COURT FILE AND PARTIES

COURT FILE NO.: CV-10-401495

DATE: 20141202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHRYN CLARKE

Plaintiff (Responding Party)

– and –

ALASKA CANOPY ADVENTURES LLC and ALASKA RAINFOREST SANCTUARY LLC

Defendants (Moving Parties)

S. Grillone and M. Jorge, for the Plaintiff

Rui Fernandes and K. Newton, for the Defendants

M.A. Cohen for the Defendants Royal & Sun Alliance and Global Excel Management Inc. in Court File No. CV-10-401492 and CV-10-40149200-A1

Robert G. Plate for the Defendant Mondial Assistance in Court File No.CV-10-401492 and CV-10-401492-00A2

HEARD: September 18, 2014

REASONS FOR DECISION

Firestone J.

[1] The moving party defendants Alaska Rainforest Sanctuary LLC and Alaska Canopy Adventures, properly named as Alaska Rainforest Sanctuary LLC and doing business as Alaska Canopy Adventures (“Alaska Canopy”), bring this motion under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) for summary judgment dismissing the claim of the plaintiff Kathryn Clarke (“Clarke”) based on a Participant Agreement (“agreement”) signed by her on July 25, 2008.

[2] Clarke commenced an action against Alaska Canopy for personal injuries sustained while participating in a zip-line tour run by Alaska Canopy in Ketchikan, Alaska, on July 25, 2008. Alaska Canopy submits that the agreement signed by her excludes all liability for the very claims she has brought against them. Alaska Canopy also moves for summary judgment dismissing the related claims against it, in file numbers CV-10-401492-00A1, and CV-10-401492-00A2.

[3] For the reasons that follow, I dismiss the moving party’s motion.

FACTUAL BACKGROUND

[4] Clarke had been on an Alaskan cruise operated by Regent Seven Seas Cruises. A zip-line tour was recommended to her by the cruise’s reservation concierge. The zip-lining trip was booked by the concierge and paid for by Clarke, following which she was issued a ticket with Alaska Canopy’s name on it.

[5] Clarke was met at the dock by a representative of Alaska Canopy and taken by bus to the zip-lining facility. Following her arrival, she and the other participants in her zip-lining group (approximately 15 people in total) were provided with training on how to operate the zip-line and were asked to sign the two-page agreement. The full title of the agreement as it appeared at the top of the document itself was “PARTICIPANT AGREEMENT (including assumption of risks and agreements of release and liability).” The words “participant agreement” are capitalized and in large print. The words “(including assumption of risks and agreements of release and liability)” are not capitalized and are in small print.

[6] Clarke was told that she was required to sign the agreement in order to participate in the zip-line tour. She was instructed where to sign, and also to initial the agreement in various places throughout the agreement. In her affidavit she deposed that she did not read the entire agreement. The agreement contained a release of liability, waiver of claims, and indemnity agreement (“the waiver”), as well as a description of the risks, conditions of participation, and refund policy.

[7] It is alleged that on the third zip-line Clarke was unable or failed to brake in time. During her second zip-line she had braked too early and as a result became stuck in the middle of the line. Concerned about that happening again, she asked the zip-line guide how to avoid this problem.

[8] Clarke alleges that the guide advised her to lift her knees up. However, when she did so during the third zip-line, her head fell back and she lost sight of the platform. She was not able to get her legs up and brake early enough. As a result she hit a tree just past the platform, and sustained a comminuted supracondylar fracture of her left femur and left lateral tibial plateau; abscess, insertion and removal of plate with secondary osteomyelitis; oblique fracture extending through the anterior cortex and medial cortex of the left upper tibia; spiral fracture of the proximal left fibula, as well as other injuries and complaints. In this action Clarke claims both general and special damages, including loss of income.

THE RELEVANT TEXT OF THE AGREEMENT

[9] The relevant contractual terms of the agreement are set forth below. The language specifically at issue is underlined.

PARTICIPANT AGREEMENT

(including assumption of risks and agreements of release and liability)

1. ACTIVITIES COVERED

I, the Participant, understand that this agreement includes all activities (hereinafter referred to as “The Canopy Adventure”), events or services provided, arranged, organized, conducted, sponsored or authorized by the RELEASEES or any of them and shall include, but is not limited to the use of traverse cables, suspension bridges; climbing, rappelling; hiking; sightseeing; transfers to/from and at tour site, marshalling, moving about outfitting areas; back country travel; orientation and instructional courses, seminars and sessions; and other such activities, events and services in any way connected with or related to the enrollment and activities contemplated by this agreement.

