BARRIE COURT FILE NO.: 08-1621

DATE: 20130619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Long, a minor under the age of 18 years by his Litigation Guardian, Braden Long

Plaintiff

– and –

Dundee Resort Development LLC carrying on business as Arapahoe Basin Ski Area, The Ontario Alpine Ski Team, Alpine Ontario South, Ski Association, Canadian Ski Coaches Federation, Ulic Longford, Pat Johnson, Teejay Alderdice and Brad Eades

Defendants

Rikin Morzaria and William Keele, for the Plaintiff

Graeme Mew and Morgan Martin, for the Moving Defendants

HEARD: June 11, 2013

REASONS FOR DECISION

EDWARDS j.:

Overview

[1] A young skier, undoubtedly with great promise for the future, left Ontario for Colorado with his parents’ blessing to train under the supervision of experienced coaches from Ontario. On November 12, 2007, the plaintiff’s dream came to an end as a result of a fall that resulted in serious personal injuries. This court is now required to determine whether the law of Colorado or the law of Ontario will apply to the liability issues between the parties. More particularly, the issue as framed by the parties is whether the issues of negligence in this case, including the applicable standard of care, duty owed to the minor plaintiff, causation, conditions for liability, contributory negligence, assumption of risk, imputed negligence, and joint liability, be decided according to Colorado law or Ontario law.

The Facts

[2] To the credit of the counsel who appeared on this matter, the parties were able to agree on an agreed statement of facts that substantially simplified the facts. As previously noted, this action arises out of a ski accident, which occurred on November 12, 2007.

[3] The minor plaintiff who is no longer a minor, Richard Long (the “plaintiff”) was a member of The Ontario Alpine Ski Team who began, in April 2007, skiing under the direction and supervision of Alpine Ontario.

[4] The defendant, The Ontario Alpine Ski Team, is a company incorporated pursuant to the laws of the province of Ontario with its head office in Collingwood and is involved in competitive downhill ski racing. The defendant Alpine South Ski Association is also a corporation incorporated in Ontario with its head office in Collingwood and is a division of Alpine Ontario, which is the governing provincial body for the sport of downhill ski racing. The individual named defendants Ulic Longford, Pat Johnson, Teejay Alderdice, and Brad Eades were the ski coaches who were hired and employed by The Ontario Alpine Ski Team and as such charged with the responsibility of training, coaching, and supervising the plaintiff. All of the aforementioned defendants will be referred to for the balance of these reasons as (the “Alpine Ontario Defendants”).

[5] When the statement of claim in this matter was issued on December 23, 2008, it also named as defendants, Dundee Resort Development LLP carrying on business as Arapahoe Basin Ski Area and the Canadian Ski Coaches Federation. As a result of Orders issued by Justices Graham and DiTomaso on July 19, 2011 and July 31, 2012, respectively, the actions as against Dundee Resort Development and Canadian Ski Coaches Federation were discontinued and dismissed. As such, the only remaining defendants in this action are the Alpine Ontario Defendants.

[6] Not surprisingly, before the plaintiff was allowed to travel to Colorado to train with the Alpine Ontario Defendants, he was required (together with his parents) to sign various documents. His participation in ski competition and training was governed by the Athlete’s Declaration for Registration with the International Ski Federation and the Alpine Canada Membership Registration Form.

[7] The Athlete’s Declaration for Registration with the International Ski Federation was signed on April 26, 2007. When this document was signed by the plaintiff, he was approximately fifteen years of age. The Athlete’s Declaration for Registration contemplates that disputes arising out of “an event in the FIS calendar, included but not limited to claims for damages of either party against the other arising out of occurrences (acts or omissions) linked with participation to such an event shall be governed by Swiss law and exclusively settled for arbitration before the court of arbitration for sport (CAS) in Lausanne.

[8] The Alpine Canada Membership Registration Form was also signed by the plaintiff on April 26, 2007 and contains what purports to be a release of liability and assumption of risk agreement.

