Dyck v. Manitoba Snowmobile Association, 1985 CanLII 27 (SCC), [1985] 1 SCR 589
Ronald James Dyck Appellant;
and
Manitoba Snowmobile Association Inc. and Reginald Wood Respondents.
1985: March 28, 29; 1985: May 23.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for manitoba
Contracts ‑‑ Waiver clause ‑‑ Race sanctioned by Association ‑‑ Association's disclaimers of liability in rules and application forms known to participant ‑‑ Accident caused by signal man on track ‑‑ Negligence alleged and damages sought ‑‑ Whether or not waiver clause effective ‑‑ Whether or not fundamental breach ‑‑ Whether or not unconscionable transaction ‑‑ Whether or not against public policy.
This action in negligence to recover damages arose out of an accident that occurred during a snowmobile race sanctioned by respondent Association. Appellant collided with respondent Wood, who signalled the end of the race as usual by moving onto mid‑track. Appellant subsequently struck a wall. The Association's rules and the competition membership application purportedly released the Association from liability, although they did not expressly refer to injuries resulting from the negligence of the Association or its servants. The signed entry form for the race, however, included a waiver clause that referred to negligence. The action was dismissed both at trial and on appeal.
Held: The appeal should be dismissed.
The waiver clause in the race entry form, given the context in which it was signed, exonerated the Association and Wood (for whom the Association had acted as agent) from liability. The parties clearly had a release in mind, even through the clause was worded in the form of an indemnity. The effect of the clause could not be avoided on the grounds of its being unfair, unreasonable and inapplicable to the accident. Signalling from mid‑track was not so unusual as to make it fall outside the contemplation of the clause. Appellant knew of the dangers involved and voluntarily participated without social or economic pressure being exerted on him by the Association. The clause was, therefore, reasonable in the circumstances, so the doctrine of fundamental breach, even if extended beyond questions of construction, need not be examined. Nor could the contract be declared unenforceable because of one party's having a stronger bargaining position than the other, or indeed, on any ground of public policy.
APPEAL from a judgment of the Manitoba Court of Appeal (1982), 136 D.L.R. (3d) 11, 21 C.C.L.T. 38, 11 Man. R. (2d) 308, dismissing an appeal from a judgment of Kroft J. Appeal dismissed.
A. H. Dalmyn, for the appellant.
B. Patrick Metcalfe and David J. Sissons, for the respondents.
The following is the judgment delivered by
1.
Introduction
The Court‑‑This is an appeal from the Court of Appeal of Manitoba in which it dismissed an appeal from a judgment of Kroft J. in which he dismissed the appellant's action in negligence against both respondents to recover damages for injuries suffered by the appellant in the course of a snowmobile race.
2.
Background
The facts are fully set forth in the judgments in the courts below and require only a brief summary here. The appellant, Dyck, on February 23, 1975, suffered serious injuries while taking part in a snowmobile race at Beausejour, Manitoba sanctioned by the respondent Snowmobile Association. Dyck was a member of the Association whose rules, which Dyck had read, purported to release the Association from all liability for injuries suffered by entrants in races sanctioned by it. The competition membership application signed by Dyck also purported to release the Association from such liability. These documents made no express mention of injuries resulting from the negligence of the Association or its servants but the entry form for the race, also signed by Dyck, espressly set forth his agreement to save harmless and keep indemnified the Association, its organizers, agents, officials, servants and representatives from all liability, howsoever caused, in connection with taking part in the race "notwithstanding that the same may have been contributed to or occasioned by [their] negligence".
The accident occurred when Dyck's snowmobile collided with the respondent Wood who was responsible for signalling the finish of the race. In doing this, Wood, following his usual practice, moved well onto the track to signal the driver, being around the middle of the track when Dyck collided with him. This caused Dyck to strike the outside wall of the track from which he suffered the injuries that gave rise to this action.
Kroft J. found that Dyck and Wood were both negligent and would have found Wood and, through the principle of vicarious liability, the Association responsible for one‑third of the damages resulting to Dyck from his injuries. He, however, excluded the respondent Association from liability on the basis of the waiver of liability clause in the entry form of which, he found, Dyck had full notice. On the evidence, he further held that the clause applied to release Wood as well as the Association from liability.
The Court of Appeal disagreed with Kroft J. regarding responsibility for the accident, holding that the accident resulted solely from the negligence of Wood. It, however, dismissed the appeal because of the operation of the waiver clause in the entry form Dyck had signed. It agreed with Kroft J. that this clause applied to Wood as well as to the Association.
Analysis
We agree for the reasons given by Mr. Justice Huband on behalf of the Court of Appeal that, in the context in which it was signed, the waiver clause in the entry form exonerated the Association from liability for the accident, and that Wood is also exonerated because the Association was acting as his agent in obtaining the waiver.
On this appeal it was argued on behalf of Dyck that the waiver clause was worded in the form of an indemnity rather than a release. However, the context clearly reveals that a release is what the parties had in mind. Indeed at one point it is referred to in the entry form as a waiver of claim and the earlier waiver clauses underline that this was the parties' intention.
Counsel for the appellant also attempted to avoid the effect of the waiver clause on various grounds ultimately based on the thesis that it was unfair, unreasonable and inapplicable to the accident. One such ground was that the conduct of Wood in standing where he did on the track constituted negligence of a kind that was radically different from anything reasonable men could have contemplated. But surely this was precisely the type of negligence contemplated by the exclusion clause. This is underscored by the evidence which reveals that Wood's actions, though found to be negligent by the trial judge and the Court of Appeal, are not regarded as unusual by persons involved in snowmobile racing.
The appellant's argument on fundamental breach, however, went beyond one of mere construction of the contract and rather merged with his thesis that the waiver clause was unreasonable. Whether the doctrine of fundamental breach is confined to questions of construction, or whether it involves the power of a court to declare that certain contractual arrangements are so manifestly unfair and unreasonable as to be unenforceable, it is unnecessary to consider. The central fact is that a waiver clause of the kind in issue in the present case does not appear to be unreasonable. The appellant knew, or should have known, that snowmobile racing is a dangerous sport and he voluntarily participated in it. Though the Association had the control of snowmobile racing, this is hardly akin to the situations where the doctrine of fundamental breach has seen its widest extension, namely, where a commercial firm supplies to the public ordinary items of trade and from a commercial point of view dictates the terms on which consumers are to obtain these goods. The Association here is a voluntary body that organizes for the benefit of its members and the public a sporting activity that carries with it well‑known and obvious dangers.
Nor does the relationship of Dyck and the Association fall within the class of cases, notable among which are contracts made on dissolution of marriage, where the differences between the bargaining strength of the parties is such that the courts will hold a transaction unconscionable and so unenforceable where the stronger party has taken unfair advantage of the other. The appellant freely joined and participated in activities organized by an association. The Association neither exercised pressure on the appellant nor unfairly took advantage of social or economic pressures on him to get him to participate in its activities. As already mentioned, the races carried with them inherent dangers of which the appellant should have been aware and it was in no way unreasonable for an organization like the Association to seek to protect itself against liability from suit for damages arising out of such dangers. It follows from this that there are no grounds of public policy on which the waiver clause should be struck down, an issue also raised on behalf of the appellant.
In light of the foregoing, it becomes unnecessary to discuss the issues of negligence and contributory negligence or other questions raised by the parties. The appeal is dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Walsh, Micay & Company, Winnipeg.
Solicitors for the respondents: D’Arcy and Deacon, Winnipeg.
