ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51602
DATE: 2012/04/18
BETWEEN:
VASILIKI RAPPOS
Plaintiff (Moving Party)
– and –
THE CORPORATION OF THE CAVE INC. LAFLÈCHE c.o.b. as “LAFLÈCHE ADVENTURE CAVE & AERIAL PARK”
Defendant (Responding Party)
M. James McMahon, for the Plaintiff (Moving Party)
None Appeared, for the Defendant (Responding Party)
HEARD: March 1, 2012 (Ottawa)
REASONS FOR DECISION
MCmunagle j.
[ 1 ] This is a motion under Rule 19.05 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, for Default Judgment brought by the Plaintiff, Vasiliki Rappos. She is represented by Mr. James McMahon, whose submissions were delivered to me on March 1, 2012, both in writing and orally. No one appeared on behalf of the Defendant, The Corporation of the Cave Inc. Laflèche c.o.b. as “Laflèche Adventure Cave & Aerial Park” (“Laflèche”).
[ 2 ] The Affidavit of Service of the Process Server, Mr. Russell Crawford, establishes that the Defendant Corporation was served with the Statement of Claim on June 23, 2011 and was noted in default on August 16, 2011.
[ 3 ] Counsel for the Plaintiff placed the following materials before this Court in support of this motion for Default Judgment:
- A Motion Record containing the Affidavit of Wynne Bischoff, legal assistant with the Law Firm of McMahon and McMahon LLP. The Affidavit of Ms. Bischoff is uncontroversial in that its function was to file various business records of a number of parties that are otherwise admissible under s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 . Said documents included the following:
(a) Statement of Claim;
(b) Affidavit of Service of Russell Crawford’s sworn August 4, 2011;
(c) requisition to note the Defendant in default on the 54 th day following service having been properly affected;
(d) Patient Chart of the Plaintiff for treatment delivered at the Gatineau Memorial Hospital in Wakefield, Quebec;
(e) Patient Chart of the Family Doctor, Dr. Shawn O’Donnell;
(f) download from the website for the Defendant’s business previewing and ultimately advertising their services to the public;
(g) download of the 2009 Annual Report for the Defendant Corporation; and
(h) download of the 2010 Annual Report of the Defendant Corporation.
[ 4 ] Taking these documents out of order, I note the continuing employment in the management team of one “Marianne Loyer”, who is the same individual to whom the Statement of Claim was served as depicted in items (g) and (h).
[ 5 ] I also note the following facts from these two Annual Corporate Reports, which are important to my later comments concerning the assumption of jurisdiction by this Court, namely, the fact that the Defendant corporation enjoyed significant revenues in the year in which the subject accident occurred, and further that according to the financial statement of the said Defendant, monies were allocated for the maintenance of insurance protection.
[ 6 ] The Plaintiff’s Motion Record also included the factual Affidavit of the Plaintiff, Vasiliki Rappos, sworn on February 23, 2012. In addition to her factual portion of her detailed Affidavit which described in depth the nature in which the contract between the parties was formed, and the details of the accident, the details of the Plaintiff’s recovery, the details of her financial losses, there were further additional Exhibits filed in corroboration of both the Plaintiff’s deposed allegations and the factual and legal allegations as set out in the Statement of Claim. Those Exhibits were as follows:
(1) Exhibit A – Tax Return Summaries of the Plaintiff for the years 2008, 2009 and 2010.
(2) Exhibit B – The Patient Chart dealing with the Plaintiff’s treatment while a patient (both in‑patient and out‑patient) of the Ottawa Hospital – General Campus.
(3) Exhibit C – Contains the Treatment Chart of the rehabilitation unit of the Ottawa Hospital – Riverside Campus.
[ 7 ] All these Exhibits are clearly business records.
[ 8 ] Counsel for the Plaintiff further filed a detailed Factum and Brief of Authorities, which carefully addressed all of the Rules of Civil Procedure at play in this motion for Default Judgment, as well as spanned important and relevant areas of law that could and did contribute to my reasons in this decision, as will be discussed shortly.
