Court File and Parties

COURT FILE NO.: CV-09-375701 DATE: 20130405

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rolf Kempf Plaintiff

– and –

Thi Nguyen Defendant

COUNSEL: Patrick J. Monaghan, for the Plaintiff Doug Smith, for the Defendant

HEARD: February 4, 5, 6, 7, 8 and 11, 2013

REASONS FOR JUDGMENT

Madam Justice D.A. Wilson

[1] This action is a claim for damages sustained by the Plaintiff as a result of a bicycle accident that occurred June 1, 2008 while the parties were participating in an organized bicycle race. Prior to trial, damages were settled and the issue of liability remained. The trial commenced after the selection of a jury. The solicitor for the Plaintiff brought a motion to strike the jury notice before any evidence was heard. I granted the motion and the action proceeded before me, following which I reserved my judgment.

[2] The Defendant was granted leave, on consent, to deliver an amended Statement of Defence at the opening of trial which included the pleading that the action was barred by virtue of the doctrine of volenti non fit injuria.

[3] Counsel for the Defendant advised on February 7, 2013, that he had received instructions to abandon the defence of volenti non fit injuria.

I. Background

[4] The Plaintiff and the Defendant were participating in the Becel Ride for Heart [“the Becel Ride”], an organized road race to raise money for charity. It was held on June 1, 2008 and most of the route was on the Don Valley Parkway [“the Parkway”], which was closed to vehicular traffic that day to allow the cyclists to complete the ride.

[5] It was common ground that this particular ride was open to cyclists of all ranges of ability and participants to elect to ride the 25 kilometer route, the 50 kilometer route or the 75 kilometer route. The Becel Ride is an annual event. Its goal is to raise money for charity; it is not a competition and there are neither prizes nor awards for finishers. In order to be permitted to participate, the cyclists had to sign a waiver [exhibit 2], acknowledging essentially that they were riding at their own risk, were physically fit and their bikes were mechanically fit and absolving the organizers of any liability for any injuries suffered.

[6] The parties were both experienced cyclists who were members of cycling groups and who participated in group cycles several times a week. They did not know each other before the Becel Ride and had never cycled together. Both were familiar with the rules of etiquette when cycling in a group. The parties were familiar with riding behind someone in front of them in order to take advantage of what is known as “the draft”. This occurs when the cyclist in the lead cuts the wind so the riders behind do not have to exert as much energy as they ride. To enjoy the benefit of a draft, a cyclist must travel between one and four feet behind the rider in front.

[7] The Plaintiff and the Defendant signed up to ride the 75 kilometer route and they left at 7:15 a.m., the earliest start time. Generally, the faster, more experienced riders participated in the 75 kilometer distance.

[8] The accident giving rise to this litigation occurred in the southbound lanes of the Parkway. How the incident happened was the subject of testimony from the parties as well as witnesses who participated in the ride that day. Expert testimony was heard on the proper conduct for cyclists riding in a group.

II. Positions of the Parties

Plaintiff

[9] It is the position of the Plaintiff that he was riding in accordance with the rules that apply to cyclists riding in a group. He intended on moving in beside the Defendant to his left in order to take advantage of the draft. He was approximately two feet to the left of the Defendant’s bicycle when Nguyen moved over and struck the Plaintiff’s bicycle, knocking him off. The Defendant breached the rules of cycling when he moved suddenly and struck the front wheel of Mr. Kempf’s (“Kempf”) bicycle. This action constitutes negligence and a finding of liability must be made against him. Mr. Monaghan, counsel for the Plaintiff, submits that the appropriate standard of care is that of negligence and not recklessness.

[10] With respect to the issue of the waiver, Kempf argues that he had to sign the waiver in order to be permitted to participate in the ride and that by doing so, he agreed to observe the rules of the road and agreed that he was fit and his bike was in proper mechanical condition. However, he did not agree to release another participant who was negligent from any and all liability and the waiver does not operate in that fashion.

Defendant

[11] Mr. Nguyen (“Nguyen”) argues that a situation developed ahead of him on the roadway when some riders started to slow down and the rider directly in front of him swerved to the right. As a result, he had to take evasive action, which is why he moved suddenly to his left in order to avoid striking the rider in front of him. It is the position of the Defendant, that this situation developed very quickly and there was no time to consider his options; rather, he had to react to an emergency situation. Further, participating in an organized ride such as the Becel Ride is an inherently dangerous activity, and by signing the wavier, the Plaintiff agreed that he released others from any liability associated with the ride. In any event, the standard that must be proven is that of recklessness, not ordinary negligence and the Plaintiff has failed to meet this burden.

III. The Evidence

Rolf Kempf

[12] Kempf had been riding road bikes since 2007, on an average of two or three group rides per week. He was accustomed to riding 50 to 100 kilometer routes with the group from his club, Chain Reaction. In March 2008, he started to ride more often, perhaps three or four times a week in preparation for the Becel Ride in June. He was familiar with riding in a pace line and in a pack. He knew the Becel Ride was a large event involving perhaps 12,000 riders, with varying levels of experience of the participants.

[13] Kempf signed up for the ride on-line and checked off that he understood and agreed with the terms and conditions set out in the waiver. He had to do so in order to participate in the ride. He read the waiver on-line and thought it meant that he agreed he was in an appropriate level of physical fitness, that he would wear a helmet, that his bike was in good mechanical condition and that he would follow the rules of the road. He acknowledged that he understood that he was foregoing any rights to sue the Heart and Stroke Foundation, one of the organizers of the ride. However, he did not understand that by signing the waiver, he agreed that he would not sue other participants in the race in the event that he sustained damages.