2. DESCRIPTION OF RISKS

I am aware that participation in Canopy Adventure may involve risks, dangers and hazards including but not limited to: changing weather conditions; changes or variations in the surface or sub-surface, including exposed rock, earth, trees, tree stumps and forest dead fall, streams or creeks and cliffs. Risks include the failure of structures supporting the canopy tour. Risks include inadvertent and unwelcome contact with other persons during the course of the canopy tour, as persons may be jostled or otherwise thrown together. Participants may fall, swing into or otherwise experience abrupt and harmful contact with fixed objects and persons. Injuries may include breaks, sprains, bruises and, in extraordinary situations, even death. Risks may result from failure to remain in designated areas, negligence (failure to use reasonable care) of other participants or guides, and negligence on the part of a Release, including the failure on the part of releases to safeguard or protect me from the risks, dangers and hazards of Canopy Adventure activities. I am also aware that the risks, dangers and hazards referred to above exist on terrain that may be uncontrolled, unmarked and not inspected. These risks are inherent to the activities and cannot be removed without significantly changing the activities’ value and appeal to me. I understand and acknowledge that other risks may be encountered.

3. ASSUMPTION OF RISKS

For myself, and on behalf of any minor for whom I sign below, I acknowledge and assume all risks of the Alaska Canopy tour and related conditions and activities, whether those risks are inherent or not and whether or not they are described above. If the participant is a minor, parent or guardian has explained the risks to the participant, who chooses to participate nevertheless.

… [Participation Requirements and Refund Policy]

6. RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT [found on page 2 of the agreement]

In consideration of the RELEASEES allowing me to participate in the Canopy Adventure and permitting me use of their property, traverse cables, platforms, bridges, trails, structures and equipment (Facilities”), and for other goods and valuable consideration, the receipt and sufficiently of which is acknowledged, I, an adult participant or the parent or guardian of a minor participant, for myself and on behalf of that minor, hereby agree as follows:

A. TO WAIVE ANY AND ALL CLAIMS that I or the minor may have or may in the future have against the RELEASEES and TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury, including death, that I, the minor, or anyone having a relationship to me or the minor may suffer, from either my or the minor’s use of or presence on the Facilities or transportation to or from the Facilities. This release extends to claims arising from any cause whatsoever, including negligence of a Release, breach of contract, or breach of any statutory or other duty of care to protect me or the minor from the risks, dangers and hazards of the activities of the canopy adventure.

B. TO HOLD HARMLESS AND INDEMNIFY THE RELEASEES from any and all liability for any damage to property or personal injury, including death, to any third party, resulting from my use of or presence on the Facilities or transportation to or from the Facilities.

I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING LEGAL RIGHTS WHICH I, THE MINOR CHILD ON WHOSE BEHALF I SIGN, MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST A RELEASEE. I ACKNOWLEDGE THAT BY SIGNING THIS RELEASE, I, AS PARENT OR LEGAL GUARDIAN, AGREE TO ITS TERMS FOR BOTH MYSELF AND FOR THE MINOR.

[Clarke’s signature follows, immediately below]

ISSUES FOR DETERMINATION

[10] The issues for determination are as follows:

(a) Is the waiver valid?

(b) Does the waiver of liability cover the alleged negligence by the defendant?

(c) If so, is there any reason not to enforce the waiver? Specifically, is the waiver unconscionable or against public policy?

[11] On this summary judgment motion I am to decide whether the determination of these issues requires a trial. If so, can a trial be avoided by using the powers enunciated in rule 20.04(2.1) and (2.2), which include weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence. For the purpose of exercising any of these powers a mini trial may be ordered. The court is to determine whether it is in the “interest of justice for such powers to be exercised only at trial”: Rule 20.04(2.1).

[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49, the Supreme Court states:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Implicit in the Supreme Court’s pronouncement is that the “interests of justice” and the goal of reaching a “just result” must be paramount. At paragraph 23 the Supreme Court in Hryniak states, “Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.” These principles are to be applied to the unique factual matrix of each individual case.