[ 9 ] Lastly, I was provided with a further photocopy of a case previously decided by my colleague, Madam Justice Cathy Aitken, that guided me in resolving a concern I had in respect of the exculpatory clauses, namely the case of Fraser v. Knox , 1998 Carswell 4164, [1998] O.J. No. 4379 , which I will discuss shortly.
The Facts
[ 10 ] In July 2009, the Plaintiff, Vasiliki Rappos, went searching on the Internet in order to find an Aerial Park where she and her fiancé could enjoy a local aerial obstacle and ziplining course.
[ 11 ] The Plaintiff’s allegations are taken to be admitted in view of the fact that the Defendant never responded to the Statement of Claim or otherwise communicated, participated in any way shape or form in this lawsuit. As stated previously, I am at a complete loss to understand why this is so.
[ 12 ] On his own initiative, counsel for the Plaintiff embarked on what can only be described as a meticulous review of the allegations of fact in spite of them being deemed as proven under Rule 19 of the Rules of Civil Procedure , in order to connect the Plaintiff’s allegations to the law that I have no hesitation in applying in the case at bar.
[ 13 ] This Court has jurisdiction because of the following facts:
Vasiliki Rappos was capable from her home in Ottawa in locating the Defendant’s business on the Internet. I find that given its proximity to Ottawa, that in spite of its location in the Province of Quebec, it is a business that intended to attract Ontario clientele. It is a point to which I take specific notice of that given that the population in the immediate area around the park in Western Quebec is approximately 150,000 people, whereas the Ottawa area directly adjacent comprises almost 1 million inhabitants. It is simply not reasonable or logical in the circumstances to come to any other conclusion other than the Defendant’s business is connected to and derives the majority of its benefit from Ontario residents.
Ms. Rappos’ alleges that she concluded a contract with the Defendant from her home in Ottawa. Again, while such allegation is deemed proven by operation of Rule 19, of the Rules of Civil Procedure . I was invited by the Plaintiff’s counsel from the outset of this matter to take an extremely close view of the evidence, given the seriousness of the matter as a motion for Default Judgment, as if I were applying the rules arising under Rule 20 Summary Judgment.
[ 14 ] After having received evidence and legal argument from the Plaintiff over approximately two hours, in addition to my own review of all of the materials filed with the court prior to the Plaintiff’s attendance on March 1, 2012, I have absolutely no difficulty in concluding that the Plaintiff indeed put her best foot forward in all aspects of her case leaving me with absolutely no questions that would later require the trial of an issue. As this would have further been my right to direct a trial under Rule 19 of the Rules of Civil Procedure , were I not in fact persuaded on any particular point. I was pleased to receive the elaborate efforts of the Plaintiff’s counsel to guide the court’s analysis and thus remove any necessity for such further investigation by this Court or any other court.
[ 15 ] Under the Service Requirements imposed under Rule 17.02 of the Rules of Civil Procedure , I have no difficulty in concluding that jurisdiction simpliciter is made out in this case. At the very minimum, I was capable of so finding based upon my finding that a contract was made on the facts in the Province of Ontario, thus satisfying the specific sub‑rule 17.02(f)(i) of the Rules of Civil Procedure .
[ 16 ] In spite of my earlier finding on this point, counsel for the Plaintiff directed the Court’s attention to the historical development of the Doctrine of Forum Convenience and the post‑ Muscutt world, which introduced a more predictable judicial analytical tool arising from the eight‑part “Real and Substantial Connection Test” applied firstly in that case.
[ 17 ] Counsel is to be noted as having further assisted this Court in having applied the refinements offered to the Muscutt case see ( Muscutt v. Courcelles (2002), 2002 44957 (ON CA) , 60 O.R. (3d) 20 (C.A.) by reviewing the following the additional citations: Black v. Breeden (2009), 2009 14041 (ON SC) , 309 D.L.R. (4th) 708 (Ont. S.C.); and, Van Breda v. Village Resorts Ltd . (“ Van Breda ”), 2010 ONCA 84 , 98 O.R. (3d) 721.
[ 18 ] Even in the absence of a contract having been found to have been made in Ontario by this Court, I would have no difficulty in applying the Muscutt test or its refinements flowing from Van Breda, supra, to apply the law and jurisdiction of Ontario to the facts at bar.