[14] He met some of the other members of his cycling club the morning of June 1, 2008. There were perhaps 50 cyclists who were doing the 75 kilometer route. They were the first group to leave from the CNE grounds, eventually travelling northbound on the Parkway up to York Mills. The route then proceeded southbound on the Parkway.

[15] At the turnaround point, there were perhaps ten cyclists in the group that Kempf was riding with. They were travelling in a loose group formation. There was another group directly in front of them, perhaps 10-12 meters away, generally riding side by side. Kempf was at the front of his group of ten cyclists. At this point, he was feeling strong and the ride was going well.

[16] The Plaintiff intended on joining the group directly in front of him. The distance between his bike and the bike closest to him in front was perhaps five or six feet. Kempf wished to close the gap and move to the left of the last cyclist ahead of him, the Defendant. He was catching up with the group in front and intended on joining that group. The Defendant was cycling ahead of him to the right, and Kempf wanted to move up to his left in order to take advantage of the draft.

[17] When the Plaintiff was perhaps two feet or 50 or 60 centimeters from the side of the Defendant, his front wheel was beside the Defendant’s rear wheel. Kempf was certain that he was not half wheeling; he was travelling faster than the Defendant to close the gap so there was so there was some overlap between their bikes for a period of time. He did not see the Defendant stand up on his pedals.

[18] All of a sudden, the Defendant moved to his left very quickly, into the spot where Kempf was riding. Everything happened in a split second: the rear wheel of the Defendant’s bicycle struck the front wheel of the Plaintiff’s bike and he was thrown up and landed on the ground. Other cyclists rode over him as they could not avoid him. He was not certain of his speed at the time of impact, perhaps it was between 20 and 25 kilometers/hour. The force of impact between the two bicycles was significant. The Defendant did not stop after he struck the Plaintiff’s bike. It was only afterwards when he viewed the photos of the race that he was able to identify the Defendant as the cyclist who had struck him.

Gino Benevenga

[19] Mr. Benevenga [“Benevenga”] was a member of the Chain Reaction Bike Club and knew the Plaintiff from riding with him on group rides. He had participated in the Becel Ride on four previous occasions and had never seen an accident. He was riding the 75 kilometer route on June 1, 2008 and was about 15 or 20 feet behind the Plaintiff when the impact occurred. He did not actually see the Plaintiff fall.

[20] Benevenga testified that he had participated in perhaps 100 group rides before the day of the accident and there were certain rules that were to be followed when riding in a group: ride in a straight line; use signals; call out for a stop; if you are going up a hill and intend on standing up, call it out; do not move to the left or right without calling it out; always ride in a straight line.

Jason Walter

[21] Mr. Walter [“Walter”] is a member of the Beaches Cycling Club and was a member in June 2008 and did several group rides on a weekly basis. The Defendant is a member of the same riding club as Walter. He had met Nguyen prior to the accident, although he did not socialize with him outside of the club. Walter was an experienced cyclist and testified that when riding in a group, it is important to be predictable. What this means is that riders must “hold their line”, ride in a straight line and not change their speed significantly. He had participated in the Becel Ride on prior occasions and knew that it was a large event, involving cyclists with a broad range of experience.

[22] Walter was doing the 75 kilometer route at the Becel Ride in June 2008. He was riding in a pack with perhaps 20 other riders southbound on the Parkway. He recalled the distance separating the cyclists in the pack was perhaps one foot between shoulders and six inches front to back. Walter explained that in a pack, the riders behind get the benefit of the draft and the leaders get exhausted, so they drop back and others take the lead. This makes the group as a whole more efficient. Walter described the formation of the pack as a circle or a teardrop.

[23] Walter was riding behind the Plaintiff perhaps one or two bicycles back, perhaps as much as three bikes back, and off to his right. He estimated that before anything unusual happened, he was approximately six to ten feet from the Plaintiff’s bicycle and there was another cyclist between them. The Defendant was ahead of the Plaintiff, with perhaps six inches separating the two wheels of the two bicycles. They were in a line. He did not see their wheels overlap. He did not see anything unusual up ahead.

[24] As the pack moved southbound down the Parkway, there was a slight incline. Walter saw the Defendant stand upon the pedals of his bicycle to gain additional speed. As he did so, the bike slowed significantly and swung out and the rear wheel of the Defendant’s bike clipped the front wheel of the Plaintiff’s bike. As a result, Kempf went down. Walter had to take evasive action to avoid the bikes that were crashing in front of him. He stopped his bicycle and saw the Plaintiff was injured. Everything happened very quickly in a matter of seconds.

Gilles Uguen

[25] Mr. Uguen [“Uguen”] was a member of the Chain Reaction Bike Club in 2008 and regularly rode with the club on group rides several times a week. He was familiar with the Plaintiff and had done many rides with him before the day of the accident. He described the Plaintiff as a very fit, very confident, smooth cyclist.

[26] On June 1, 2008, Uguen was riding in a pack of between 30 and 35 riders close to the front. He was part of the lead group and there were perhaps five or six riders in front of him. He described the configuration of the group as more of a pack, with various riders taking turns in the lead position. The group was riding “pretty fast” and no one was slowing down. He testified that when a cyclist is riding in a group, you do not make any sudden brisk movements. You do not use your brakes because this action can cause a chain reaction in the riders behind you. If a cyclist intends on moving, first a check must be done to ensure that the movement can be made safely and then the rider must communicate by pointing a finger.

[27] He heard a crash and turn to look behind him and he saw the Plaintiff lying on the ground.

