Court of Appeal for Ontario

Date: September 12, 2019 Docket: C66502

Panel: Hoy A.C.J.O., Nordheimer and Jamal JJ.A.

Between

Fatemeh Hosseinkhani, Manuchehr Rasouli, Mohamed Reza Rasouli and Behnoush Rasouli

Plaintiffs (Appellants)

and

QK Fitness Inc., 2083053 Ontario Ltd. and Helen Doe

Defendants (Respondents)

Counsel

George Pappas and Matthew Wasserman, for the appellants

C. Michael J. Kealy, for the respondents

Heard and released orally: September 10, 2019

On appeal from: the order of Justice Robert Charney of the Superior Court of Justice, dated January 3, 2019 with reasons reported at 2019 ONSC 70

Reasons for Decision

[1] The appellants appeal from the summary judgment granted by the motion judge that dismissed their claims.

[2] It is not, in our view, necessary to go into all of the details regarding the background to this matter in order to resolve this appeal. The action arises out of a claim for personal injuries suffered by Ms. Hosseinkhani while she was participating in a fitness class at the premises of QK Fitness.

[3] During the course of the fitness class, Ms. Hosseinkhani stepped on a round dumbbell that was part of the equipment used in the class. She fell and was injured. Ms. Hosseinkhani then sued the respondents for negligence.

[4] The motion judge reviewed the matter in detailed reasons. He concluded that the respondents could not rely on an exclusion of liability clause that was contained in the membership agreement. However, the motion judge did find, on the factual record before him, that the appellants could not establish that the respondents were negligent in any way. In particular, the motion judge found that there was no evidence that the round dumbbell posed an unusual hazard and that neither the dumbbells nor the exercises themselves were inherently hazardous. The motion judge also found that the fact that a round dumbbell might roll was an obvious risk. Indeed, Ms. Hosseinkhani admitted that no one had to explain to her that round dumbbells placed on their side might roll. Consequently, the motion judge granted summary judgment dismissing the appellants' claims. Contrary to the appellants' submissions, the motion judge considered whether a duty to warn was required in the particular factual context and found that it was not.

[5] We are not persuaded that there is any basis to interfere with the motion judge's findings of fact and mixed fact and law.

[6] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed in the amount of $5,000 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

I.V.B. Nordheimer J.A.

M. Jamal J.A.