[ 19 ] The facts as proven establish the close connection of the Defendant’s business to this jurisdiction both through their manner and style of Internet advertising which essentially seeks business from Ontario residents. As noted previously, the very large discrepancy in populations between Gatineau and Western Quebec versus Ottawa and Eastern Ontario leaves no other reasonable conclusion. The telephone creation of the contract with the Plaintiff solidifies this point.
[ 20 ] The Defendant further clearly maintains insurance protection for itself, which suggests that they are not only capable of responding to actions brought against them for personal injuries sustained by their customers while on their premises, but further, by virtue of the apparent risk involved in the sponsored activities which they invite customers to participate in on their property. They must, in fact, be seen to anticipate their involvement in personal injury litigation.
[ 21 ] More specifically, the Defendant has included in their business model a mechanism by which to protect themselves, that is, insurance.
[ 22 ] As a brief aside connected to this point, counsel for the Plaintiff was specifically queried on the facts and the evidence surrounding the exculpatory clauses and the impact of the effort taken by the Defendant to oblige the Plaintiff to apparently sign such a Liability Release Form.
[ 23 ] This Court was further directed to the decision of my colleague Aitken J. in the case of Fraser v. Knox , supra . This decision allows me to conclude on the facts of the case at bar that the efforts of the Defendant, Laflèche, to force a signature on a document that was never specifically identified to the Plaintiff, and was further not provided in the English language when this was the only language spoken by Ms. Rappos, and that was only introduced after the contract had been previously negotiated by telephone, would not be upheld to relieve the Defendant from its contractual responsibilities to the Plaintiff.
[ 24 ] I am further inclined to find at this juncture that the contract was breached by the Defendant in any event and would, for those reasons alone, not permit them to hide behind such a document regardless of the timing of its execution. The indicia of those contractual breaches are as follows:
The Defendant represented in its webpage advertising the following ... “an experienced instructor will accompany you from start to finish so you can get the most out of the trail and its mysteries.”
[ 25 ] I find on the facts as proved that no one accompanied the Plaintiff on the subject zipline course. Had they done so, the very serious accident which occurred would likely have been avoided.
The Defendant further represented... “clasps, harnesses and gloves will be provided and you will receive the necessary training to ensure your safety along the trail.”
[ 26 ] I further have no hesitation in finding that the so‑called training provided to the Plaintiff was rudimentary at best, if at all. More importantly, I further find that the gloves supplied to the Plaintiff by the Defendant were in a state of utter disrepair that only worsened as she travelled through the areal park over the course of approximately three hours. I further find that by the very nature of an obstacle course among the treetops, it was impossible for the Plaintiff to extricate herself from the course without completing it. Due to the deteriorated nature of the gloves supplied to her, the likelihood of her injuries was thus a practical certainty. The only possible way that this accident could have been prevented once Ms. Rappos was set in motion on the course would have been for an actual employee of the Defendant to have accompanied her on the course, in keeping with their contractual representations. Then and only then could steps have been undertaken to resupply the Plaintiff with the proper gloves so that she could control her speed on the subject zipline or be given other support from the staff. The Defendant utterly failed to meet its basic contractual obligations to the Plaintiff and should be thus held fully accountable concurrently for all consequences of their negligence which was clearly and properly foreseeable as this was, from these breaches. I would accordingly also find the Defendant completely liable for the Plaintiff’s injuries. I find that the Plaintiff’s misrepresentations that it would: a) train the Defendant; b) provide the Defendant with proper equipment; and c) guide the Defendant all along the way are a complete and utter falsehood. The Court therefore finds that, on the totality of the extensive and detailed written record, as well as the excellent submissions of counsel that:
(a) the Defendant has breached the contract between the parties;
(b) The Defendant’s conduct, on that day, is the clearest demonstration of negligence. I further make a specific finding of gross negligence exhibited by the Defendant. This case could have been catastrophic, or even worse, deadly.
[ 27 ] I note from the evidence that the Plaintiff had but mere minutes of instructions before departing on the course. She was also given gloves in, at best, a poor state of repair. Furthermore, there were no staff members along the course on that day. As I also note from the evidence that the Plaintiff had to wait approximately 15 minutes, having severely damaged her ankle and sustained other injuries, before any member of the staff of the Defendant came to render any assistance.