ANALYSIS

[13] Standard form waivers of liability are contracts to which the principles of contract law apply. Clarke does not dispute the validity of the contract as a participation agreement, but does dispute the validity of the waiver portion. The first stage of the analysis is therefore to inquire whether the waiver is valid and binding on the plaintiff.

[14] If the waiver is valid, the subsequent analysis to be undertaken derives from Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69. In Tercon, the Supreme Court sets forth the proper analytical approach to be taken when dealing with the enforceability of an exclusion clause contained in a valid contract. At paras. 122-123, Justice Binnie states:

The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court’s assessment of the intention of the parties as expressed in the contract. If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis. If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties” (Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 129 (SCC), [1989] 1 S.C.R. 426] at p.462). This second issue has to do with contract formation, not breach.

If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refused to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.

Is the waiver valid?

[15] Clarke argues that despite her signature, the waiver portion of the agreement is not valid because she did not understand what she was signing. She submits that she was not given time to read the agreement, and because of the short duration of time she was given with the agreement, the manner of its presentation in the middle of the participants’ training session, the title of the agreement (i.e. “Participant Agreement” rather than simply “Waiver”), and the fact that the section of the agreement titled “Release of Liability, Waiver of Claims…” fell on the second page (the back page of the single sheet), she fundamentally misunderstood the nature of the agreement she was signing.

[16] Clarke deposes that the guide did not put any emphasis on what was signed and that she did not understand she was waiving her right to sue for any operator negligence. The defendant would have or should have known that she did not understand the agreement she was signing, which contained both an agreement to go on the zip-line tour (front page) and a release of liability, waiver of claims, and indemnity agreement (back page).

[17] Clarke in her affidavit sworn June 26, 2014, deposes at paragraphs 22 and 24 as follows:

[T]he manner in which the defendant presented the waiver was misleading, at best. The waiver portion is outlined on the back page and presented during a time when thinking about the implication of signing was less than ideal…[A]t no time did I read the participation agreement and in fact there was not enough time to read the agreement.

[18] Alaska Canopy argues that Clarke signed the agreement, and in the circumstances it was not reasonable for it to know or suspect that she did not consent to the terms of the waiver portion of the agreement. Clarke signed and dated the agreement immediately below a warning in bold confirming “I HAVE READ AND UNDERSTOOD THIS AGREEMENT.” Clarke initialled the agreement in eight places. Further, she signed it voluntarily, she did not ask any questions about it, and she did not ask for additional time to read it.

[19] Alaska Canopy further highlights the fact that Clarke is familiar with limitation of liability clauses from her work in the travel industry. Had she looked at the agreement in any detail, she would have known it affected her legal rights.

[20] Clarke did sign the agreement. In Tilden Rent-A-Car Co. v. Clendenning (1978), 1978 1446 (ON CA), 18 O.R. (2d) 601 (C.A.) at page 605, the court adopts the following statement from S.M. Waddams, The Law of Contracts: “One who signs a written document cannot complain if the other party reasonably relies on the signature as a manifestation of assent to the contents, or ascribes to words he uses their reasonable meaning.”

[21] In Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 1997 4452 (ON CA), 34 O.R. (3d) 1 (C.A.) at page 10 the court restated this principle as follows:

As a general proposition, in the absence of fraud or misrepresentation, a person is bound by an agreement to which he has put his signature whether he has read its contents or has chosen to leave them unread. Cheshire, Fifoot & Furmston’s Law of Contract, 13th ed. (1996) at p. 168. Failure to read a contract before signing it is not a legally acceptable basis for refusing to abide by it.

[22] As a result Clarke’s subjective understanding of the contract is not necessarily relevant in and of itself. The law of contract seeks to protect “reasonable expectations” of both the offeror and the offeree, not the subjective beliefs of the parties. An enforceable contract can be entered into without the parties having actual concurrence of intention. As S.M. Waddams explains in The Law of Contracts, Sixth Edition (Toronto: Canada Law Book, 2010) at 142, “it is not what the signer inwardly intends but what he appears to a reasonable promisee to do that is relevant.”

