached the same result.

The trial judge was correct in holding that the appropriate standard of care was ordinary negligence, rather than intentional or reckless conduct. [page242]

The defendant did not press the issue of contributory negligence strongly at trial. The trial judge considered the reasonableness of the plaintiff's conduct. If she erred in failing to make a specific finding on contributory negligence, her error was harmless. It was evident from her reasons and the record that the plaintiff was not negligent and that the defendant was entirely at fault for the plaintiff's injuries.

Cases referred to

Barlow v. Citadel General Assurance Co. (2009), 94 O.R. (3d) 399, [2009] O.J. No. 435, 2009 ONCA 106, 81 C.C.L.I. (4th) 14; Brady v. Lamb (2005), 2005 CanLII 46734 (ON CA), 78 O.R. (3d) 680, [2005] O.J. No. 5403, 205 O.A.C. 253, 30 C.C.L.I. (4th) 1, 144 A.C.W.S. (3d) 460 (C.A.); Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177, 273 D.L.R. (4th) 596, 216 O.A.C. 268, 41 C.C.L.I. (4th) 227, 42 C.C.L.T. (3d) 161, 151 A.C.W.S. (3d) 1044 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 496]; Dube v. Labar, 1986 CanLII 67 (SCC), [1986] 1 S.C.R. 649, [1986] S.C.J. No. 29, 27 D.L.R. (4th) 653, 68 N.R. 91, [1986] 3 W.W.R. 750, 2 B.C.L.R. (2d) 273, 1 Y.R. 81, 36 C.C.L.T. 105, 42 M.V.R. 1, 37 A.C.W.S. (2d) 152; Fink v. Greeniaus (1973), 1973 CanLII 777 (ON SC), 2 O.R. (2d) 541, [1973] O.J. No. 2283, 43 D.L.R. (3d) 485 (H.C.J.); Gilsenan v. Gunning, 1982 CanLII 3139 (ON SC), [1982] O.J. No. 655, 137 D.L.R. (3d) 252, 22 C.C.L.T. 240, 15 A.C.W.S. (2d) 104 (H.C.J.); Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.); Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, [1997] S.C.J. No. 43, 145 D.L.R. (4th) 193, [1997] 7 W.W.R. 92, J.E. 97-940, 89 B.C.A.C. 161, 34 B.C.L.R. (3d) 10, 35 C.C.L.T. (2d) 1, 211 N.R. 89, 9 C.P.C. (4th) 1, [1997] I.L.R. I-3439, 70 A.C.W.S. (3d) 451; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, 285 D.L.R. (4th) 620, 368 N.R. 1, J.E. 2007-1867, 230 O.A.C. 253, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 50 C.R. (6th) 279, 40 M.P.L.R. (4th) 1, EYB 2007-124525, 160 A.C.W.S. (3d) 573; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109, 215 D.L.R. (4th) 193, 162 O.A.C. 186, [2002] CLLC Â210-031, 32 M.V.R. (4th) 45, 115 A.C.W.S. (3d) 903 (C.A.); King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32, 4 D.L.R. (2d) 561; Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641, [1992] O.J. No. 1725, 94 D.L.R. (4th) 193, 57 O.A.C. 115, 11 Admin. L.R. (2d) 147, 76 C.C.C. (3d) 10, 35 A.C.W.S. (3d) 322 (C.A.); Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295, 6 O.A.C. 326, 48 C.P.C. 209, 30 A.C.W.S. (2d) 48 (C.A.) [Leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 800n, [1985] S.C.C.A. No. 93, 61 N.R. 319n, 1 C.P.C. (2d) xlvii]; Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130, 165 A.C.W.S. (3d) 954; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 85 N.R. 81, [1988] 4 W.W.R. 481, J.E. 88-737, 28 B.C.L.R. (2d) 145, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1, 34 C.R.R. 54, 4 W.C.B. (2d) 148; Stein v. Lehnert, 1962 CanLII 85 (SCC), [1963] S.C.R. 38, [1962] S.C.J. No. 68, 36 D.L.R. (2d) 159, 40 W.W.R. 616; Wadhwani v. State Farm Mutual Automobile Insurance Co., [2013] O.J. No. 4972, 2013 ONCA 662, 52 M.V.R. (6th) 1, 26 C.C.L.I. (5th) 173, 2013 CarswellOnt 15078, 235 A.C.W.S. (3d) 417; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18, 209 D.L.R. (4th) 257, 283 N.R. 1, J.E. 2002-405, 156 O.A.C. 201, 20 B.L.R. (3d) 165, 35 C.C.L.I. (3d) 1, [2002] I.L.R. I-4048, REJB 2002-28036, 111 A.C.W.S. (3d) 935

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108(1) [as am.], (2) [as am.], 134(6) [page243]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 47.02

Authorities referred to

Barnes, John, Sports and the Law in Canada, 3rd ed. (Markham, Ont.: Butterworths, 1996)

Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis Canada, 2011)

APPEAL by the defendant from the judgment of D.A. Wilson J., [2013] O.J. No. 732, 2013 ONSC 1129 (S.C.J.) and [2013] O.J. No. 1531, 2013 ONSC 1977 (S.C.J.) for the plaintiff in a personal injury action.

Tim Buckley and Douglas Smith, for appellant.

Patrick J. Monaghan and Christine Matthews, for respondents.

EPSTEIN J.A. (ROULEAU J.A. concurring): —

Introduction

[1] On June 1, 2008, over 12,000 cyclists took to the Don Valley Parkway in Toronto for a charity bicycle ride to benefit the Heart and Stroke Foundation. As the ride progressed, two groups of cyclists formed at the front, with the first group slightly ahead of the second. The appellant, Thi Thanh Nguyen, was at the back of the first group. The respondent Rolf Kempf was at the front of the second group.

[2] Wanting to join the first group, Kempf approached Nguyen's left side. Suddenly, Nguyen swerved to the left, clipping Kempf's front wheel with his back wheel. Kempf fell and suffered serious injuries. Nguyen did not stop.

[3] In April 2009, Kempf sued Nguyen in negligence for damages arising from the accident. In his amended statement of defence, Nguyen pled, among other things, that Kempf had voluntarily assumed the risk of the ride ("volenti") and that Kempf had himself been negligent.

[4] The trial commenced on February 4, 2013. The parties settled the issue of damages. The issue for trial was, therefore, the extent to which, if at all, Nguyen was liable for Kempf's injuries.

[5] At the opening of trial, counsel for Kempf moved to strike the jury notice Nguyen had served in August 2009. The jury had already been selected. The trial judge struck the jury notice and discharged the jury. The trial judge reasoned that the jury would be confused by the implications of a waiver Kempf had signed before entering the ride, particularly in the light of Nguyen's plea that Kempf voluntarily assumed the risks of the ride. [page244]

[6] After a five-day trial, the trial judge found Nguyen responsible for Kempf's injuries. In her reasons [ [2013] O.J. No. 1531, 2013 ONSC 1977 (S.C.J.)], the trial judge did not address Nguyen's plea of contributory negligence. While she held, at para. 100 of her reasons for judgment, that Nguyen's actions caused Kempf's injuries, the trial judge at no point expressly indicated that she found Nguyen entirely at fault.

[7] On appeal, Nguyen does not contest the trial judge's finding that he was negligent. He raises two substantive grounds. He submits that the trial judge erred in failing to apportion any liability against Kempf. Nguyen further submits that the trial judge erred in finding that the applicable standard of care was negligence as opposed to recklessness. Nguyen also raises a procedural ground. He argues that the trial judge erred in striking the jury notice.

[8] I would allow the appeal on the third ground. With respect, for the reasons that follow I am of the view that the trial judge based her decision to strike the jury upon a wrong or inapplicable principle of law. On this record and in the light of the issues raised by the parties, I would set aside the judgment and order a new trial on the issue of liability to be heard by a judge and a jury.

Background facts

The ride

[9] The ride was open to cyclists of all abilities. Participants could choose a 25, 50 or 75 km route. Nguyen and Kempf signed up for the 75 km route. Much of the event took place on the Don Valley Parkway, a major arterial road in Toronto. The road was closed to motor vehicles for the event.

[10] The ride was not a competitive event, at least formally. There were no prizes. Nonetheless, many cyclists rode as fast as they could. The entire roadway was open to the cyclists but due to the advantages of "drafting", discussed in more detail below, the lead cyclists generally rode in packs. Inside the packs, riders roughly organized into lines, with one cyclist following immediately behind another. The front wheel of a cyclist would often be within a foot or less of the back wheel of the cyclist ahead. The packs were also tight lateral to the direction of travel such that a cyclist would be able to reach out and touch the rider on each side.

[11] Nguyen and Kempf were fairly experienced cyclists. Each belonged to a cycling club and took part in cycling outings several times a week. Both were familiar with the "rules" pertaining to cycling safely in a group, as communicated informally within their cycling groups. They did not know each other. [page245]

[12] To participate in the ride, cyclists had to sign a document described as a waiver. Kempf and Nguyen signed the waiver. Because the waiver is central to this appeal, I set it out here in some detail:

THE BECEL HEART&STROKE RIDE FOR HEART WAIVER AGREEMENT, EVENT DAY JUNE 1, 2008

Please Read Carefully Release Waiver and Indemnity: The Becel Ride for Heart I Agree:

1)That all times during the Becel Heart&Stroke Ride for Heart my safety remains my sole responsibility and that I will observe all rules of the road; and

4. That I am aware of the risks inherent in participating in the Becel Heart&Stroke Ride for Heart and assume all such risks.