Damages
[ 28 ] The Plaintiff’s income losses were painstakingly elucidated both at paras. 14 through 17 of her affidavit, as well as supported with the production of her tax return summaries found at Exhibit A to her Affidavit.
[ 29 ] This was a hard‑working woman who clearly took steps at mitigating her losses immediately by making an application for Employment Insurance Benefits, while she recovered from her fractures to her left ankle area. As she held down several jobs pre‑accident, it was slightly unclear as to the exact loss of income suffered. Rather than accept the exact numerical loss offered by the Plaintiff of $17,391.12 as summarized at para. 17 of her Affidavit, I shall apply a contingency discount of 25% of this loss in order to establish a firm income figure; overlap between jobs loss earnings can be ruled out. Accordingly, I would award the Plaintiff the sum of $13,045.00 for her loss of income.
[ 30 ] There is no claim for future income losses.
General Damages
[ 31 ] Counsel for the Plaintiff has lead evidence from not only the Plaintiff, but from the following sources in support of her position on general damages:
(1) The Chart of the Gatineau Memorial Hospital who first received the Plaintiff following the accident.
(2) The Chart of the Ottawa Hospital – General Campus where she was transferred to for surgical interventions (of which there were two) and several months of outpatient aftercare which did not conclude until November 2009.
(3) The Chart of the Ottawa Hospital – Riverside Campus where Ms. Rappos received rehabilitation therapy from August 28, 2009 to approximately November 2009, at an average frequency of two visits per week.
(4) Lastly, I have the Chart of the family doctor, Dr. Shawn O’Donnell, who also saw Ms. Rappos even after her discharge from rehab for assorted issues of pain, weight gain associated to her several months of immobility and her struggle to cope with the rigors of her having returned to her very physically demanding workplaces.
[ 32 ] I was further favoured with the decision of my colleague, Justice Colin McKinnon in the matter of Cerilli v. Ottawa (City) 2008 ONCA 28 , 41 M.P.L. R. (4th) 1, which bears a significant resemblance to the injuries and subsequent healing that both Ms. Rappos and the plaintiff Cerilli underwent in her case. In fact, both victims endured what can only be described as a shattering of the ankle area to each of their bodies. Both endured excruciating pain and the torment of surgical reconstructions and both in actual fact, attended the same rehabilitation program for approximately the same duration.
[ 33 ] Mr. McMahon submitted that the range of general damages for similar cases lay between approximately $65,000 and $100,000. While I find no controversy in such range, I feel that I am indeed guided by my colleague, McKinnon J.’s highly reasoned award to Ms. Cerilli, as I also find that the suffering of Ms. Rappos was both significant and prolonged.
[ 34 ] I am also inclined to follow my fellow judge’s evaluation, although because of some further medical complications I perceive Ms. Cerilli as having suffered, these same complications did not arise in the case at bar. I feel that it is only appropriate to award slightly less to the Plaintiff, Ms. Rappos. Accordingly, I award to her the sum of $65,000.00 for general damages. Pre‑judgment interest is to be payable to the Plaintiff on all of her losses at the rate of 5% per annum from the date of loss.
[ 35 ] The Plaintiff is entitled to her costs for her counsel’s time today. I accordingly summarize my award as follows: Judgment to go in favour of the Plaintiff for general damages in the sum of $65,000.00; for special damages the sum of $13,045.00, plus pre‑judgment interest of $10,145.06 (31.5 months at 5%), costs (counsel fee for 1 day) $3,000 inclusive of HST.
Mr. Justice John A. McMunagle
Released: April 18, 2012
COURT FILE NO.: 11-51602
DATE: 2012/04/18
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
VASILIKI RAPPOS Plaintiff (Moving Party)
– and –
THE CORPORATION OF THE CAVE INC. LAFLÈCHE c.o.b. as “LAFLÈCHE ADVENTURE CAVE & AERIAL PARK” Defendant (Responding Party)
REASONS FOR DECISION
McMunagle J.
Released: April 18, 2012