Hershel Fogelman

[28] Mr. Fogelman [“Fogelman”] was a member of the Chain Reaction Bike Club in June 2008 and regularly participated in group rides with the club. He signed up to ride the 75 kilometer route for the Becel Ride in June 2008, having done the ride seven or eight times previously.

[29] Fogelman was part of a group of 20 or 30 cyclists who were in the fastest group travelling southbound on the Parkway. He described the group as more of a pack than a pace line. He was reasonably close to the front of the group although there were riders in front of him.

[30] The leadership of the group changed and when the leader became fatigued, he would drop back and someone else would take over the lead. The riders travel close to each other when riding in a group. There might be three to four inches separating the riders and side to side, he could easily reach out and touch the riders on either side of him.

[31] On the day of the accident, he was not aware of any of the riders bunching up. There was nothing that he saw on the road that caused him concern. When he rides in a group, he tries to be as predictable as possible which means keeping in a straight line, travelling at a steady speed, signaling any movements that he intends to make, refraining from any sudden movements and alerting other riders to obstacles on the road. He testified that half wheeling occurs when a rider’s front wheel is even with another rider’s rear wheel and this is not safe for any period of time. When a rider is moving position there would be some half wheeling as a matter of necessity but not on a sustained basis. A cyclist always has to ride keeping in mind the other riders in the group.

[32] Fogelman was travelling at 35-40 kilometers/hour and did not see the Plaintiff fall off his bike nor the impact between the two bicycles.

Craig Tyndall

[33] Mr. Tyndall [“Tyndall”] was a member of the Chain Reaction Bike Club and rode in the Becel Ride event in June 2008. He was riding with some others from the club in a pack, there were perhaps 12-20 cyclists and they were at the front. As they moved southbound, there was a gentle incline and he was travelling at approximately 38 kilometers/hour.

[34] Tyndall was riding behind the Plaintiff and he could not recall if there was anyone beside him. He did not recall seeing anything unusual up ahead on the road. The Defendant was ahead of Tyndall to the right. Tyndall saw the Defendant swerve and the rear wheel of his bike struck the front wheel of the Plaintiff’s bike. Although the Plaintiff attempted to move to avoid him, there was an impact and the Plaintiff went down. Tyndall crashed as he was directly behind the Plaintiff and he thought four other cyclists crashed as well. The Defendant continued on riding without stopping.

Thi Nguyen

[35] Nguyen joined the Beaches Cycling Club in 2007 and continues to be a member of the club. He regularly rode with club members on organized rides several times a week. He was familiar with riding in a pace line and getting the benefits of the draft. In this formation, a rider rides directly behind the cyclist in front and maintains a consistent distance. The leader switches every few minutes and the riders behind are able to expend less energy and be more efficient.

[36] Nguyen learned cycling etiquette during group rides with the club. He knew that you had to signal if you were slowing down or making a turn. If there was something on the road ahead, such as a pot hole, you were expected to alert other riders to it. He was aware that riders are expected to ride in a straight line and not make any sudden maneuvers without calling it out. It is important when riding in a group to be predictable. One of the first rules you learn as a new rider is that you are never to overlap your wheels with another cyclist.

[37] Nguyen was familiar with the concept of drafting during a group ride. When you are doing this, the distance between your front tire and the back tire of the rider in front should be between one and two feet.

[38] Nguyen had not participated in a group ride for charity before doing the Becel Ride in June 2008. He had never cycled on a road that was closed for traffic before. He signed up for the 75 kilometer ride.

[39] On the day of the ride, he lined up for the early start. It was a windy day and the group at the front was not organized. He did not know anyone in the group. The lead group was travelling very fast and it seemed that everyone was riding for themselves.

[40] Nguyen did not know who the Plaintiff was. At some point, while he was travelling southbound on the Parkway in a group of about ten riders, he heard a loud noise of people crashing behind him. He did not look back as he was concentrating on the rider in front of him. The leader of his group said they were going to carry on with the ride so Nguyen did not stop. He had no idea that he had caused the crash that he heard.

[41] Prior to the crash, the group that Nguyen was a part of was in pace line formation, with one rider lined up behind the other to get the benefit of the draft. There were five or six members in this line. There was another pace line with five or six riders in it. The pace lines rode side by side and the distance between the riders’ shoulders was a foot or less. There were cyclists beside him on his left and there was no-one behind him. The group changed from pace line to a pack. Nguyen was cycling behind another rider, perhaps one foot from the rear tire of the bike in front. The rider was a large fellow and he could not see beyond him. There was a rider beside him about a foot to his left.

[42] Nguyen was not aware of an impact with the rear wheel of his bike. The rider in front of him swerved suddenly off to the right without signaling and slowed down. The rider two ahead of him slowed right down, although he did not signal that he was doing so. This is what caused the rider in front of Nguyen to move out of the pace line. As a result, Nguyen had to swerve to the left to try and avoid him. At that point, Nguyen was going at least 35 kilometers/hour and was sitting in the saddle of his bike. Other riders applied their brakes. Nguyen testified that he did not recall standing up on his pedals just prior to the collision with the Plaintiff.

[43] There was no time for Nguyen to consider what he was going to do; he just reacted and swerved to his left in order to avoid striking the rider directly in front of him. He did not shout out any warning as there wasn’t time; nor did he try to apply his brakes. Everything happened in a split second. He was not aware of the presence of the Plaintiff behind him and to his left as he was in his blind spot. When he moved to the left as an evasive action, he moved perhaps 50-60 centimeters. He agreed that this was an unusual situation which would have been noticeable to other riders.