IN CONSIDERATION of the acceptance of my application and permission to participate as an entrant in the Becel Heart& Stroke Ride for Heart and post-event activities, I, for myself, my heirs, executors, administrators, successors and assigns, HEREBY RELEASE, WAIVE AND FOREVER DISCHARGE the Heart and Stroke Foundation of Ontario, Unilever Canada, PLH & Associates, The City of Toronto, The Toronto Police Services Board, The Toronto Police Service, The Members of the Toronto Police Service Auxiliary Program, the Chief of Police, the Toronto Transit Commission, Board of Governors of Exhibition Place, the Canadian National Exhibition Association, and all other associations, sanctioning bodies and sponsoring companies, and all their respective agents, officials, servants, claims, demands, damages, costs, expenses, actions and causes of action, whether in law or equity, in respect to death, injury, loss or damage to my person or property HOWSOEVER CAUSED, arising or to arise by reason of my participation in the said event, whether a spectator, participant, competitor or otherwise, whether prior to, during or subsequent to the event, AND NOTWITHSTANDING that any of the foregoing may have contributed to, or the injury or damage may have been occasioned by, the negligence of any the foresaid. I FURTHER HEREBY UNDERTAKE or HOLD AND SAVE HARMLESS and AGREE TO INDEMNIFY all of the aforesaid from and against any and all liability incurred by any or all of them as a result of, or in any way connected with, my participation in the said event.

BY SUBMITTING THIS ENTRY, I ACKNOWLEDGE HAVING READ, UNDERSTOOD AND AGREED TO THE ABOVE WAIVER, RELEASE AND INDEMNITY. I WARRANT that I am physically fit to participate in this event, and that my equipment is mechanically fit and suitable for its intended use in the Becel Heart&Stroke Ride for Heart.

Print Full Name of Participant . . .

(Emphasis in original)

[13] The facts recited thus far are not in dispute. But there were conflicting accounts about how the riders were organized, how fast they were travelling and, most significantly, Nguyen's and Kempf's actions immediately before the accident and what [page246] motivated those actions. To determine liability, the trier of fact had to resolve these factual differences, consider the standard of care called for by the circumstances and decide whether Nguyen, Kempf, or both, were negligent and to what extent.

The accident

Kempf's evidence

[14] Just before the accident, Kempf was leading a group of about ten cyclists. He decided to join the group in front of him in order to take advantage of the draft provided by the lead cyclists. His plan was to move into a position to the left of a cyclist ahead of him. This cyclist was Nguyen. Kempf accelerated to close the gap between him and Nguyen. He got to a position where his front wheel was approximately 50 to 70 cm (about 2 feet) to the left of Nguyen's rear wheel and overlapped Nguyen's rear wheel. He was travelling approximately 20 to 25 kilometres per hour ("kph").

[15] There was no evidence that Kempf shouted out to Nguyen of his intention to move in beside him or that Kempf indicated to Nguyen that he had moved into position beside him.

[16] Nguyen suddenly moved roughly two feet to the left. Nguyen's rear wheel struck Kempf's front wheel. Kempf tried but was unable to avoid the contact: it happened in a "split second".

[17] As a result of the collision, Kempf was thrown into the air and landed on the ground. Other cyclists rode over him and crashed as well.

[18] Nguyen did not stop after the impact of the two bicycles. Kempf later identified Nguyen as the rider who collided with him by looking through pictures of the ride posted online.

Nguyen's evidence

[19] Just prior to the accident, Nguyen was travelling in the lead group of the ride at about 30 to 35 kph. He was drafting off of a line of four to five cyclists directly ahead. Nguyen's front wheel was about one foot behind the back wheel of the cyclist in front of him. There was another cyclist to his left riding parallel with him; their shoulders were roughly one foot apart.

[20] The rider two ahead of Nguyen suddenly slowed down. This caused the rider directly ahead of Nguyen to take the evasive measure of decelerating and swerving to the right. Nguyen was not forewarned of these actions and had no time to consider alternative courses of action. To avoid impact with the riders ahead he moved approximately half a foot, possibly two feet, to [page247] his left. Nguyen acknowledged that he could have veered to the right. He had no time to shout out a warning.

[21] He was not aware there was someone moving up behind him on his left. He did not recall standing up in his pedals: he said it was unlikely that he did.

[22] In cross-examination, Nguyen admitted that his sudden movement to the left was not one he would ordinarily make in a group ride.

[23] Immediately after swerving to the left, Nguyen heard a crash behind him. Nguyen did not look back as he was concentrating on the rider in front of him. Unaware of his involvement in what had just happened, Nguyen carried on with the ride.

Eyewitness evidence

[24] Jason Walter was a friend of Kempf and belonged to the same cycling club as Nguyen. Just before the accident, Walter was behind and to the right of Kempf, approximately six to ten feet away, on a diagonal. During cross-examination, however, Walter admitted that he may have been as many as three bicycles back from Kempf. He saw the accident take place and recognized that both Kempf and Nguyen were involved.

[25] Walter testified that just before the accident Nguyen was directly ahead of Kempf. Walter saw Nguyen stand up on his pedals. Nguyen's bicycle slowed when he stood up, Kempf's front wheel came up to overlap with Nguyen's back wheel and then Nguyen's bike swung out to the left. The rear wheel of Nguyen's bicycle clipped the front wheel of Kempf's bicycle. Walter agreed that the wheel contact was so slight that Nguyen might not have noticed it. Kempf went down. Walter had to take evasive action to avoid the pileup of riders that resulted from the collision between Kempf and Nguyen. Walter stopped and saw Kempf was injured. Everything happened in a matter of seconds. Walter did not see what, if anything, had happened in front of Nguyen.

[26] Craig Tyndall belonged to the same cycling club as Kempf. Just prior to the accident, Tyndall was riding immediately behind Kempf -- travelling at approximately 38 kph. Nguyen was ahead of Kempf and to the right. Tyndall saw Nguyen swerve. Tyndall did not see anyone ahead of Nguyen swerve. Kempf tried to avoid Nguyen but went down. Tyndall crashed as he was directly behind Kempf.

Evidence of other ride participants

[27] A number of other participants in the ride gave evidence relating to what, if anything, they witnessed in relation to the collision. [page248]

[28] Gilles Uguen belonged to the same cycling club as Kempf. He was riding close to the front of the lead group of riders. The group was in a pack with several lines of riders drafting off of one another. In the moments before the accident, Uguen did not notice anything unusual in the pack. The pack was travelling at least 40 kph. Uguen heard a crash and turned to look behind him. He saw Kempf lying on the ground and stopped to check on him.

[29] Herschel Fogelman also belonged to the same cycling club as Kempf. He was in the middle of the lead group and was travelling about 35 to 40 kph. He described the group as "[m] ore pack than pace-line". Just prior to the accident, Fogelman did not observe any riders in the lead group slow down or bunch up. He did not see the accident, but heard the crash behind him. He did not stop. He said to the cyclist beside him that he hoped that he had not caused the crash, although he had no reason to think that he did.

Expert evidence

[30] Andrew Randell testified on behalf of Nguyen as an expert in the area of cycling and the proper conduct of cyclists participating in a group ride.

[31] Randell defined the terms half-wheeling, drafting and pace-line. Half-wheeling occurs when the front wheel of a cyclist overlaps with the back wheel of the cyclist in front of him. Drafting, integral to group riding, involves the front rider's blocking the wind for the riders directly behind him so they can keep pace while saving energy. By sharing the time spent at the front, a line of cyclists can go faster than a single cyclist. A pace-line is a highly organized group of cyclists in which two lines of cyclists rotate to maximize their speed and to shelter one another from the wind.

[32] While Randell's evidence was somewhat unclear as to whether overlapping wheels for a short period of time amounted to half-wheeling or whether the term applies only to overlapping for a more extended period of time, he did testify that overlapping wheels for any period of time is "bad" because of the increased risk that the wheels of the two bicycles will touch -- a major cause of crashes in cycling events.

[33] Randell testified that riders must keep a safe distance between themselves and all other riders: a safe distance is one foot behind the cyclist to the front and one foot and a half to two feet, as measured from the shoulders, from the cyclist to the side. There should be no sudden movements. Signalling potholes and turns is a normal part of group rides and is usually done [page249] vocally. A rider has a responsibility to the group to conduct himself or herself in a safe manner.

[34] Randell expressed the view that if a rider were confronted with a situation where the cyclist directly in front swerved to the right in response to riders' further ahead suddenly slowing down, it would not be improper for the rider to try to avoid a collision by turning to the left, without signaling. This would be true even if there were cyclists to the rider's left. In such a case, the rider would have to act very quickly, almost without thinking.

[35] Randell was asked about Kempf's testimony that just prior to the accident his front wheel was approximately two feet to the left of Nguyen's back wheel. Randell responded by saying:

Looking at the scenario, I think perhaps "error" is a better word than "unreasonable". Mr. Kempf is looking to come in -- to move in beside Mr. Nguyen to take up his position in the group. It's perfectly reasonable. He comes in very tightly. That distance at which he's coming in next to Mr. Nguyen is very tight. . . . [T]he bicycles aren't on rails at a consistent distance from one another, there's movement constantly in the group. So that's a very tight movement to be making next to Mr. Nguyen at speed as you're coming up fast next to him. So that's where I see, you know, an unreasonable closeness that -- I don't see as being particularly necessary.

[36] In cross-examination, Randell agreed that it would be normal for Nguyen to anticipate that a rider might come in and fill the position to his left and that there would be some overlapping of wheels as a result. Randell also agreed that if Nguyen was travelling 30 to 35 kph and suddenly, without warning, and for no apparent reason, moved over two feet and collided with Kempf's bicycle, such an action on Nguyen's part would constitute a breach of the rules governing group rides, would be careless and would jeopardize the group's safety.