[23] Here, Clarke signed the bottom of the document’s second page, immediately below the final warning clause, which is set in bold and all capitals. She also initialled eight separate declarations in the “Declarations” section immediately above the warning clause on the second page.

[24] The onus is not, as Clarke alleges, on Alaska Canopy to ensure that Clarke has read and understood the provisions of the contract that she voluntarily signs. In Niedermeyer v. Charlton, 2014 BCCA 165 at para. 29, citing an earlier passage by McLachlin C.J.S.C.B.C., as she then was, in Karroll v. Silver Star Mountain Resorts Ltd. (1988), 1988 3094 (BC SC), 33 B.C.L.R. (2d) 160 (S.C.), the court states:

…there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question that such an obligation arises. [emphasis added]

[25] Therefore, if the contents of the document, in this case the agreement, are contrary to what the ordinary person would expect (for example, unusually onerous), or the circumstances are such that it should be clear that the person signing it did not know the terms (for example, it was clear the person signing had not read the terms because they were not afforded enough time or proper conditions to do so), then the party seeking to rely on the document will have reason to know that the person signing did not intend to agree to the terms. As a result the circumstances and conditions under which Clarke was required to sign the agreement are of fundamental importance. There is incomplete evidence speaking to the circumstances surrounding the signing of the agreement.

[26] Such evidence is necessary, given the inherent complexity of the agreement and the potentially confusing language contained within it. Alaska Canopy did not title the agreement simply “WAIVER.” Rather, it combined the waiver with the participation agreement. While it may very well be clear that the participation agreement is also a waiver once the document is read in its entirety, there is no doubt that it would take some time to read and understand the terms of the document in the first place. In my view, the record does not contain sufficient and all necessary evidence regarding the conditions and circumstances under which the agreement was signed in order to determine whether, based on the unique factual matrix of this case, Clarke should be bound by the waiver contained in the agreement. The waiver in this case is different in kind from the waivers considered in the cases presented by the parties. Here, the agreement announces itself as a “Participant Agreement,” and the waiver portion of the agreement is minimized both by the document’s title and by its layout, with the waiver content relegated to the back of the page. Further evidence is necessary to determine if, in the specific circumstances, the plaintiff could reasonably be seen as understanding she was waiving her right to sue for all operator negligence.

Does the waiver of liability cover the alleged negligence by the defendant?

[27] Clarke argues that, even if the waiver is valid and binds her, it does not cover the defendant’s alleged negligence. She submits that, as a result of the typographical error of “Releasee” being misspelled three times in the agreement as “Release,” it is unclear who is being released from liability. “Releasee” is a term defined at the outset of the agreement to include Alaska Canopy and all other tour operators who make their premises available, as well as their employees and agents.

[28] In two clauses (Clause 2 and Clause 6) “Releasee” is misspelled as “Release.” In Clause 2, “DESCRIPTION OF RISKS,” the agreement states that “Risks may result from…negligence on the part of a Release, including failure on the part of the releases to safeguard or protect me…” In Clause 6, “RELEASE OF LIABILITY,” the agreement specifies that the release extends to claims arising from “any cause whatsoever, including negligence of a Release.”

[29] Clarke also submits that it is unclear what is meant by “negligence,” because although negligence is defined in Clause 2 (as “failure to use reasonable care”), no examples are provided. Clarke further submits that it is unclear what specific rights are being waived because the final clause of the agreement above the signature line states “I AM AWARE I AM WAIVING LEGAL RIGHTS” rather than “I AM AWARE I AM WAIVING ALL LEGAL RIGHTS.” Clarke submits that if a waiver is found to be ambiguous, it must be deemed unenforceable.

[30] In addition, Clarke makes a number of submissions regarding what her reasonable expectations would have been (had she read the agreement), and argues in favour of a more restrictive interpretation of the waiver—namely, that it not include waivers for the operator’s negligence or failure to observe “the highest” safety precautions.

[31] Clarke describes the foundation of her reasonable expectations as:

• The high reputation of the cruise company she was travelling with, which recommended Alaska Canopy for the zip-line tour.

• The very fact that the plaintiff was asked to exonerate the defendant for all things. This broad exclusion of liability clause would lead to a reasonable expectation that there would be extensive safety precautions.