[44] Nguyen testified that he did not know why the two riders in front of him slowed down but he thought it was because the one in front had been the leader for too long and was fatigued. He did not know that he had played any role in the Plaintiff’s crash when he finished the ride.

[45] Nguyen acknowledged that he was familiar with the rules that applied when one participated in a group ride and that if a rider did not follow the rules, he could jeopardize the safety of the riders behind. He agreed that it was important to maintain one’s line and avoid sudden maneuvers. Also, he agreed that when leaders peel off and the group re-forms there might be short periods of time when overlapping of wheels might occur.

[46] Nguyen testified that when the rider in front of him moved off to the right, he could have followed him but instinct made him move to the left, even though he knew there was a rider beside him a foot away. He acknowledged in cross-examination that his sudden movement to his left did not accord with etiquette for riders in a group ride but it was an emergency situation.

Andrew Randell

[47] Mr. Randell was tendered by the solicitor for the Defendant as an expert in the proper conduct of cyclists participating in an organized ride. Randell was on Canada’s national cycling team from 1997-2001 and in 2002, he was the Canadian national road race champion. He was a professional cyclist from 1998 until 2011. At the present time, he works coaching athletes and manages a cycling team.

[48] The solicitor for the Plaintiff objected to Randell being qualified and I heard argument on the point. I determined that Randell would be qualified as an expert entitled to offer an opinion on the proper conduct for riders participating in a charity ride such as the Becel Ride, although he would not be permitted to offer an opinion on the issue of whether the Becel Ride was an inherently dangerous activity.

[49] In accordance with my direction, Randell prepared a list of the basic group ride elements and that document was marked as exhibit 15 at the trial. Randell defined the term half wheeling as what occurs when the front wheel of one cyclist overlaps with the back wheel of the cyclist in front. It is not a momentary overlap but rather an action that occurs consistently over a period of time. Half wheeling is dangerous because it may cause a crash. He agreed that some overlapping is unavoidable in a group ride.

[50] Drafting is a concept that is integral to a group ride because it involves the front rider breaking the wind and creating a pocket of air for the riders behind so that they can conserve energy and go faster.

[51] Randell testified that riders must keep a safe distance between themselves and the next rider both before and after and to the sides. In his opinion, a safe distance is 1.5 feet. Etiquette requires there be no sudden movements and that a rider has a responsibility to every other rider in a group to conduct himself in a safe manner.

[52] In the opinion of Randell, if the Defendant was confronted with a situation where the cyclist in front of him swerved to the right and the Defendant saw riders up ahead slowing down, it was not improper for him to turn to the left without signaling. Randell testified that the Defendant had to make an immediate decision and did not have sufficient time to weigh the various options so it was reasonable for him to move to the left. If the Plaintiff was trying to catch up with the group in front and was coming within two feet of the Defendant to do so, in the opinion of Randell, this was unreasonably close.

[53] Randell acknowledged that in coming to his opinion, he did not consider the evidence of the eyewitnesses to the collision. For example, he did not consider whether or not the Defendant stood up on his pedals because Kempf never saw this action.

[54] In cross-examination, Randell agreed that if Nguyen were travelling at 30-35 kilometers/hour in a pack and the Plaintiff was coming in to fill the gap, two feet away and if the front wheel of the Plaintiff’s bike was even with the axel of the rear wheel of the Defendant bike and Nguyen suddenly moved over two feet and hit the Plaintiff’s bike, that would constitute a breach of the rules governing group rides. Further, he acknowledged that such an action would put the safety of the group in peril and would be a careless maneuver. Making a sudden movement two feet to the left during a fast group ride is contrary to the rules applicable to cyclists in a group ride, and would be dangerous and possibly reckless.

IV. Analysis

[55] Many of the facts surrounding the unfortunate accident that occurred on June 1, 2008 are not in dispute. Both of the parties were experienced cyclists who decided to participate in the Becel Ride to raise money for charity. It was not a race or a competition. Both of them signed waivers which was a pre-requisite in order to participate in the ride.

[56] Kempf and Nguyen were familiar with the rules that govern cyclists when they participate in a group ride. The weather on the day of the ride was windy and cool but there were no adverse weather conditions that contributed to the accident. The parties decided to do the 75 kilometer route and they started out with the earliest group. The Defendant was part of the first group of riders just before the collision occurred and the Plaintiff was in the group right behind, intending on closing the gap and joining the first pack.

[57] The main dispute between the parties lies in the circumstances of the collision between the two bikes. The parties each testified about their recollections of how the incident occurred as did several other cyclists who participated in the ride that day. Walter and Tyndall witnessed the collision.

[58] Briefly put, the Plaintiff asserts that he was riding in accordance with the rules governing group rides, intending on closing the gap between him and the Defendant when Nguyen for no apparent reason, moved suddenly to the left. As a result, his rear tire came into contact with the front tire of the Kempf bike, which caused him to fall off his bike. Other cyclists following the Plaintiff also fell. Kempf did not recall seeing Nguyen stand up on his pedals prior to the collision.

[59] Walter was riding behind the Plaintiff with another cyclist separating them. The Defendant was ahead of the Plaintiff, perhaps there was six inches between the two bikes. He saw the Defendant stand up on the pedals of his bike to gain speed. His bike slowed as a result and the rear wheel of his bike clipped the front wheel of the Plaintiff bike, knocking Kempf to the ground.

[60] Tyndall was riding beside the Plaintiff and the Defendant was ahead of him to the right. He saw Nguyen swerve and the rear wheel of his bike struck the front wheel of the Plaintiff’s bike and Kempf fell to the road. Tyndall crashed as he was directly behind the Plaintiff. Several other cyclists could not avoid the Plaintiff and crashed as well.