[9] The plaintiff’s parents also signed an emergency consent and medical history form on July 30, 2007, which gave authority to the individual named defendants to give consent on behalf of the plaintiff to medical and/or surgical treatment in the event that it was required. The plaintiff’s parents also executed a travel consent form on July 30, 2007, giving consent to the Alpine Ontario Defendants to allow for the travel of the plaintiff to Colorado, as well as other locations, including Chile, Europe, and elsewhere in the United States. All of the aforementioned documentation was executed in Ontario.

[10] The plaintiff travelled to Colorado in October 2007 with the Alpine Ontario Defendants in order to train at the Arapahoe Basin. The plaintiff’s fall occurred while the plaintiff was taking part in the Fall training camp as part of the Ontario Alpine Ski Team. When the fall occurred, the plaintiff was being supervised and coached by the individual named ski coach defendants.

[11] There was a dispute between the parties with respect to the amount of safety-netting supplied by Arapahoe Basin; the directions given by the Arapahoe Basin to the ski coach defendants regarding the use of safety-netting; and the degree of control that Arapahoe Basin retained as the operator of the training venue.

[12] When the plaintiff’s fall occurred, the training was occurring on a run known as the Ramrod. The Ramrod was split into two training areas to facilitate two teams training – two different disciplines side by side. The Alpine Ontario Ski Team was training giant slalom on the right and a ski team from Jackson Hole, Wyoming was training slalom on the left.

[13] The agreed statement of facts provides that aside from an area known as “coaches corner” (an area on the hill where ski coaches would stand to watch the skiers) no safety-netting was erected by Arapahoe Basin or the ski coach defendants on the right side of Ramrod.

[14] Prior to the accident, the plaintiff had completed various warm-up runs and at least two training runs on Ramrod without incident. It is agreed that the plaintiff had completed six runs in total and had posted his teams fastest times on both training runs.

[15] While Dundee Resort Development LLC is no longer a party to this litigation, it is worth noting that the plaintiff entered into a season pass agreement and release of liability on October 29, 2007. This agreement refers to a Colorado statute called the Ski Safety Act and goes on to provide:

Under Colorado law, a skier assumes the risk of an injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions; existing and changing snow conditions; bare spots; rocks, stumps; trees; cliffs; extreme terrain; collisions with other skiers; natural objects; man-made objects including, freestyle terrain and jumps; variations in terrain; and the failure of skiers to ski within their own abilities.

[16] This court does not have before it any evidence with respect to Colorado law. Nonetheless, one can anticipate that the Ski Safety Act of Colorado may undoubtedly play a role in the trial of this matter, should this court decide that Colorado law applies to the liability issues between the parties.

Position of the Plaintiff

[17] In response to the Alpine Ontario Defendants’ motion, which seeks to have the tort liability issues governed by the law of the place where the tort occurred (the “lex loci delicti), the plaintiff argues that this court should exercise its discretion to depart from the general rule of lex loci delicti where the circumstances are such that the rule would work an injustice.

[18] The plaintiff argues that all of the remaining parties named in the statement of claim are from Ontario and, more importantly, that the relationship between the plaintiff and the Alpine Ontario Defendants was formed in Ontario in April 2007. Plaintiff’s counsel argues that the Alpine Ontario Defendants owed the plaintiff various duties, some of which duties arose out of the parties’ relationship and documentation which were signed in Ontario. It is suggested that given that these documents which govern the plaintiff’s participation in ski-racing and training with the Alpine Ontario Defendants were executed in Ontario, it would be an injustice to require that the duties and standards applicable to the Alpine Ontario Defendants would be determined on the basis on wherever the plaintiff might be skiing on a particular day.