The Motion to Strike the Jury Notice

[37] On consent, Nguyen amended his statement of defence prior to the opening of trial. Kempf then moved to strike the jury notice on the basis that these amendments -- namely, pleading the defence of volenti -- changed the nature of the case to one in which Nguyen was seeking a declaration, disqualifying the action from being tried by a jury under the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(2). Kempf also argued that even if volenti was reserved to the trial judge, he would nonetheless be prejudiced if the jury was not struck as the jury would be unable to understand the limited use they could make of the waiver.

[38] Nguyen argued that raising the defence of volenti did not amount to a claim for declaratory relief. He also argued that the waiver was relevant to the inherent risks of the ride and [page250] whether there was contributory negligence. An appropriate charge could provide the jury with the necessary tools to understand the manner in which the waiver could be used in their determination of liability. Nguyen also took the position that the motion to strike was premature and could be renewed if problems arose during the trial.

The trial judge's reasons for striking the jury notice

[39] The trial judge's analysis in support of her decision to strike the jury notice and discharge the jury are set out in paras. 18-23 of the motion reasons [[2013] O.J. No. 732, 2013 ONSC 1129 (S.C.J.)]:

The jury will be asked to determine fault for the accident. The waiver will be an exhibit and witnesses will necessarily be questioned and cross examined on the document. In my view, there is a real danger that the jury, in answering the liability questions, will be confused by the contents of the waiver or perhaps use it inappropriately in their deliberations. For example, after reading the waiver, the jury could erroneously conclude that because it states that [Kempf] releases others from any liability associated with the Ride, that he has no right to bring this lawsuit. To put it another way, because the waiver states that [Kempf] will release all others from "all liability" arising from his participation in the Ride, there is a concern that the jury will misinterpret that document and conclude on the basis of the wording of the release that there could be no liability imposed on anyone, regardless of the findings of fact.

There is an additional concern. [Nguyen] has pleaded the volenti defence, which, if successful, precludes any recovery by [Kempf]. As Justice Wilson stated in Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 SCR 1186, "Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the Plaintiff has assumed both the physical and the legal risk involved in the activity."

To be successful, [Nguyen] must demonstrate that [Kempf] willingly assumed a risk that was fully understood and agreed to give up any cause of action. Thus, counsel must of necessity ask [Kempf] questions about what his understanding was when he signed the waiver and what he was agreeing to, what rights he was giving up. [Kempf] and other witnesses will be asked about the waiver, which will be an exhibit at the trial.

While I agree the determination of the application of volenti is a function for the Court, in my opinion, the evidence necessary to put that defence forward will be confusing to the jury whose duty it is to determine the question of liability. There must be evidence about the signing of the waiver and I agree with the submissions of the solicitor for [Kempf] that the jury will have to consider the effect of the waiver and this is an issue of law. In addition, it will be difficult, if not impossible, for the jury to only use the waiver for a narrow purpose, as suggested by the solicitor for [Nguyen].

The case before me can be distinguished from Harrison v. Antonopoulos, 2002 CanLII 28725 (ON SC), [2002] O.J. No. 4890 [(S.C.)] relied on by the solicitor for [Nguyen]. In that case, the jury was being asked to find as a fact whether the Plaintiff was [page251] continuously disabled within the meaning of an insurance policy. While the Plaintiff sought a declaration from the Court about entitlement to future benefits, I agree with the reasoning of Lang J. that the jury was not being asked to make a finding of declaratory relief in the sense that the term is used in section 108(2) of the Courts of Justice Act. Rather, they were being asked to make a finding of fact concerning disability based on the evidence.

In the case before me, the issue of the waiver must be thoroughly canvassed at trial in order to enable the defence of volenti to be argued. The waiver is inextricably bound up in the liability issue and the jury would not be able to ignore it and the evidence surrounding it during their deliberations and this would be inappropriate, given the jury's function. They are to determine the issue of liability, not to interpret the waiver and its effect. While I appreciate counsel would be careful in questions about the waiver, that does not change the fact that in my view, this case involves "in pith and substance" to borrow a phrase from Justice Howden in MacNeil (Litigation Guardian of) v. Bryan, 2009 CanLII 28648 (ON SC), [2009] O.J. No. 2344 [(S.C.)] declaratory relief which is not to be determined by a jury.

[40] In addition, at para. 24 of the motion reasons, the trial judge rejected Nguyen's suggestion that she adopt a wait-and-see approach.[^1] She accepted that if complexity was the problem, it may make sense to hear at least some of the evidence before deciding whether to strike the jury notice. However, the trial judge identified the basis of the motion as being "the concern that in order to determine the issue of liability, given the pleading of volenti, the jury will necessarily hear the evidence about the waiver". She went on to find that "[e]ven with a strong charge that instructs the jury on the proper use to make of the waiver evidence", it would be "impossible" for the jury to use it for the narrow purposes relevant to determining liability. She concluded, in the same paragraph, as follows:

I do not need to hear evidence to make the determination as to whether or not it is proper for the case to be heard by the jury given that the volenti defence is being put forward. I am satisfied that in all of the circumstances, justice is better served by dismissing the jury at this juncture.

Applicable legal principles

[41] The right to a trial by jury in civil actions is set out in s. 108(1) of the Courts of Justice Act:

108(1) In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided. [page252]

[42] Section 108(2) contains a list of claims for relief that cannot be tried by a jury. Declaratory relief is one such claim.

[43] In the majority reasons in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 496, O'Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice and appellate review of such a decision, as paraphrased here:

(1) The right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons (at para. 36). See, also, King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32, at p. 533 S.C.R.: "the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons".

(2) A party moving to strike the jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (at para. 37).

(3) Appellate review of a trial court's exercise of its discretion to dispense with a jury is limited. The reviewing court can only intervene if the appellant can show that the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principle of law (at para. 40). See, also, Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295 (C.A.), at p. 69 O.R., leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 800n, [1985] S.C.C.A. No. 93. Put another way, the appellate court should inquire into whether there was a reasonable basis for the trial judge's exercise of discretion. If not, the trial judge will have made a reversible error (at para. 52).

(4) The reviewing court should not interfere with the trial judge's exercise of discretion simply because it disagrees with the conclusion reached. Put another way, an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be (at para. 42). In many situations, the trial judge's discretion may, with equal propriety, be exercised for or against discharging the jury (at para. 91). See, also, Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at p. 625 O.R. [page253]

(5) The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science (at paras. 48-49).

(6) While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases (at para. 58).

(7) It is reversible error for a trial judge to strike a jury notice on the basis that it would be difficult for her to explain the law to the jury. Trial judges are presumed to know the law and to be able to explain it to a jury (at para. 63). See, also, Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109 (C.A.), at para. 70.

(8) In some cases, it is preferable to take a "wait and see" approach before deciding whether to discharge the jury. Experience has shown that in many instances the anticipated complexities of a case or other concerns do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary (at para. 70).

(9) While in many cases the "wait and see" approach is the most prudent course to follow, it is not a rule of law. The Courts of Justice Act and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contemplate that a judge may strike a jury notice even before a trial has begun (at paras. 71-72).

(10) If the reviewing court concludes that the trial judge erred in striking the jury notice, the merits of the action must be considered (at para. 92). As stated in King, at p. 533 S.C.R., a new trial is not warranted "if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge". [page254]

[44] While several of these principles speak to the considerable discretion that is vested in the trial judge when deciding whether to strike a jury notice and the limited appellate review of the exercise of that discretion, cases such as Hunt and Brady v. Lamb (2005), 2005 CanLII 46734 (ON CA), 78 O.R. (3d) 680, [2005] O.J. No. 5403 (C.A.) illustrate that this court will order a new trial when it has found that a trial judge has exercised that discretion arbitrarily or based on improper principles so as to enforce the statutory right to a jury trial.

Analysis

[45] The record indicates that Kempf advanced two independent arguments in support of his motion to strike the jury -- one relating to the declaratory nature of volenti and the second relating to the complexity introduced by the waiver.

[46] While I find the trial judge's reasons for striking the jury somewhat unclear, my interpretation of them is that her primary concern was that, even with proper instructions, the jury would not be able to understand the limited use they could, in law, make of the waiver. She was also concerned that the plea of volenti involved a claim for declaratory relief, a matter precluded from being determined by a jury. She viewed the relevance of the waiver and the plea of volenti as being inextricably linked.

[47] The trial judge's motion reasons do not reflect an arbitrary or capricious exercise of judicial discretion. The issue is whether she erred by basing her decision to strike the jury notice upon wrong or inapplicable principles of law. For the following reasons, I am of the view that the trial judge did so err.

The volenti issue

[48] The trial judge's concern about Nguyen's plea of volenti is apparent in statements she made in her reasons when considering the volenti issue. At paras. 23-24, she commented, in reference to that issue, that "this case involves 'in pith and substance' . . . declaratory relief" and "I do not need to hear evidence to make the determination as to whether or not it is proper for the case to be heard by the jury given that the volenti defence is being put forward."

[49] Volenti, however, is not a claim for declaratory relief: it is a full defence to a finding of negligence. In Dube v. Labar, 1986 CanLII 67 (SCC), [1986] 1 S.C.R. 649, [1986] S.C.J. No. 29, at p. 658 S.C.R., writing for the majority, Estey J. endorsed the following description of the volenti defence from the court's earlier decision in Stein v. Lehnert, 1962 CanLII 85 (SCC), [1963] S.C.R. 38, [1962] S.C.J. No. 68: [page255]

[W]here a driver of a motor vehicle invokes the maxim volenti non fit injuria as a defence to an action for damages for injuries caused by his negligence to a passenger, the burden lies upon the defendant of proving that the plaintiff, expressly or by necessary implication, agreed to exempt the defendant from liability for any damage suffered by the plaintiff occasioned by that negligence[.]