[61] Nguyen did not recall standing up on his pedals just prior to the collision. He asserts that the rider directly in front of him, all of a sudden, pulled out of line and went off to the right. Nguyen then saw cyclists directly ahead of him slowing down, although he did not know the reason for this. When the rider in front pulled out, Nguyen had to swerve to the left to try and avoid the rider in front of him. He was not aware that there was any contact between his bicycle and that of the Plaintiff.

[62] When asked why the other witnesses who testified did not see anything on the roadway that caused the need for evasive action, Nguyen said that they were too far back and would not have seen the riders slowing down. He had no explanation for the fact that Fogelman and Uguen who were at the front of the pack did not see any problems on the roadway which necessitated other riders slowing down. He also disagreed with the other witnesses who testified that the group was riding in a pack formation and not in pace lines.

[63] The other witnesses who participated in the ride, namely Uguen, Fogelman and Benevenga all testified that one of the rules that applies when a rider is participating in a group ride is that you do not move to the left or right without calling it out and it is important to be predictable in your movements as the other riders depend on it.

[64] These witnesses were all riding in close proximity to Kempf and Nguyen. None of them saw any riders slowing down or moving out of the group just prior to the collision, as alleged by Nguyen. I was impressed with the Plaintiff as a witness. I found him to be straight-forward in his responses to questions and he did not attempt to embellish his evidence to gain advantage. His version of events is supported by the testimony of Walter and Tyndall, neither of whom have any reason to assist the Plaintiff in this lawsuit. Indeed, Walter is a member of the same cycling club as the Defendant and did not know Kempf before the Becel Ride.

[65] The fact that Walter recalled the Defendant standing up on his pedals before the impact and the Plaintiff did not have the same recollection is of no particular moment, in my view. Kempf may not have seen this action or because he was concentrating on closing the gap between them or may have forgotten it, given the subsequent events. He was adamant however, that he saw the Defendant swerve from his position and collide with the front wheel of his bike, causing him to fall.

[66] Nguyen testified that he heard a crash just behind him but he denied that he realized that he played any role in it and so he continued on with his ride. This does not accord, in my view, with common sense. If a person is part of a small group cycling together on an organized ride and that individual witnesses unusual behaviour from riders right in front of him and then seconds later hears a crash right behind him, surely that person would at least turn his head to see what had happened. The Defendant did not; yet the other riders who testified at the trial (Benevenga, Walter, Uguen, Tyndall and Fogelman) were all aware that the Plaintiff as well as several other riders crashed.

[67] 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 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.

[68] In my opinion, Nguyen was not an impressive witness. Where his evidence contradicts that of the Plaintiff, I accept the evidence of Kempf. Nguyen described other riders slowing down and the cyclist directly in front of him moving off to the side. These actions would be most unusual in the group of cyclists at the front of the ride that day and would not accord with the usual practices of experienced cyclists. Had this occurred, it certainly would have been noticed by the other cyclists in the group, who were riding very close together, yet it was not. None of the witnesses who were riding in that group corroborated the testimony of Nguyen. Tyndall was directly behind Kempf and he saw the Defendant swerve out of his path of travel and strike the Plaintiff’s bike. I do not find as a fact that the Defendant’s movement to his left was caused by the actions of any other riders in front of him.

[69] Rather, I find that the Defendant stood up on his pedals and in doing so, he slowed and swerved to the left suddenly. In so doing, the rear tire of his bike struck the front tire of the Plaintiff bicycle. The impact caused the Plaintiff to fall off his bike, strike the ground and sustain injury.

Is there a Duty of Care?

[70] Counsel did not address the issue of whether a duty of care existed between the parties and I assume that is because it is conceded by the Defendant that such a duty of care existed. However, if I am incorrect in this assumption, I will deal with this issue.

[71] In Rozenhart v. Skier’s Sport Shop,[^1] the Court noted, “Negligence is a tort that is proved via a systematic analysis of the duty of care owed, the associated standard of care, the defendant’s failure to meet that standard, and a loss to the plaintiff caused by that failure…”

[72] In Kamloops v. Neilsen,[^2] the Supreme Court of Canada dealt with the issue of whether the City owed a duty of care to person who might be injured by a breach of its duty. Making reference to the often quoted case Anns v. Merton London Borough Council,[^3] Justice Wilson stated that in order for a private law duty of care to exist, there must be a sufficiently close relationship between the parties so that one could reasonably contemplate that carelessness on his or her part might cause damage to the other. If so, then the question must be asked whether there were any considerations which ought to negative or limit the scope of the duty or the damages to which a breach might give rise.

[73] In the case before me, there was evidence from the parties, the participants in the ride as well as from the expert Randell that cyclists participating in a group ride had to ensure they did nothing to put the safety of the other riders in peril. There is an element of trust between cyclists who ride in a group because of the proximity to others and the fact that any sudden or unexpected movement can have a disastrous effect on the safety of the other riders. As the expert Randell explained, the overarching concern is for every rider to consider the safety of the group and the “Basic Group Ride Elements” document which he composed sets out the essential rules that a cyclist must understand and follow in order to ensure the others are safe on a group ride. I have no difficulty finding on the facts of this case that the Defendant owed a duty of care to the Plaintiff while riding in the Becel Ride.

Is there anything that ought to negative or limit the duty of care?