Position of the Alpine Ontario Defendants

[19] The Alpine Ontario Defendants rely heavily on the Supreme Court of Canada decision in Tolofson v. Jensen 1994 44 (SCC), [1994] 3 S.C.R. 1022, which it is argued has conclusively determined that tort liability in Canada is governed by the liability of the place where the tort occurred. While it is acknowledged that the current law favouring the general application of the principle of the lex loci delicti vs. the local law (the “lex fori”) favours the position taken by the Alpine Ontario Defendants, counsel for these defendants acknowledges that Tolofson did leave the door open for exceptions in limited circumstances. Acknowledging that Tolofson did allow for exceptions to the general rule, it is argued by defence counsel that no such exception should apply to the facts of this case. It is argued that there is a considerable body of evidence of the parties’ activities in Colorado and that the parties’ presence in Colorado was anything but fleeting or transitory. It is argued that there is no evidence before this court to suggest that the application of Colorado law would give rise to any injustice.

The Law

[20] The Tolofson decision of the Supreme Court of Canada dictates that the substantive law of Colorado will apply to the circumstances of this case unless the basis for an exception to the lex loci delicti rule is demonstrated. The majority decision of the Supreme Court of Canada confirms in Tolofson that the courts have a discretion to apply the lex fori in international litigation, where necessary, to avoid injustice. This discretion, however, is limited and is to be exercised in only compelling and exceptional circumstances. In that regard, La Forest J. stated:

…I have already indicated, of course, that I view the lex loci delicti rule as the governing law. However, because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary. (Emphasis added.) See Tolofson at page 1054.

[21] The general principle laid down in Tolofson was an attempt made by the Supreme Court of Canada to ensure certainty in the choice of law and to respect the principle of territoriality. In that regard, La Forest J. stated:

I have thus far framed the arguments favouring the lex loci delicti in theoretical terms. But the approach responds to a number of sound practical considerations. The rule has the advantage of certainty, ease of application and predictability. Moreover, it would seem to meet normal expectations. Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs. If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected. Stability of transactions and well grounded legal expectation must be respected. Many activities within one state necessarily have impact in another, but a multiplicity of competing exercises of state power in respect of such activities must be avoided.

[22] Counsel for the plaintiff argues that the decision of La Forest J. has implicit in it the following circumstances as potentially justifying an exception to the general rule to prevent injustice. Specifically, plaintiff’s counsel refers in his factum to the following particular exceptions from Tolofson that apply to the facts of this case:

a) “[W]hen all parties are from another state [than the place of the tort] the likelihood is that the lawsuit will take place in their home jurisdiction. There is some merit to allowing judges in this situation to apply their own law.” However, Justice La Forest indicated that the fact that all parties are residents of the forum by itself was likely not sufficient to justify an exception from the general rule.

b) “[Where an act occurs in one place but the consequences are directly felt elsewhere…In such a case, it may well be that the consequences would be held to constitute the wrong.”

c) “[W]here the wrong directly arises out of some transnational or interprovincial activity. There Territorial considerations may become muted; they may conflict and other considerations may play a determining role.”

[23] While it is acknowledged that various duties that might be owed by the Alpine Ontario Defendants may have arisen in Ontario and certainly the documentation signed by the parties in that regard would give credence to that argument, the fact still remains that the delicti or the tort actually occurred in Colorado. The real issue that is before this court is whether or not any of the exceptions contemplated by La Forest J. in Tolofson should apply to the facts of this case.

[24] As noted by Feldman J.A. in Wong v. Lee, 2002 CarswellOnt 742 (C.A.), prior to 2002 there had been a number of international cases which had been decided in Ontario and elsewhere where all of the parties, as is now the case in the action before the court, were resident in one province and where the courts had applied the lex fori and, as such, deviated from the rule laid down in Tolofson, by way of the exercise of the courts discretion to avoid what was perceived as an injustice. What is made quite clear, however, by Feldman J.A. in Wong, is that the discretion contemplated by La Forest J. was to be exercised in only exceptional cases. In that regard, Feldman J.A. stated:

It appears that the trend of the case law is to broaden what was intended to be a very narrow exception to the general rule, and to apply the lex fori rather than the lex loci delicti generally in cases where the parties are resident in a province of Canada and have no connection with the state where the wrong occurred except to have been there in the accident. Although the exercise of the discretion must be available to address injustice in exceptional cases (such as Hanlan, supra; see para. 16 infra), it is my view that exercising the discretion whenever all the parties to the action are from the forum represents a misapplication of the Tolofson decision and a failure to recognize and give effect to the policy behind the enunciation of the rule, which emphasizes the importance of certainty in the choice of law rules as a means of achieving fairness in the application of private international law.