[50] In Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis Canada, 2011), the authors state, at p. 520, "[V]olenti is a question of fact normally decided by the jury".

[51] On the basis of this analysis, to the extent that the trial judge's decision to strike the jury was based on the plea of volenti, I am of the view that she erred.

The waiver issue

[52] It was the trial judge's duty to determine the applicable legal principles, including the ways in which the waiver might be relevant to liability, and instruct the jury with respect to these principles: Hunt, at paras. 70-72.

[53] According to Nguyen's counsel, the waiver was relevant to the assumption of risk and contributory negligence.

[54] As previously indicated, the trial judge struck the jury primarily on the basis of her apprehension that the jury would not be able to understand the limited use they could make of the waiver. The trial judge [[2013] O.J. No. 732, 2013 ONSC 1129 (S.C.J.)] expressed her view [at para. 21] that it would be "difficult, if not impossible, for the jury to only use the waiver for a narrow purpose, as suggested by the solicitor for [Nguyen]". She was concerned that the jury would misinterpret the document and conclude that it released everyone involved in the ride, including other cyclists, of any liability. Significantly, in para. 24, the trial judge said that "[e]ven with a strong charge that instructs the jury on the proper use to make of the waiver evidence . . . it would be impossible for the jury to use the evidence . . . in only a very narrow fashion and to ignore the rest of the evidence about it".

[55] In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, at p. 692 S.C.R., Dickson C.J.C. cautioned: "In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose" (emphasis in original). This principle extends to civil juries: Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, [1997] S.C.J. No. 43, at para. 15. This court has made it clear that discharging the jury on the basis that it would [page256] be too difficult to explain the law is reversible error: Hunt, at paras. 70-72; Cowles, at para. 63.

[56] In my view, the trial judge erred in taking this position. With respect, as discussed, it was the trial judge's duty to determine the legal principles to be applied and instruct the jury in accordance with these principles.

[57] While perhaps awkwardly worded, this particular contract is not a complicated or lengthy document. By signing the waiver, the participants agreed that they would follow the rules of the road, they were responsible for their own safety, they were riding at their own risk, they were physically fit and their bicycles were mechanically fit. By signing the waiver, the participants also agreed to absolve the ride organizers and related organizations of liability for any injuries or damages suffered. I note that in interpreting the waiver, at para. 108 of her reasons for judgment [ [2013] O.J. No. 1531, 2013 ONSC 1977 (S.C.J.)], the trial judge did not find it necessary to resort to any principles of contractual interpretation or otherwise labour over its meaning. She did not identify any ambiguity. In one short paragraph of her judgment, the trial judge analyzes the waiver and finds that it "does not release other participants . . . including damages occasioned by the negligence of a participant or other competitor" (para. 108). I view this interpretation, as the trial judge apparently did, as clear.

[58] The limited application of the waiver is hardly beyond the ken of members of a jury. I cannot see how a properly instructed jury would have difficulty understanding that the document was not a bar to Kempf's action. The waiver is a contract between the participants and the ride organizers. It is not a contract between Kempf and Nguyen, nor does it contain any terms that release other ride participants from liability for their negligence. In any event, civil juries in Ontario are able to decide issues involving contracts: see, e.g., Wadhwani v. State Farm Mutual Automobile Insurance Co., [2013] O.J. No. 4972, 2013 ONCA 662, 2013 CarswellOnt 15078, at para. 2; Barlow v. Citadel General Assurance Co. (2009), 94 O.R. (3d) 399, [2009] O.J. No. 435, 2009 ONCA 106, at para. 1.

[59] This is, as counsel for Kempf described it in oral argument, a rather simple personal injury action. There was a collision between two cyclists. Sadly, one was seriously injured. To determine liability, the jury would have to sift through the often conflicting evidence, make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day. [page257]

[60] In addition to the wisdom of their collective life experience, a jury would bring to this action, as juries always do, a reflection of societal values. As Binnie J. wrote for the majority in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18, at para. 136, "One of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities." In my view, this is an appropriate proceeding for a jury to apply "a healthy measure of common sense", as prescribed by Dickson C.J.C. in Corbett, at p. 692 S.C.R., in order to make findings of fact and determine liability for the accident.

[61] In summary, this is not a case where the trial judge, in the exercise of her discretion, strikes the jury on the ground that the evidence was too technical or complex for the jury to make a proper assessment of liability. It was decided primarily on the basis that the jury members would be incapable of understanding the legal effect of the waiver, even after careful instruction.

[62] In my opinion, she erred in this regard.

The wait and see issue

[63] The trial judge reasoned that a "wait and see" approach might have been appropriate if the problem was one of complexity. Here, however, because the issue was not complexity, but rather the waiver and volenti, the trial judge's concerns would not be attenuated if a wait and see approach were taken.

[64] I disagree. In my view, it would have been preferable for the trial judge to have reserved her decision on the motion until after the evidence had been completed, as Nguyen's counsel urged her to do, or, perhaps, until a discrete problem arose. As the cases emphasize, the "wait and see" approach is generally preferred. I say so for two reasons. From a practical perspective, often the anticipated complexities of a case or other concerns giving rise to the motion to dismiss a jury do not materialize.[^2] From a principled perspective, the right to a jury trial is a fundamental, substantive right that should not be interfered with except for very cogent reasons: Cowles, at para. 70.

[65] In my view, the "wait and see" approach would have been preferable, but taking such an approach is not a rule of law. For this reason, I would not deal further with this issue. [page258]

The conclusion

[66] I do not doubt that the trial judge's decision to strike the jury notice and discharge the jury was motivated by her interest in ensuring the parties received a fair trial. However, I see nothing in this case -- the issues, evidence or applicable law -- that supports the conclusion that a jury, properly instructed, could not do justice to the parties. I am satisfied that the trial judge's ruling reveals errors that require this court's intervention.

The remedy

[67] My conclusion that the trial judge erred in striking the jury notice and discharging the jury begs the question of whether a new trial should be ordered. The question calls for the application of the test articulated by the Supreme Court in King, at p. 533 S.C.R.:

This Court has more than once affirmed that the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons; but I cannot think that a new trial should be directed by reason of a trial judge deciding to discharge the jury and complete the trial himself, even if the appellate court was satisfied that the course followed by the trial judge was wrong in law, if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge.

(Emphasis added)

[68] I am not satisfied that, in this action, any jury acting reasonably would inevitably reach the same result as the trial judge. In my view, there are at least three ways in which a jury acting reasonably could part ways with the trial judge.

[69] First, the trial judge, in her reasons for judgment, makes no reference to contributory negligence -- a defence that Nguyen pleaded and that was argued by both counsel in their closing submissions.

[70] The trial judge should have addressed this issue. There was evidence capable of supporting a finding of contributory negligence, including Kempf's evidence that he failed to warn Nguyen that he was approaching from behind; Randell's evidence that Kempf came unnecessarily close to Nguyen; and the evidence that, at the time of the collision, Kempf was half-wheeling. The last point is of particular significance given the undisputed evidence concerning the inherent danger associated with half-wheeling, even if just briefly.

[71] Second, despite the trial judge's reasons for preferring Kempf's evidence over Nguyen's, it would be open to a jury to assess credibility differently. Nguyen, Kempf and Walter gave differing versions of what took place at the time of the accident. [page259] This is understandable in the light of the circumstances, namely, cyclists, in a pack, travelling at high speeds, focusing on the rapidly changing dynamics around them.

[72] Third, in deciding negligence and possibly apportioning it, a jury acting reasonably could take a different approach to the standard of care than the trial judge. The trial judgment focuses on whether Nguyen broke the "rules" of a group ride, but it would be open to a jury acting reasonably to reject the "rules" as a de facto standard of care. The evidence was that the ride was a charity event open to all participants. It was not a professional cycling event or one restricted to members of a cycling club. It would not necessarily be reasonable for Kempf or Nguyen to expect that the "rules" would be known to other participants and to rely on their adherence by other riders. In addition, Kempf and Nguyen were part of a group of predominantly recreational cyclists, separated by inches, hurtling along a public roadway at speeds of up to 40 kph. Whether either party's acts or omissions breached the standard of care in these circumstances was an open question.

[73] I am satisfied that there is evidence upon which a jury properly instructed and acting reasonably could come to a different conclusion than that reached by the trial judge. While ordering a new trial is to be avoided where possible, I am of the view that, in these circumstances, a new trial is necessary.

Other Issues Raised in this Appeal

[74] Nguyen raises the following additional issues on appeal:

(1) Did the trial judge err in failing to consider contributory negligence?

(2) Did the trial judge err in finding that the applicable standard of care is simple negligence, rather than recklessness?

[75] In my view, it is not appropriate to deal with these issues.

[76] First, a new trial is a complete response to the argument that the trial judge erred by failing to address contributory negligence in her reasons.

[77] Second, the applicable standard of care issue is best left to be considered in the context of the new trial, informed, as it should be, by the particular facts of the case.

Disposition

[78] Given I have concluded that the trial judge's decision to strike the jury notice was based on errors in principle and that a jury would not necessarily have arrived at the same result as [page260] the trial judge, I would allow the appeal, set aside the decision below and direct a new trial, limited to the issue of liability, before a judge and jury.

[79] Pursuant to the agreement of counsel, I would award costs of the appeal in favour of Nguyen fixed in the amount of $17,500, all inclusive. I would also abide by the position taken by counsel that they will attempt to agree upon the trial costs, failing which they will return to the trial judge for resolution of that issue.