[74] In some cases, the courts have stated that inherent risk may be a consideration that negatives a duty of care: see Hagerman v. City of Niagara Falls.[^4] However, other cases have found that inherent risk in an activity may operate to modify the standard of care: see Rozenhart. I prefer the reasoning of Justice Lee in Rozenhart. I concur with his comment that “It [cannot] be said that the presence of inherent risk in an activity fundamentally changes the nature of a relationship between two parties so as to justify a decision in law that the relationship is one that ought not to give rise to a duty.”[^5]

[75] I agree with the definition of inherent risk as expressed in Potozny v. Burnaby,[^6] where it was stated, “Unlike the concept of “voluntary assumption of risk”, inherent risk is not a separate defence that comes into play after negligence has been established but is a recognition by the courts that what constitutes reasonable care will depend upon the perils which a person engaged in an activity might reasonably be expected to encounter.”

[76] Certain activities, particularly sporting activities, are fraught with risk and this fact cannot and should not be ignored. However, the duty of care is established by the relationship between the parties. The nature of the risks inherent in a given activity is relevant to what the proper standard of care is in a specific situation. Put differently, the question of what constitutes reasonable care is affected by what risks a person participating in a sporting event could reasonably have expected to face.

[77] Simply because there is inherent risk in an activity does not mean that there is no duty of care. Rather, the fact that a particular activity carries with it certain inherent risks can operate to modify what constitutes reasonable care in the circumstances, bearing in mind that a person engaged in an activity must be taken to reasonably expect to encounter specific risks while doing the activity.

[78] Thus, the fact that cycling carries with it some inherent risks does not mean the duty of care of Nguyen is negatived.

What is the standard of care for cyclists participating in the Becel Ride for Heart?

[79] The Plaintiff submits that he must prove on a balance of probabilities that the Defendant was negligent in order for the court to make a finding of liability. The Defendant submits that the Plaintiff must prove recklessness rather than simple negligence in order to succeed, due to the risks inherent in participation in the organized ride. Mr. Smith, Counsel for the Defendant, argues that the precise standard of care to be applied depends on the nature of the activity undertaken and I agree. Some sports are very high risk while others are not. It is accepted law that each case must be decided on its own facts. Injuries that are occasioned where there is a clear intention to cause harm will generally result in the imposition of liability: see Dunn v. University of Ottawa.[^7] However, there is no suggestion in the case before me that the actions of Nguyen were meant to cause injury to Kempf.

[80] Counsel were unable to point to any cases in the Canadian jurisprudence where one cyclist sued another for damages in negligence. I turn, therefore, to other cases involving sports-related injuries as the analysis of the standard of care is of assistance.

[81] In Unruh (Guardian ad litem of) v. Webber,[^8] the British Columbia Court of Appeal, when dealing with injury to a Plaintiff occasioned in an organized hockey game, provided the following statement of the law on the applicable standard of care:

29. Mr. Laxton, in a concise written summary, stated his position thus:

30. The element of risk, to the extent it is normally accepted as part and parcel of the game by reasonable competitors, acting as reasonable men of the sporting world, is one of the circumstances that may be considered under the "standard of care" issue.

31. The standard of care test is - what would a reasonable competitor, in his place, do or not do. The words "in his place" imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue.

We would adopt this as an accurate summary of the law on this issue.

[82] The solicitor for the Defendant relies on the American jurisprudence where cases involving injuries sustained during sporting events have been found to require evidence of recklessness or intentional actions causing injury. Mark v. Moser,[^9] involved a claim for injuries sustained when the parties were participating in a triathlon and the Defendant allegedly cut the Plaintiff off during the biking portion and the Plaintiff fell. The Court considered whether the appropriate standard of care was negligence or recklessness. In finding that the Plaintiff had to prove the Defendant was reckless or engaged in conduct intended to injure, the Indiana Court stated, “After reviewing the decisions of other jurisdictions that have considered this issue, we are convinced that a negligence standard would be over-inclusive. Specifically, we believe that adopting a negligence standard would create the potential for mass litigation and may deter participation in sports because of the fear of incurring liability for the injuries and mishaps incident to the particular activity…Finally, as a matter of policy, we prefer to avoid the need to hold a jury trial to determine whether the plaintiff incurred the risk of injury in every case involving a sports injury caused by a co-participant. We can prevent this necessity by adopting an objective primary assumption-of-risk doctrine and a standard of care greater than negligence…”[^10]

[83] I am not persuaded that the policy considerations underlying the reasoning in the American cases have any relevance or application to the situation in Ontario. I prefer to follow the approach adopted in the Canadian jurisprudence.

[84] In Fink v. Greeniaus,[^11] Justice Van Camp considered the issue of the appropriate standard of care between two skiers and noted that it was the first time that issue was before the court. She stated, “The general definition of negligence with which one begins is that it is the failure to exercise that degree of care which certain circumstances demand. The omission to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct of our affairs, would do in any particular situation or the doing of something which that man would not do in that situation. Negligence is relative to the circumstances; the standard of care is measured by the conduct of the average man…”[^12]

[85] Although the Defendant relies Fink , in support of his argument that the appropriate standard is that of recklessness, I do not find this case assists him. While Justice Van Camp uses the adjective “reckless” during her decision, she clearly applies the standard of negligence when coming to her decision on liability.

[86] 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[^13] 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...”

[87] There may be certain injuries that can be expected knowing what the sport entails, and if a participant suffers injury from the usual practices that are involved in the sport, there would not be liability imposed. However, when an injury is sustained while participating in a sport arising out of the negligence of another participant, this is not one of the inherent risks that is associated with playing the sport and there may be a finding of liability.