[25] It is worth pausing to note that in Wong, all of the parties to the accident were resident in the forum and had no connection with the foreign jurisdiction where the wrong occurred, except of course that the accident occurred in the foreign jurisdiction. Even in those circumstances, which are circumstances similar to those before this court, it was held that on the proper application of the conflict of laws rule established in Tolofson the lex loci delicti rule governed.

[26] A more recent decision of the Supreme Court of Canada perhaps brings home how the application of fairness and exceptional circumstances may dictate whether or not the lex loci delicti rule should apply. It can be found in Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870. The facts in Castillo involved a situation where a husband and wife were involved in a single vehicle motor vehicle accident in California where the limitation period was one year versus the limitation period in Alberta, being two years. An action was commenced in Alberta within the two year limitation period but outside the one year California limitation period.

[27] The issue before the court in Castillo, clearly raised a fairness issue. If the lex loci delicti rule applied, the plaintiff would effectively be confronted with the one year limitation under California law.

[28] In coming to its conclusion that California law applied, Major J. stated at para. 27:

I do not find the principle to be applicable in this case. As mentioned earlier, the relevant principles of common law were developed by La Forest J. in Tolofson. In that case, La Forest J. held that the rule of private international law that should generally be applied in torts is the law of the place where the activity occurred or the lex loci delicti. This choice of law rule was largely premised on the territorial principle that organizes the international legal order and federalism in Canada. La Forest J. was also motivated by a number of important policy considerations, including the need for certainty, predictability, and ease of application. The lex loci delicti rule has the benefit of being forum-neutral and eliminates potential forum-shopping concerns. La Forest J. explained that “[o]rdinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. (Tolofson, at pp.1050-51).

[29] As in Wong, supra, the only connection with the foreign jurisdiction in Castillo was the fact that the parties, being a husband and wife, were involved in a single vehicle collision in California. Even in these circumstances where it could be argued there might be an inherent unfairness in the application of the limitation period to deprive an injured plaintiff of her right to pursue an action in Alberta, the Supreme Court of Canada nonetheless applied the important policy considerations of certainty, predictability, and ease of application so as to apply the lex loci delicti rule.

[30] On the facts before this court, I can see no basis upon which this court can exercise what La Forest J. described as being “one of the few cases” where the court should exercise its discretion not to apply the lex loci delicti rule. It is also worth pausing to note that regardless of whether Colorado law or Ontario law applies, the ultimate trier of fact may also be required to hear submissions with respect to Swiss law, given the application of the dispute resolution provisions of the Athlete’s Declaration for Registration with the International Ski Federation, signed by the plaintiff on April 26, 2007.

[31] In conclusion, I am not satisfied that this court is presented with the types of facts that would allow it to exercise the very limited discretion contemplated by La Forest J. in Tolofson. As such, the issues of negligence in this case, including the applicable standard of care, duty owed to the minor plaintiff, causation, conditions for liability, contributory negligence, assumption of risk, imputed negligence, and joint liability shall be decided according to the laws of Colorado.

[32] As to the question of costs, if the parties are unable to agree upon the costs of this motion, written submissions limited to three pages in length shall be submitted to this court through the trial-coordinator’s office by June 30, 2013. If no such submissions are received within that timeframe, it will be assumed that the parties have agreed on costs and that this court’s involvement is no longer required on that issue.

Justice M.L. Edwards

Released: June 19, 2013