[80] LASKIN J.A. (dissenting): -- I have read the reasons of my colleague Epstein J.A. I do not agree with her conclusion that the trial judge erred by striking the jury notice and discharging the jury, and I do not agree with her proposed order of a new trial.

[81] In my opinion, the trial judge did not err in exercising her discretion to discharge the jury. And even if she did, a new trial is not called for because any jury acting reasonably would have reached the same result as she did: they would have found Nguyen liable for Kempf's injuries. Also, I do not agree with Nguyen's other two grounds of appeal, on the standard of care and contributory negligence. I would therefore dismiss his appeal.

A. Overview

(a) What this case is about

[82] Epstein J.A. has reviewed the evidence in detail. Here, I summarize the important facts.

[83] Both Kempf and Nguyen were experienced cyclists. Each was a member of a cycling club and each had participated in many group rides. On June 1, 2008, Kempf and Nguyen participated in a 75 km charity bike ride to raise money for the Heart and Stroke Foundation. The ride took place mostly on Toronto's Don Valley Parkway, which was closed to vehicular traffic for the event.

[84] There are three basic rules of the road for cyclists on a group ride: keep your line; keep your pace; do not make an unannounced sudden movement. All cyclists understand these rules. Indeed, they are a matter of common sense.[^3] Nguyen broke all three rules, and his doing so caused the collision that resulted in Kempf's injuries. [page261]

[85] Just before the collision, Nguyen was the last cyclist in a group of cyclists slightly ahead of another group led by Kempf. Kempf decided to join Nguyen's group to gain the benefit of the "draft" -- a well-known and well-accepted practice in which the lead cyclist in a group breaks the wind so that the cyclists close behind do not have to expend as much energy.

[86] Kempf moved up to the left of Nguyen, their bikes about 50 to 70 cm (or about two feet) apart. As Kempf's front wheel pulled even with Nguyen's rear wheel, Nguyen slowed slightly, stood up on his pedals and suddenly, without giving any signal and for no discernible reason, swung his bike sharply to the left, striking the front wheel of Kempf's bike. Kempf was thrown to the ground, and other cyclists ran over him. Nguyen never bothered to stop. Though he had caused the collision, he just kept riding.

(b) The litigation

[87] Kempf sued Nguyen for damages for negligence. In his pleading, Nguyen alleged Kempf had voluntarily assumed the risk of injury, relying on the defence of volenti non fit injuria -- literally, "to one who is willing, no harm is done". Nguyen also relied on a "waiver agreement", which each cyclist on the ride had been obliged to sign. And he also alleged that an emergency situation, created when several riders in front of him had slowed down, had forced him to veer sharply to his left. Finally, Nguyen claimed that Kempf was contributorily negligent for his injuries.

[88] Nguyen served a jury notice. At the beginning of the trial, Kempf brought a motion to strike the jury notice. After lengthy argument, the trial judge granted the motion. In a written ruling, she concluded "somewhat reluctantly" that justice to the parties would be better served by discharging the jury.

[89] The trial lasted six days. The trial judge heard evidence from Kempf, Nguyen, five other cyclists on the ride and an expert cyclist called by the defence. She delivered lengthy and thoughtful reasons in which she found Nguyen liable. The parties had agreed on damages.

(c) The grounds of appeal

[90] Nguyen raises three issues on appeal:

(1) The trial judge erred in finding that the standard of care was ordinary negligence. To impose liability on a participant in a sporting event, the appropriate standard of care is intentional or reckless conduct. [page262]

(2) The trial judge erred by failing to consider whether Kempf was contributorily negligent.

(3) The trial judge erred by striking the jury notice and discharging the jury.

My colleague addresses only the third ground of appeal.

(d) My position, summarized

[91] (1) The trial judge was correct in holding that the appropriate standard of care was ordinary negligence. Neither logic, nor policy, nor case law supports a recklessness standard.

[92] (2) Although Nguyen had pleaded contributory negligence, he did not press the issue strongly at trial. Still, the trial judge considered the reasonableness of Kempf's conduct. If she erred in failing to make a specific finding on contributory negligence, her error was harmless. It is evident from her reasons and the record that Kempf was not negligent and that Nguyen was entirely at fault for Kempf's injuries.

[93] (3)(i) An appeal court's right to interfere with a trial judge's discretionary decision to discharge a jury is very limited. An appellant must show the trial judge exercised this discretion arbitrarily or capriciously, or based on a wrong principle of law. Nguyen has not met this burden.

[94] As Epstein J.A. acknowledges, the trial judge did not act arbitrarily or capriciously. Quite the opposite. She heard submissions on the motion to discharge the jury for almost three hours; she actively questioned counsel on their positions; and she gave a four-and-a-half page, single-spaced ruling in which she expressly considered the parties' submissions for and against retaining the jury and the applicable case law, and explained why she somewhat reluctantly discharged the jury.

[95] The trial judge also set out the correct test: will justice to the parties be better served by dismissing or retaining the jury? Thus, Nguyen and my colleague are left with the argument that though the trial judge stated the test correctly, she applied it unreasonably. Respectfully, I do not find this argument at all persuasive.

[96] A trial judge is always in the best position to decide whether to retain a jury, a decision our court has acknowledged may often "with equal propriety, be exercised for or against discharging the jury".[^4] And this trial judge is one of our province's [page263] most experienced judges in personal injuries litigation, having tried many cases both with and without a jury. For reasons I will expand on, she was concerned that, in combination with the volenti defence, the waiver agreement -- which was poorly drafted and hard to read, yet on which defence counsel intended to question the witnesses -- would confuse the jury and would be used by them improperly despite a strong charge. This was a reasonable exercise of her discretion. This court has no right to intervene.

[97] (ii) Even if the trial judge should have retained the jury, a new trial is not called for because any jury acting reasonably would have reached the same result. Kempf's account of the collision was credible and was supported by the evidence of other cyclists, who had observed what had happened. Nguyen, on the other hand, gave an explanation for his cycling that defied common sense and that was not supported by a single other witness. Even his own expert acknowledged Nguyen had breached the rules of the road and had cycled carelessly, even recklessly. On this record, no jury acting reasonably could have reached a decision different from that of the trial judge.

[98] This collision occurred on June 1, 2008. The new trial proposed by my colleague would take place, if at all, at the earliest in mid-2015. Holding a new trial seven years after this accident happened does not serve the administration of justice well. This appeal should be dismissed.

B. The Issues on Appeal

(1) Standard of care

[99] The trial judge found the following:

-- Nguyen owed Kempf a duty of care;

-- the standard of care was the ordinary negligence standard;

Nguyen had breached the standard of care, and was therefore negligent;

-- Nguyen's negligence had caused Kempf's injuries;

the waiver agreement did not release one cyclist's negligence claim against another.

[100] The trial judge set out her finding of negligence, at para. 98 of her reasons [[2013] O.J. No. 1531, 2013 ONSC 1977 (S.C.J.)]:

I find that Nguyen was negligent, that his negligence consisted of making a sudden movement while riding in a group, failing to maintain a straight line, failing to signal his intention to move and moving directly into the [page264] path of the Plaintiff when he could have moved out to the right. Given that I reject Nguyen's evidence about the existence of a situation of emergency, there is no need for me to consider the doctrine of agony of collision as submitted by the solicitor for the Defendant.

[101] Nguyen accepts the trial judge's findings that he owed Kempf a duty of care and that the waiver did not release Kempf's claim against him. He challenges the trial judge's finding that the appropriate standard of care was ordinary negligence. He contends the appropriate standard of care to impose liability on a participant in a sporting event is intention to cause harm, or, at the very least, recklessness. Nguyen maintains that though he may have been negligent, he did not intend to harm Kempf and he was not reckless.

[102] I see no justification for departing from the ordinary negligence standard, which has served the common law so well, in so many different contexts and activities, for so many years.

[103] Negligence law uses the fictional reasonable person. The standard of care in negligence is that of the reasonable person in similar circumstances: see Hill v. Hamilton Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, at para. 69. A defendant's conduct is negligent or breaches the standard of care if it creates an unreasonable risk of harm: see Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, at para. 7.

[104] As is evident from these formulations, the negligence standard is flexible. Its application depends on who the actors are and what activities they are engaged in. Unreasonableness means different things for children, for professionals, for persons with mental disabilities, for motorists and so on.

[105] The risks parties assume depend on the nature of the activity in which they participate. The risks one assumes playing a sport differ from the risks one assumes when going for a morning run or walking to work. In sports, the risks one assumes vary depending on the sport. The risks assumed in a sport where physical contact is part of the game, such as hockey or basketball, differ from the risks assumed in a sport where there is no physical contact, such as tennis or road cycling.

[106] In hockey or basketball, for example, players have to assume some risk of injury from bodily contact, even contact intentionally inflicted or in breach of the rules of the game. A body check -- even one that calls for a penalty -- or contact fighting for a rebound in which the opposing player is called for a foul is part of the ordinary risk of each game. Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play. See, e.g., [page265] John Barnes, Sports and the Law in Canada, 3rd ed. (Markham, Ont.: Butterworths, 1996), at p. 279.