[88] In the text Sports and the Law in Canada, it is noted:

Where it is alleged that one participant has negligently injured another, a court considers the factors of duty, due care and foreseeability of injury in the ordinary way. Since sports necessarily involve some risk of injury, the standard of care is modified according to the circumstances and inherent practices (including rule violations) of the game; the standard may therefore be loosened to allow behaviour that is not acceptable on the street. Acceptable treatment of fellow players varies from sport to sport... [^14]

[89] As mentioned, the Court in Unruh set out the test to be applied when determining liability.[^15]

[90] 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.

[91] That said, it is a sport which is done at a fast rate of speed, wearing little protective gear and there are various risks that are inherent in participating in an organized bicycle race. A rider might, for example, hit a pothole with a resulting loss of control and being thrown off the bike, sustaining injury. Or a cyclist might blow a tire and fall off the bike or perhaps skid on wet pavement, losing control of the bike and suffering injury. These eventualities might be viewed as risks inherent in participation in the sport of cycling. However, negligent conduct cannot be viewed as a risk that a participant agrees to accept by engaging in a sport.

Was there a breach of the standard of care?

[92] The evidence was consistent from all of the witnesses that one of the cardinal rules of participating in a group ride is that a cyclist must not make any sudden movements, must maintain a steady pace and signal any movements. These rules are known to all cyclists and according to the expert Randell, they are universally known. He testified that each rider has a responsibility to every other rider in a group to adhere to the rules so that the group members will be safe during the ride.

[93] When Randell was asked by the solicitor for the Defendant to provide an expert opinion on the actions of the parties in this lawsuit, he understood that the riders in the group were in two pace lines and there was a sudden slowing of the lead rider in the group. Consequently, the riders following “had to perform emergency manoeuvres in order to keep from crashing. To keep from crashing Mr. Nguyen moved to his left.” On the basis of these facts, Randell offered the opinion that the actions of Nguyen were in keeping with those of a reasonably competent cyclist.

[94] Randell was asked in cross-examination to opine on whether the actions of the Defendant in moving over two feet suddenly when travelling in a pack with the Plaintiff two feet away accord with the expected behaviour of an experienced cyclist. He testified that in those circumstances, the Defendant breached the rules of conduct for cyclists riding in a group and put the safety of the other riders in the group in peril. He agreed this action would be dangerous and reckless.

[95] I found Randell to be a knowledgeable witness who was not an advocate but rather attempted to fulfill the duties of an expert to the court. He was clear in describing the rules that apply to cyclists riding together in a group and the document entitled “Basic Group Ride Elements” setting out the basic rules for a group ride that must be adhered to, in order to ensure the safety of the ride, was of great assistance to the Court.

[96] In rejecting the Defendant’s account of what caused him to take emergency action, I find that in moving over suddenly and contacting the Plaintiff’s bicycle, he failed to act in a reasonable fashion in the particular circumstances of riding in an organized ride with a group of other cyclists. He acted in contradiction to well-known established rules of conduct for cyclists in a group ride. To make matters worse, he was riding with a group of other riders that he was not acquainted with; whose level of skill he did not know. In addition, I reject his evidence that he was unaware of any contact with the Plaintiff bicycle. He was travelling quickly in close proximity to Kempf and it is inconceivable that he did not realize he struck another vehicle in these circumstances.

[97] I do not find that there was an emergency situation that necessitated Nguyen making a split second decision to avoid disaster. It is not clear why he moved over into the path of the Plaintiff. In the absence of any other explanation, I find that he stood up on the pedals of his bike and in doing so, he slowed and swerved to the left, where he struck the bicycle of the Plaintiff.

[98] 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 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.

[99] I concur with the sentiments expressed by Justice Lambert in Herok v. Wegrzanowski,[^16] where he observed, “It is not every careless act causing injury that will give rise to liability. It is only careless acts outside the risks assumed that can be the foundation of such liability but that is a question of fact for each case.”

[100] The actions of the Defendant were not only careless, they were clearly outside of the risks assumed by the Plaintiff when he signed up for the Becel Ride. He did not expect that one of the participants, an experienced cyclist, would breach one of the most basic rules of group rides, resulting in injury to the Plaintiff. The actions of the Defendant were a breach of the standard of care one could expect from a cyclist in a group ride.

Does the [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) apply?

[101] Counsel for the Defendant argues that since the Parkway was closed to vehicular traffic at the time of the collision, the Highway Traffic Act, R.S.O. 1990 c.H.8 [“Act”] does not apply and as a result, neither do the rules of the road. Reliance is placed on two criminal cases in support of this argument. It is not clear to me what flows from such a determination or how it assists the Defendant. It was submitted that it is not helpful to analyze the collision between the parties in the case before me in the same way as the court would study a collision between two cars on a highway. Reference is made to the reasoning of Justice Galligan [as he then was] in Gilsenan v. Gunning,[^17] where he noted that an accident that occurred on a crowded ski run could not be looked at in the same way as a collision between two cars on a highway.

[102] In my view, it is not necessary for me to determine whether or not the Act applies to the case before me in order to deal with the issue of liability. However, if I am wrong in this view, I will deal with the argument advanced by the Defendant. In cases where a road has been closed completely, it has been held that the road may not be considered a highway as the term is used in the Act.[^18] In deciding whether or not a road in question was a highway, the courts look at whether or not the public has the right of access. If, on the one hand, a road is completely closed to traffic, it has been found not to be a highway. If, on the other hand, the road is not completely closed to members of the public, and certain traffic permitted, the road has been held to be a highway.[^19]

[103] In the present case, while regular traffic was not permitted on the Parkway because of the ride, other vehicles were including the bicycles, police cars, emergency vehicles to name a few. I find that the Parkway was a highway as defined in the Act. The provisions of the Act applied during the course of the Becel Ride.

