COURT FILE AND PARTIES

COURT FILE NO.: CV-09-375701

DATE: 20130221

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rolf Kempf, Angela Kempf, Severin Kempf (a minor) and Raphael Kempf (a minor), by their Litigation Guardian, Angela Kempf, Plaintiffs

AND:

Thi Thanh Nguyen, Defendant

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Patrick J. Monaghan, Counsel for the Plaintiffs

Doug Smith, Counsel for the Defendant

HEARD: February 4, 2013

RULING

[1] This is an action for damages brought by the Plaintiff Rolf Kempf as a result of a bicycle accident that occurred June 1, 2008 while the parties were participating in a bicycle race. It is alleged in the Statement of Claim that the Plaintiff and the Defendant were riding their bicycles on the Don Valley Parkway in an organized ride for charity when the Defendant struck the tire of the Plaintiff bicycle, causing the Plaintiff to fall off his bicycle and sustain injuries.

[2] The original Statement of Defence denied liability and pleaded that the Plaintiff voluntarily assumed all risks entailed with participating in the organized race. There was no reference to signing any waiver. A jury notice was delivered by the former counsel for the Defendant in August 2009.

[3] The action was originally fixed for trial a year ago, but was adjourned due to illness of the Plaintiff. At some point, counsel for the Defendant changed. A proposed amended Statement of Defence was delivered in the late fall of 2012.

[4] This matter was fixed for trial with a jury commencing February 4, 2013. Damages were settled and the issue of liability remained for trial. I was advised that counsel agreed to an order granting leave to the Defendant to serve and file the amended Statement of Defence and to the Plaintiff to serve and file a Reply and I endorsed the record to that effect. Counsel informed me that there were some preliminary matters to be dealt with prior to commencing the trial. Consequently, a jury was selected and I adjourned court until the following day so I could deal with the various matters.

[5] Counsel for the Plaintiff brought a motion to strike the jury notice, which was opposed by the solicitor for the Defendant. There was also a motion by the Plaintiff to exclude an expert opinion that had been obtained by the solicitor for the Defendant.

[6] Since the issue of whether the trial would proceed with a jury was of paramount importance, I heard argument on that motion and advised counsel that I would deliver my decision the following morning. These are my reasons.

I. Position of the Plaintiffs

[7] Mr. Monaghan submits that the amended Statement of Defence in essence changes the nature of the case, making it inappropriate to be tried by a jury. The new defence pleads the doctrine of volenti non fit injuria and also pleads that by signing the waiver, the Plaintiff assumed all the risks inherent in participating in the Ride and therefore his action is barred. Further, it is noted that paragraph 12 of the amended Statement of Defence pleads that the Defendant owed no duty of care to the Plaintiff and that any actions the Plaintiff alleges he took “were taken in the agony of collision with another participants in the Ride.”

[8] It is the position of the Plaintiff that the issue of whether by signing the waiver the Plaintiff entered into a contract and released any rights he had and agreed not to sue is a question of law akin to a request for a declaration. It is submitted that the jury would have to interpret the waiver and determine its effect and this is not something the jury ought to be doing. This amounts to deciding legal issues and not determining the facts. In a nutshell, Mr. Monaghan submits that by arguing volenti and relying on the waiver, the solicitor for the Defendant has taken the case out of the realm of determining whether or not the Defendant was negligent and placed the jury in the position of having to decide whether the waiver constitutes an agreement that is enforceable and if so, to determine the terms.

[9] Further, Mr. Monaghan argues that even if the determination of volenti is made by me after the jury decides liability, he is prejudiced in the presentation of his case because it is unclear what evidence the jury ought to hear about the waiver and what would be inappropriate and they could easily be confused about the significance of the waiver even in the face of an instruction from me.

II. Position of the Defendant

[10] Mr. Smith agrees that whether volenti applies is an issue to be determined by the court after the jury verdict on liability. He submits that it is not necessary for the jury to decide what the legal effect of signing the waiver is; it is simply evidence that goes to the issue of standard of care and the potential finding of contributory negligence on the Plaintiff. It is the intention of Mr. Smith to cross-examine the Plaintiff on the waiver and his understanding of the risks inherent in participating in the ride. However, by urging the jury to take into consideration the fact that the Plaintiff signed the waiver does not amount to asking them to decide a question of law; it is simply some evidence that they can use in their deliberations when deciding the issue of liability.

[11] In the alternative, Mr. Smith submits that the Plaintiff’s motion is premature and ought to be adjourned to be renewed if the evidence becomes problematic.

III. Analysis

[12] 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 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.

[13] While section 108(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 makes it clear that a claim for declaratory relief cannot be tried with a jury and Mr. Monaghan 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. It is often the case that juries hear the evidence, make their findings of fact and following that determination, the court makes rulings on matters of law. An example of this is when the court hears a motion on a threshold defence following delivery of the jury verdict or when a court makes a determination of whether a Plaintiff meets the definition of catastrophic for the purposes of entitlement to Statutory Accident Benefits.

[14] Often, there is an agreement between counsel as there was in Gallant v. Fanshawe College of Applied Arts and Technology, [2009] O.J. No. 3977 that the jury make findings of negligence following which the court would rule on the validity of a waiver or an insurance policy. That is not the case before me. While both sides agree that the waiver was signed, the solicitor for the Plaintiff is content to leave it at that but the solicitor for the Defendant intends to go further: to question the Plaintiff and perhaps other witnesses about their understanding of what signing the waiver meant, what their expectations were about the circumstances of the ride, along with other matters arising from the contents of the waiver. I say this not to be critical of Mr. Smith, because he is entitled to raise every defence available to his client and to argue the case as he sees fit.

[15] 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.

[16] The Defendant, when it amended its defence, put into issue the signing of the waiver by the Plaintiff. While Mr. Smith argues that the existence of the waiver is simply a piece of evidence the jury may consider when determining the issue of liability, I do not accept this submission. There are practical difficulties with this argument.

[17] The waiver states as follows: “I agree…that at all times my safety remains my sole responsibility…that I am aware of the risks inherent in participating in the Ride and assume all such risks…I release, waive and forever discharge the Heart and Stroke Foundation…and all other associations…from all causes of action in respect to injury, loss or damage to my person by reason of my participation in the said event…I further hereby undertake to hold and save harmless…from any and all liability incurred as a result of or in any way connected with my participation in the said event…”

[18] 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 the Plaintiff 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 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.

[19] There is an additional concern. The Defendant has pleaded the volenti defence, which, if successful, precludes any recovery by the Plaintiff. As Justice Wilson stated in Crocker v. Sundance Northwest Resorts Ltd., 1988 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.”

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

[21] 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 the Plaintiff 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 the Defendant.

[22] The case before me can be distinguished from Harrison v. Antonopoulos, 2002 28725 (ON SC), [2002] O.J. No. 4890 relied on by the solicitor for the Defendant. In that case, the jury was being asked to find as a fact whether the Plaintiff was 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.

[23] 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 28648 (ON SC), [2009] O.J. No. 2344 declaratory relief which is not to be determined by a jury.

[24] While Mr. Smith suggested the Plaintiff motion is premature and ought to be deferred until evidence is heard, I am not prepared to proceed in that fashion. In my view, if the basis for the motion to strike the jury had been that the evidence will be too complicated for the jury to properly comprehend, it may well make sense to hear at least some of the evidence in order to enable the court to make that determination. However, that is not the basis of the motion to strike the jury notice in the case before me. It is 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. 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. 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.

[25] As a result, the jury notice is struck and the issues in this case will be tried by judge alone.

D.A. Wilson J.

Date: February 21, 2013