[107] In other words, the ordinary negligence standard is sufficiently flexible to accommodate the different risks inherent in different sports and sporting activities. There is no need to exempt sports participants from the application of ordinary negligence law. This was the conclusion the trial judge reached after a thorough analysis of the standard of care in sporting activities and the risks inherent in cycling on a group ride. I agree with her analysis. The most important passages are at paras. 86 and 90 of her reasons:

It seems to me that by engaging in a particular sport, the player understands that there are certain risks that are part of a sport. I agree that the standard of care that is owed to other participants in a sport is different than that which is owed to a person in the activities of normal life. Further, what constitutes conduct of a reasonable person will vary from sport to sport. I concur with the comments of my colleague Justice Milanetti in Nichols v. Sibbick where she stated, "The principal questions to be determined by the judge are the nature of the risks assumed and what a reasonable competitor would do in the circumstances of each case . . ."

The case before me involves injuries occasioned not in the usual activities of daily life, but rather in the context of an organized cycling event for charity. I agree that when the Plaintiff decided to participate in this ride, he assumed the usual risks associated with the sport. He agreed with the risks including the actions of reasonable cyclists who he could expect to follow the known rules governing group rides. He did not, however, agree to accept the risks associated with conduct that did not accord with the usual rules. In my opinion, the correct standard of care that must be met in this case is that of negligence. It is sufficient if the Plaintiff proves that the conduct of the Defendant fell short of what a reasonable cyclist participating in a group ride for charity would do or refrain from doing. While I agree that what constitutes reasonable care depends on what the participant agreed to reasonably expect given the nature of the sporting event, in a case involving cycling, there is no reason to impose a higher onus on the Plaintiff, to prove that the Defendant conducted himself in a reckless fashion. By its nature cycling is not a contact sport or one that involves physical encounters with opponents such as football or rugby.

(Citations omitted)

[108] As the trial judge recognized, a couple of trial judgments in Ontario have used the word "reckless" when imposing liability on a defendant's conduct in a sporting event. See Fink v. Greeniaus (1973), 1973 CanLII 777 (ON SC), 2 O.R. (2d) 541, [1973] O.J. No. 2283 (H.C.J.), at pp. 549 and 551 O.R.; and Gilsenan v. Gunning, 1982 CanLII 3139 (ON SC), [1982] O.J. No. 655, 137 D.L.R. (3d) 252 (H.C.J.), at p. 259 D.L.R. The use of that word is unfortunate. In both cases, the trial judge applied an ordinary negligence standard in finding the defendant liable. [page266] That standard, not a recklessness standard, is the correct standard of care. I would not give effect to this ground of appeal.

(2) No contributory negligence

[109] In his pleading, Nguyen alleged that Kempf was contributorily negligent because Kempf did not take reasonable care for his own safety. In her reasons, the trial judge did not expressly deal with contributory negligence. Nguyen submits that her failure to do so was a reversible error, warranting a new trial. I do not agree with this submission. If the trial judge erred by failing to expressly address the contributory negligence claim, her error was harmless because Nguyen's allegation of contributory negligence had no air of reality.

[110] Although Nguyen pleaded contributory negligence and raised it briefly in closing argument, he did not press the issue during the evidence. He did not cross-examine either Kempf or Kempf's witnesses on whether Kempf failed to take reasonable care for his own safety. Nguyen's defence essentially rested on the waiver agreement and his allegedly justifiable reaction to an emergency situation he claimed had occurred.[^5]

[111] In this court, Nguyen suggests two ways in which Kempf may have been contributorily negligent: Kempf was "half-wheeling" and he brought his bicycle up too close to Nguyen's bicycle. In her reasons for ordering a new trial, my colleague also suggests there was evidence Kempf was half-wheeling and was cycling too close to Nguyen. I disagree with both Nguyen and Epstein J.A. On my review of the record, neither suggestion is supportable.

[112] Half-wheeling is a manoeuvre frowned on in cycling. Andrew Randell, the expert called by the defendant, gave evidence about what it means. Randell was a member of Canada's national cycling team for five years and in 2002 was the Canadian national road race champion. He said:

Q. So let's start with the term half-wheel; what does that mean?

R. Half-wheeling is an overlapping between two riders of their wheels. So the front rider and the back rider -- the back rider's wheel, front wheel, will be overlapped with the back rider's [sic] rear wheel, but it is a consistent overlapping all the time, it's not a momentary overlap, although even that is bad, but it's more of a consistent doing it over and over again over consistent periods of time.

(Emphasis added) [page267]

And:

Q. Okay. And you said that half-wheeling is a condition where you overlap wheels, I guess, persistently

A. Yes.

[113] The trial judge addressed Kempf's cycling and found he had not been half-wheeling. Kempf had brought his front wheel alongside Nguyen's rear wheel only temporarily to take advantage of the draft. As important, Randell was of the same view. He said: "I wouldn't classify what he [Kempf] was doing as half-wheeling." Rather, Randell agreed with plaintiff's counsel during cross-examination that what Kempf did -- a momentary overlapping of wheels to take advantage of the draft -- is "perfectly acceptable in group riding" and "perfectly normal and ordinary in this situation". He also agreed that "inevitably, there's going to be at least some overlapping of the front wheel to the back wheel".

[114] The evidence on distance was that when Kempf brought his bicycle alongside Nguyen's bicycle, the two bikes were about 50 to 70 cm, or 2 feet, apart. Again, Nguyen's expert, Randell, acknowledged that this was a reasonable distance apart -- "[t]hat's acceptable riding". It was especially so on the Don Valley Parkway -- "about as good as a paved surface can get in terms of smoothness of surface". Finally, but importantly, Nguyen led no evidence to show the collision would have been avoided if the bicycles had been farther apart.

[115] The trial judge concluded that Nguyen was entirely at fault for Kempf's injuries. The trial record supported her conclusion. Her failure to advert expressly to the defendant's claim of contributory negligence does not justify this court's intervention.

[116] In Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 39, the Supreme Court emphasized that an omission in trial reasons justifies an appellate court's intervention only if the omission is a material error or taints the trial judge's conclusion.

As a starting point to the discussion of the ordinary or reasonable motorist, we emphasize that the failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. This was made clear by the recent decision of Van de Perre, supra, where Bastarache J. says, at para. 15:

. . . omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the [page268] evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

[117] Here, if the trial judge erred in failing to advert expressly to Nguyen's defence of contributory negligence, the error was hardly material. She considered Kempf's cycling. He testified that at all times he followed the rules of a group ride, and she accepted his evidence. I would not give effect to this ground of appeal.

(3) Discharge of the jury

(i) A reasonable exercise of the trial judge's discretion

[118] Significant deference is owed to a trial judge's discretionary decision to retain or discharge a jury. This deferential standard of appellate review is well established. An appeal court may intervene only if "the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law": Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295 (C.A.), at p. 69 O.R., leave to appeal to S.C.C. refused [1985] S.C.C.A. No. 93. See, also, Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177 (C.A.), at para. 40, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 496. Put simply, and in keeping with the usual standard of review of discretionary decisions, appellate intervention is justified only if the trial judge exercised this discretion unreasonably or erred in principle. See Cowles, at para. 52.

[119] In assessing the reasonableness standard of review, context matters. Although the right to a trial by jury in a civil case is an important right, it is far from absolute. The trial judge's discretion to retain or dismiss a jury is very broad: Cowles, at para. 38. Under rule 47.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 -- the rule invoked in this case -- a trial judge may strike out a jury notice where a jury trial is inappropriate. The question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury? See Cowles, at para. 37. And, as this court and the Supreme Court of Canada have emphasized, the person in the best position to decide this question is the trial judge. See Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, [2002] O.J. No. 3109 (C.A.), at para. 52; and Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, [1997] S.C.J. No. 43, at para. 26.

[120] Where a trial judge draws the line between discharging or retaining a jury is not an exact science. There is no bright-line test for the exercise of the trial judge's discretion. And so, in [page269] Graham v. Rourke, supra, at p. 625 O.R., Doherty J.A. noted, "In many situations that discretion may, with equal propriety, be exercised for or against discharging the jury."

[121] It is against this wide leeway given to a trial judge that we must assess the decision in this case to discharge the jury. Some judges faced with Kempf's motion may have retained the jury. But unless the trial judge had no reasonable basis for discharging the jury, we have no right to intervene. As I said in my overview, in my opinion, the trial judge exercised her discretion reasonably.

[122] Epstein J.A. accepts that the trial judge did not act arbitrarily or capriciously. Indeed she did not, for the reasons set out in my overview. And she did not act on a wrong principle. The trial judge correctly stated the test she had to apply. At para. 12 of her reasons for striking the jury notice [[2013] O.J. No. 732, 2013 ONSC 1129 (S.C.J.)], she said:

It is trite law to state that the right to a jury trial is an important one which should not be taken away lightly: Hunt v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.). When entertaining a motion to dismiss the jury, the presiding judge must decide whether on the particular facts of the case, justice to the parties will be better served by dismissing or retaining the jury. The decision to discharge a jury is a matter of judicial discretion which must be reasonable in the circumstances.

And then, at para. 15, she repeated the correct test:

However, I am required to consider the case as framed by the pleadings and the anticipated evidence and decide whether justice is best served by retaining the jury or discharging it. I have come to the conclusion, somewhat reluctantly, that this action cannot proceed with a jury.

[123] Nonetheless, Epstein J.A. says that in applying the test, the trial judge erred by relying on the plea of volenti and the waiver as bases to discharge the jury. And my colleague says that, though not an error, it would have been preferable had the trial judge adopted a "wait and see" approach to the decision to discharge the jury. I disagree with my colleague on each of her three points. I will list her points (in italics) and my response to each one.

(1) The trial judge erred in law by relying on Nguyen's volenti defence as a basis to discharge the jury

[124] Epstein J.A. says the trial judge should not have relied on Nguyen's plea of volenti to strike the jury because volenti is a defence to a finding of negligence, not a claim for declaratory relief. I agree that if the trial judge had characterized Nguyen's [page270] plea of volenti as a claim for declaratory relief, she would have erred. But she did not do so.