What is the effect of the waiver?

[104] There is no dispute that all participants in the Becel Ride were required to sign a waiver prior to participating in the ride. In the case of the Plaintiff, he registered on-line and therefore had to read the waiver on-line and indicate that he agreed with its contents, which he did. The waiver was marked as exhibit 2 at the trial. The relevant portions of the waiver are as follows:

a. I agree 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…that I am aware of the risks inherent in participating in the Becel Heart&Stroke Ride for Heart and assume all such risks;

b. In consideration of the acceptance of my application and permission to participate as an entrant in the Becel Heart&Stroke Ride for Heart I hereby release, waive and forever discharge the Heart and Stroke Foundation of Ontario...and all other associations…claims, damages, 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 indemnity 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.

c. By submitting this entry, I acknowledge having read, understood and agreed to the above waiver, release and indemnity….

[105] The Plaintiff testified that when he was registering for the ride on-line the waiver appeared and he had to tick off a box to indicate that he agreed with its contents. He read the waiver and understood that he was agreeing that he was responsible for his own safety, was physically fit and his bike was mechanically fit and that he would follow the rules of the road. He agreed that he was accepting the risks that were inherent in the ride and he did not feel it was necessary to contact the Heart and Stroke Foundation to inquire further about the release. In response to a question during cross-examination, he said that he did not understand that he was giving up his rights to sue other participants in the ride.

[106] The solicitor for the Defendant argues that by signing the waiver, the Plaintiff confirmed that he understood the risks inherent in the ride and in a group ride, there are riders of various degrees of experience and there is always a risk of a collision. What happened during the ride was something that the Plaintiff knew could occur and he agreed that he would not sue for damages for any injuries from the ride; he ought to be held to the terms of the waiver.

[107] Mr. Monaghan, for the Plaintiff, argues that the waiver does not operate to release Nguyen but only vis-à-vis the Heart and Stroke Foundation and thus, the waiver is irrelevant.

[108] The waiver is poorly drafted and confusing. A close reading of it reveals that it releases the Heart and Stroke Foundation and other organizations such as the City of Toronto and the Police and “all other associations” from claims for damages. While there is reference to the “participants”, the waiver does not release other participants, but rather the various organizations from claims against them, including damages occasioned by the negligence of a participant or other competitor. It clearly does not release other riders from claims arising from their negligence during the ride.

[109] Even if I am wrong on my interpretation of the provisions of the waiver, I would still not give effect to the waiver. The law is clear that a party relying on a waiver has the onus of proving the validity of the document and any ambiguity is resolved against the party who is attempting to rely on it. In this case, the waiver is broad and vague and parts of it do not make sense. If a party is seeking to rely on a waiver to defend a claim based in negligence, the wording must be specific as to what risks and dangers in the activity would be covered.[^20]

[110] In the case at hand, I do not find that by signing the waiver, the Plaintiff was agreeing to give up his right to sue Nguyen for negligent conduct during the ride. The waiver does not specifically state that and certainly, there was no evidence at trial that the Plaintiff understood that by ticking off the box on-line accepting the terms of the waiver, he was agreeing that he would not sue, even if another rider was negligent and this negligence caused him injury. I do not give effect to the waiver or find that it operates to preclude the Plaintiff from bringing this action.

V. Conclusion

[111] The actions of the Defendant during the Becel Ride in June 2008 were negligent and caused the collision between the parties, resulting in damages to the Plaintiff. There will be a finding of liability against the Defendant.

D.A. Wilson J.

Released: April 5, 2013

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rolf Kempf Plaintiff

– and –

Thi Nguyen Defendant

REASONS FOR JUDGMENT

D. A. Wilson J.

Released: April 5, 2013

[^1]: 2002 ABQB 509; [2003] 5 W.W.R. 534, at para. 27, aff’d 2004 ABCA 172; [2004] 9 W.W.R. 527, [Rozenhart]. [^2]: 1984 SCC 21, [1984] 2 S.C.R. 2, at pp. 8-13. [^3]: [1978] A.C. 728. [^4]: (1980), 1980 ONSC 1902, 29 O.R. (2d) 609 (H.C.) [^5]: Rozenhart, at para. 51. [^6]: 2001 BCSC 837; [2001] B.C.J. No. 1224, at para. 108. [^7]: [1995] O.J. No. 2856 (Ont. Gen. Div.). [^8]: 1994 BCCA 3272, 112 D.L.R. (4th) 83, at para. 29 (B.C.C.A.) [Unruh]. [^9]: 746 N.E.2d 410; 2001 Ind. App. LEXIS 671(Court of Appeals of Indiana). [^10]: Ibid., at paras. 22-23. [^11]: (1974), 1973 ONSC 777, 2 O.R. (2d) 541 (Ont. H.C.) [Fink]. [^12]: Ibid., at p. 546. [^13]: 2005 ONSC 23685, [2005] O.J. No. 2873, at para. 14 (S.C.). [^14]: John Barnes, Sports and the Law in Canada 3rd ed (Toronto: Buttersworth, 1996) at 279. [^15]: See para. 82 of these reasons. [^16]: [1985] B.C.J. No. 1778, at para. 19 (B.C.C.A.). [^17]: 1982 ONSC 3139, [1982] O.J. No. 655, at para. 23 (H.C.J.). [^18]: R. v. Cirillo, [1981]O.J. No. 2459. [^19]: R. v. Mills, [2011] O.J. No. 1574 (C.J.) [^20]: Gallant v. Fanshawe College of Applied Arts and Technology, [2009] O.J. No. 5339 (S.C.).