[125] As the trial judge wrote, at para. 13 of her reasons, had she characterized the defence as a claim for declaratory relief, she would have been required to discharge the jury because under s. 108(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a claim for declaratory relief cannot be tried with a jury:

While section 108(2) . . . makes it clear that a claim for declaratory relief cannot be tried with a jury and [plaintiff's counsel] argues that the case being presented by the Defendant is akin to a request for declaratory relief, in my view, I do not need to make that finding to deal with this motion.

[126] Instead, the trial judge carefully analyzed the competing positions of the parties and exercised her discretion "somewhat reluctantly" to strike the jury notice. Her analysis would have been unnecessary had she accepted Kempf's argument that Nguyen was asking for declaratory relief.

[127] Although, at para. 23 of her reasons, the trial judge states that "the case involves 'in pith and substance' . . . declaratory relief which is not to be determined by a jury" (citation omitted), she nonetheless determined the case was not one in which she was required by statute to discharge the jury.

(2) The trial judge erred by holding that the "jury would be incapable of understanding the legal effect of the waiver even after careful instruction"

[128] This appears to be the main reason why my colleague would allow the appeal. She says that the case was a simple personal injury action and that the waiver was not a complicated document -- its limited application was "hardly beyond the ken of members of a jury".

[129] I do not agree with my colleague. The trial judge's concern was not the waiver alone, but the waiver in combination with the volenti defence. Because of that combination, this case was not a simple personal injury action. The trial judge was concerned that the jury would have been confused by the waiver and, because of its connection to the volenti defence, would have used it inappropriately in their deliberations despite a correct and strong charge. That was a reasonable concern.

[130] After the argument on the motion to strike the jury notice, three things were evident. First, for Nguyen, the volenti defence and the waiver were inextricably connected. He intended to argue that by signing the waiver, Kempf had assumed all risks of injury to himself. Second, although Nguyen conceded that the trial judge should decide the volenti defence after the [page271] jury had deliberated on liability, he refused to make the same concession for the waiver. That document, he contended, could be properly considered by the jury. Third, Nguyen's counsel intended to question Kempf and the other witnesses on what they understood by signing the waiver, what risks they understood they were agreeing to and what rights they understood they were giving up. In short, he wanted to use the waiver to support Nguyen's defences of volenti -- that Kempf had voluntarily assumed the risks of participating in the charity bike ride -- and on the appropriate standard of care.

[131] And the waiver itself was not a straightforward document. It was hard to read and understand. The trial judge found it "confusing" and so it was. The full waiver is attached as Appendix A. The pertinent portions provided:

THE BECEL HEART&STROKE RIDE FOR HEART WAIVER AGREEMENT, EVENT DAY JUNE 1, 2008

Please Read Carefully Release Waiver and Indemnity: The Becel Ride for Heart I Agree:

1. That all times during the Becel Heart&Stroke Ride for Heart my safety remains my sole responsibility and that I will observe all rules of the road; and

2. That I am aware of the risks inherent in participating in the Becel Heart&Stroke Ride for Heart and assume all such risks.

IN CONSIDERATION of the acceptance of my application and permission to participate as an entrant in the Becel Heart& Stroke Ride for Heart and post-event activities, I, for myself, my heirs, executors, administrators, successors and assigns, HEREBY RELEASE, WAIVE AND FOREVER DISCHARGE the Heart and Stroke Foundation of Ontario, Unilever Canada, PLH & Associates, the City of Toronto, The Toronto Police Services Board, The Toronto Police Service, The Members of the Toronto Police Service Auxiliary Program, the Chief of Police, the Toronto Transit Commission, Board of Governors of Exhibition Place, the Canadian National Exhibition Association, and all other associations, sanctioning bodies and sponsoring companies, and all their respective agents, officials, servants, claims, demands, damages, costs, expenses, actions and causes of action, whether in law or equity, in respect to death, injury, loss or damage to my person or property HOWSOEVER CAUSED, arising or to arise by reason of my participation in the said event, whether a spectator, participant, competitor or otherwise, whether prior to, during or subsequent to the event, AND NOTWITHSTANDING that any of the foregoing may have contributed to, or the injury or damage may have been occasioned by, the negligence of any the foresaid. I FURTHER HEREBY UNDERTAKE or HOLD AND SAVE HARMLESS and AGREE TO INDEMNIFY all of the aforesaid from and against any and all liability incurred by any or all of them as a result of, or in any way connected with, my participation in the said event. [page272]

BY SUBMITTING THIS ENTRY, I ACKNOWLEDGE HAVING READ, UNDERSTOOD AND AGREED TO THE ABOVE WAIVER, RELEASE AND INDEMNITY. I WARRANT that I am physically fit to participate in this event, and that my equipment is mechanically fit and suitable for its intended use in the Becel Heart&Stroke Ride for Heart.

[132] By signing the waiver, each cyclist releases the ride sponsor, Becel, and the charity, the Heart and Stroke Foundation. But some of the language in the waiver might suggest that each cyclist also releases other cyclists from liability. For example, each cyclist agrees that "my safety remains my sole responsibility" and "that I am aware of the risks inherent in participating in the Becel Heart & Stroke Ride for Heart and assume all such risks". And the consideration clause is similarly open to being interpreted as a broad release of liability.

[133] Thus, in discharging the jury, the trial judge wrote, at paras. 18, 21 and 24:

The jury will be asked to determine fault for the accident. The waiver will be an exhibit and witnesses will necessarily be questioned and cross examined on the document. In my view, there is a real danger that the jury, in answering the liability questions, will be confused by the contents of the waiver or perhaps use it inappropriately in their deliberations. For example, . . . because the waiver states that the Plaintiff will release all others from "all liability" arising from his participation in the Ride, there is a concern that the jury will misinterpret that document and conclude on the basis of the wording of the release that there could be no liability imposed on anyone, regardless of the findings of fact.

While I agree the determination of the application of volenti is a function for the Court, in my opinion, the evidence necessary to put that defence forward will be confusing to the jury whose duty it is to determine the question of liability.

[I]n order to determine the issue of liability, given the pleading of volenti, the jury will necessarily hear the evidence about the waiver. In my opinion, the inescapable reality of this is that the jury will be considering issues of contract which they cannot do. Even with a strong charge that instructs the jury on the proper use to make of the waiver evidence, in my mind, it would be impossible for the jury to use the evidence concerning the waiver in only a very narrow fashion and to ignore the rest of the evidence about it.

[134] The trial judge's reasoning is similar to that of the experienced trial judge in Cowles. In that case too, the trial judge had exercised her discretion to discharge the jury, in part because of the legal complexity of the case. She had concluded that the jury would find it difficult to keep separate various legal concepts, including strict liability, negligence and any applicable defences. On appeal, the defence argued she had erred in [page273] discharging the jury. One of the defence's arguments parallels my colleague's argument: any difficulty the jury would have had in applying the relevant legal concepts was not a proper basis to strike the jury notice. This court did not accept that argument. O'Connor A.C.J.O. wrote, at paras. 61 and 67:

While the trial judge expressed a concern about the complexity of the legal issues in her reasons, I read her comments in this regard as suggesting that the jury may have difficulty in applying the legal concepts as instructed by her, not in deciding what those concepts were. This, it seems to me, is apparent from her last comment -- "It may be difficult for a lay jury to keep the concepts separate."

In exercising her discretion to strike the jury notice in these cases, the trial judge considered the legal complexity of the cases as one of those complexities that would affect the task of the jury. She was entitled to do so.

[135] I accept that other trial judges may have taken a different view of the complexity in this case, as they may have of the complexity in Cowles. But as O'Connor A.C.J.O. said, at para. 42:

An appeal court should not interfere with the exercise of a trial court's discretion simply because it disagrees with the conclusion reached. That means an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be for that of the lower court.

[136] Thus, in Cowles, this court upheld the trial judge's discretion to discharge the jury, even though it determined, at para. 57, that the case fell "at the low end of the complexity scale that would permit a judge to dispense with a jury" and that it was "likely that some judges confronted with the same factors would exercise their discretion differently". I would do the same here.

(3) The trial judge should have adopted a "wait and see" approach

[137] My colleague says that it would have been preferable had the trial judge reserved her decision on the motion to strike the jury notice until the evidence had been completed. Perhaps, perhaps not. The trial judge considered whether she should "wait and see" and recognized that doing so is preferable in some cases, particularly those in which the evidence is expected to be complex. She decided not to do so in this case.

[138] "Wait and see" is not a rule of law; it is very much a matter of discretion. See Cowles, at para. 72. Were it a rule of law, trial judges would never discharge a jury before the evidence was completed. But as O'Connor A.C.J.O. said in Cowles, at para. 76, [page274] trial judges have the authority by statute, the rules and case law to dispense with a jury before a trial begins. Here, the trial judge determined not to "wait and see". That was her call to make. And it was a reasonable call. At least Epstein J.A. accepts that the trial judge's decision not to "wait and see" does not justify appellate intervention.

[139] The trial judge had a reasonable basis to discharge the jury. This court therefore has no basis to interfere with her decision. I would not give effect to this ground of appeal.

(ii) No new trial

[140] Epstein J.A. would order a new trial, which would take place, if at all, at least seven years after the accident. I do not think an order for a new trial is appropriate. Under s. 134(6) of the Courts of Justice Act, this court "shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred". One application of this statutory direction is the principle my colleague refers to, at para. 70 of her reasons, and which comes from the judgment of Cartwright J. in King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32, at p. 533 S.C.R.: a new trial should not be ordered in a case where the trial judge erred in discharging the jury "if the court were . . . satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge". See, also, Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641, [1992] O.J. No. 1725 (C.A.), at pp. 675-76 O.R.

[141] I would apply that principle here. Although I do not think the trial judge erred in discharging the jury, even if she did, a jury properly instructed and acting reasonably would also inevitably have found Nguyen liable for Kempf's injuries. Epstein J.A., however, says that such a jury could differ from the trial judge's assessment in three ways. I do not agree with any of her three points.

[142] First, my colleague says there was evidence supporting a finding of contributory negligence. She points in particular to what she says is evidence Kempf came unnecessarily close to Nguyen and evidence Kempf was half-wheeling when the collision occurred. I have dealt with the issue of contributory negligence earlier in these reasons. On my review of the record, there was simply no evidence to support a finding that Kempf was contributorily negligent. To repeat what I said earlier, the defence's own expert admitted Kempf was an acceptable distance apart from Nguyen and was not half-wheeling.

[143] Second, Epstein J.A. says a jury could assess the credibility of Kempf and Nguyen differently. Of course, in theory that [page275] is true. But even on a printed record, which is all an appellate court has, it is difficult to conceive that a reasonable jury could have reached a different result. In this court, Nguyen admitted the evidence supported a finding that he was negligent. The evidence at trial showed that he broke the rules of a group ride, made a manoeuvre at the critical time that defied common sense and, in the words of his own expert, was "reckless". By contrast, nothing in Kempf's evidence suggested he cycled carelessly, and his account was supported by the evidence of the other cyclists who testified.

[144] Third, Epstein J.A. says a jury could take a different approach to the standard of care. I do not see how they could if one accepts, as I do and as the trial judge did, that the ordinary negligence standard applies. Nguyen was an experienced cyclist. He broke rules of a group ride so basic and so grounded in common sense that even inexperienced cyclists would know them. He had to be aware that by breaking the basic rules of a group ride, he created an unreasonable risk of harm. That is what the trial judge found, and that is what Randell accepted. No reasonable jury could have concluded otherwise.

[145] Indeed, my view is that no reasonable jury could have reached a result different from the one the trial judge reached. In addition to what I have already said in response to my colleague, I rely on the following three points.

[146] First, the evidence of Kempf, whom the trial judge found to be a credible witness, was supported by the evidence of several other cyclists, who had seen the accident or its aftermath. In contrast, the evidence of Nguyen, whom the trial judge found to be an unimpressive witness, was not supported by a single other witness, and was contradicted by several of the witnesses.

[147] Second, Nguyen's explanation for his cycling defied common sense. He claimed that several riders ahead of him had slowed down, which had caused him to veer sharply to his left to avoid them. No witness had seen any cyclist ahead of Nguyen slowing down. And as the trial judge noted, veering to the left into a group of riders, including Kempf, instead of to the right, where there was plenty of open space, made no sense. The trial judge put it this way, at para. 67 of her reasons [ [2013] O.J. No. 1531, 2013 ONSC 1977 (S.C.J.):

The other perplexing element of the actions of the Defendant relates to the evasive action that he described as being necessary due to the alleged slowing down of riders directly in front of him. According to his version of events, as a result of the slowing of at least a couple of riders, the large fellow right in front of Nguyen moved off to the right, presumably to avoid striking the rider in front of him. One wonders why the Defendant did not make the [page276] same maneuver. He stated he knew there were riders to his left, yet he decided to move in that direction instead of off to the right as the rider in front of him did, apparently without incident. Again, this action does not make sense, given the situation as described by the Defendant.

[148] Third, Nguyen's own expert, Randell, acknowledged that Nguyen's cycling, as described by the other witnesses, including Kempf, had been "careless", "dangerous" and "reckless". Nguyen called Randell to testify about the conduct of cyclists on a group ride. On cross-examination by Kempf's counsel, Randell admitted that Nguyen had breached the rules of the road and had cycled recklessly:

Q. And at the moment in time when his front wheel is about even with the axle of the Nguyen vehicle -- for clarity in the record, when the Kempf front wheel is about even with the axle of the rear wheel of the Nguyen vehicle -- suddenly Mr. Nguyen, for no reason, no apparent reason, moves over two feet striking the Kempf vehicle. Can you make those assumptions?

A. Yes.

Q. He moves over two feet striking the Kempf vehicle.

Now, would it be fair to say that in this situation that the rider in the position of Mr. Nguyen, in this hypothetical, has breached the rule to maintain his line?

A. Yes, yeah.

Q. Inevitably, though, it breached the rule to maintain his pace?

A. Yeah, it probably would have slowed it, yeah.

Q. And he has failed to ride a smooth, predictable path, correct?

A. Yes, mm-hmm.

Q. And in terms of riding in a pack, the conduct I described, if you saw it, you'd agree with me, that was a major foul?

A. Yeah, I would say so, yes.

Q. And that kind of riding would put the safety, not only of the individuals involved, but of the whole rear part of the group in peril, correct?

A. Yeah.

Q. To make a sideways sudden movement of two feet without a very good reason would be a careless act, you'd agree?

A. Yeah.

Q. And if made without concern for those who might be approaching, it's fair to say that a movement of two feet or thereabouts to the left by a cyclist on the right edge of a pack would be an act that goes against all the rules we've spoken about governing good riding, correct?

A. Yes, yeah. [page277]

Q. It would go against the obligation to promote safety, to act responsibly, correct?

A. Yeah.

Q. And you mentioned it would be a careless act. Do you agree with me that it would also be an act that would be dangerous, correct?

A. It would be dangerous, yeah.

Q. An act that would be reckless?

A. Reckless, sure. I don't understand the definition, but . . . Can you define "reckless"?

B. An act taken without due regard for the danger that it might expose others to.

A. Yeah.

Q. So it would be reckless?

A. Yeah.

[149] In the light of these considerations, it is hard to conceive that a reasonable jury could have come to a different result. It is thus not in the interests of justice to order a new trial.

C. Conclusion

[150] I would dismiss this appeal with costs fixed in the agreed-on amount of $17,500, inclusive of disbursements and applicable taxes.

Appeal allowed.

APPENDIX A: WAIVER AGREEMENT

THE BECEL HEART&STROKE RIDE FOR HEART WAIVER AGREEMENT, EVENT DAY JUNE 1, 2008

Please Read Carefully Release Waiver and Indemnity: The Becel Ride for Heart I Agree:

1. That all times during the Becel Heart&Stroke Ride for Heart my safety remains my sole responsibility and that I will observe all rules of the road; and

2. That I will make best efforts to wear an approved helmet

while riding in the Becel Heart&Stroke Ride for Heart; and if

I am under the age of 18 I must wear an approved helmet; and

3. That I will discontinue riding in the Becel Heart&Stroke Ride for Heart if it is determined by medical personnel at any time that I am physically unfit to continue; and

4. That I am aware of the risks inherent in participating in the Becel Heart&Stroke Ride for Heart and assume all such risks. [page278]

5. By participating in the Becel Heart&Stroke Ride for Heart, I consent the use of my photograph, without compensation, in any future publicity carried out by the Heart and Stroke Foundation.

IN CONSIDERATION of the acceptance of my application and permission to participate as an entrant in the Becel Heart& Stroke Ride for Heart and post-event activities, I, for myself, my heirs, executors, administrators, successors and assigns, HEREBY RELEASE, WAIVE AND FOREVER DISCHARGE the Heart and Stroke Foundation of Ontario, Unilever Canada, PLH & Associates, the City of Toronto, The Toronto Police Services Board, The Toronto Police Service, The Members of the Toronto Police Service Auxiliary Program, the Chief of Police, the Toronto Transit Commission, Board of Governors of Exhibition Place, the Canadian National Exhibition Association, and all other associations, sanctioning bodies and sponsoring companies, and all their respective agents, officials, servants, claims, demands, damages, costs, expenses, actions and causes of action, whether in law or equity, in respect to death, injury, loss or damage to my person or property HOWSOEVER CAUSED, arising or to arise by reason of my participation in the said event, whether a spectator, participant, competitor or otherwise, whether prior to, during or subsequent to the event, AND NOTWITHSTANDING that any of the foregoing may have contributed to, or the injury or damage may have been occasioned by, the negligence of any the foresaid. I FURTHER HEREBY UNDERTAKE or HOLD AND SAVE HARMLESS and AGREE TO INDEMNIFY all of the aforesaid from and against any and all liability incurred by any or all of them as a result of, or in any way connected with, my participation in the said event.

BY SUBMITTING THIS ENTRY, I ACKNOWLEDGE HAVING READ, UNDERSTOOD AND AGREED TO THE ABOVE WAIVER, RELEASE AND INDEMNITY. I WARRANT that I am physically fit to participate in this event, and that my equipment is mechanically fit and suitable for its intended use in the Becel Heart&Stroke Ride for Heart.

Print Full Name of Participant:

Date:

(Parent/Guardian Name required if participant is under 18 years)

Notes

[^1]: Nguyen abandoned the volenti plea, and further amended his statement of defence, at the opening of the case for the defence. In fairness to the trial judge, as the volenti plea was not abandoned until after Kempf was cross-examined on the waiver, adopting a wait-and-see approach would not have eliminated all of her concerns about whether trial by jury was appropriate.

[^2]: Here, arguably, it did not materialize given the withdrawal of the volenti defence.

[^3]: The defendant's expert, Andrew Randell, acknowledged that these rules are "pretty standard", "derived from common sense" and have "evolved over a long period of time".

[^4]: Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at p. 625 O.R.

[^5]: Although Nguyen had pleaded volenti, he abandoned it at the opening of the defence's case.

End of Document