• The representation made on the defendant’s website that Alaska Canopy’s safety policies and procedures eclipse the standards established by the Association for Challenge Course Technology. Such violations are contested by Alaska Canopy. The plaintiff does not submit that she had read the website at the time she signed the agreement, or that the website in any way informed her reasonable expectations at the time of signing.

[32] Alaska Canopy submits that the waiver’s language is clear and unambiguous when the agreement is read as a whole. It relies on similar factual circumstances and similar waiver language referred to in the cases of Loychuk v. Cougar Mountain Adventures, 2012 BCCA 122, and Niedermeyer, supra. In those cases waivers were found to cover and apply to the negligent conduct in question. In Niedermeyer the court declined to enforce the waiver due to public policy concerns.

[33] On this summary judgment motion Alaska Canopy requests that the agreement be interpreted such that the waiver contained in the agreement apply to conduct alleged in the plaintiff’s statement of claim. The Supreme Court has recently upheld the contextual approach as the proper method of contract interpretation: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

[34] The Supreme Court stated in Sattva, at para. 48, that “The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.” The meaning of a document is not the same as the meaning of its words (ibid.). The exclusion clause should be interpreted in light of the contract as a whole, its purposes, and the commercial context: Tercon at para. 64.

[35] The issue for determination is whether the exclusion clause, properly interpreted, excludes Alaska Canopy’s liability for Clarke’s injuries sustained while zip-lining.

[36] Under the principle of contra proferentem, any ambiguity in the agreement (contract) requires a clause to be interpreted in favour of the plaintiff and against the party who drafted the agreement: Tercon at para. 79. See also Kempf v. Nguyen, 2013 ONSC 1977 at para. 109.

[37] Ambiguity on its own does not invalidate the contract. As Waddams states at 90, “Only if neither [party] had reason to know the other’s meaning will there be no contract.” Otherwise, the effect of ambiguity is strictly to limit the contract’s application to the reasonable interpretation most favourable to the plaintiff.

[38] As a result a complete factual record is required in order to justly determine the legal rights which are being waived. This is especially so given that the agreement in question is called a “Participant Agreement (including assumption of risks and agreements of release and liability)” and not a “Release of Liability, Waiver of Claims and Assumption of Risks Agreement”; the typographical errors contained in the agreement as well as the fact that there is not a description of the legal rights which are being waived in the bold letters which appear directly above the signature line. A complete record is necessary to justly determine the plaintiff’s reasonable understanding of the purpose and scope of the waiver in the circumstances, and further whether the very terms of the agreement should be limited or restricted based on the factual matrix of this case.

Is the waiver unconscionable or against public policy?

[39] In order for Clarke to establish unconscionability, she is required to identify unequal bargaining power and that Alaska Canopy took advantage of its unequal bargaining position. Clarke does not argue unconscionability per se. She does raise the issue of misrepresentation, although it is not referred to as such. Clarke alleges that during the training, the guide promised that if a participant failed to brake, that person would be stopped by the guide. She does not argue that the waiver, if otherwise valid and enforceable, is against public policy.

[40] Alaska Canopy argues that this “promise” falls under alleged negligent conduct which is covered by the terms of the waiver contained in the agreement.

[41] While the promise like the one Clarke refers to cannot be said to be unconscionable, an innocent misrepresentation of the effect or content of a document can be a sufficient basis for relief from enforceability: Waddams at 345. The principle at play is that “one who induces signature to a document by saying something inconsistent with its contents can never be said to have a reasonable expectation of the other party’s assent”: Waddams at 347.

[42] There is little evidence in the record regarding the specific nature and timing of the discussions which took place. Clarke’s belief about the dangers posed by the zip-line course may have been influenced by this statement about braking, if it is accepted as true and may have contributed to her understanding of the risks when she signed the agreement without reading it.

[43] Regarding unconscionability, Alaska Canopy submits that it is not unfair or unconscionable of an operator to require a waiver as a condition of participating in a risky activity like zip-lining. Clarke was free not to participate in the activity at issue if she was not comfortable with the risks associated with participation.

[44] Alaska Canopy cites Loychuk and argues that such waivers are not against public policy. Reference is made to para. 44 where the court states:

[R]eleases such as the one in issue here have been in use for many years and have consistently been upheld by the courts. If, as the appellants submit, there are policy reasons why such releases should not be enforceable when an activity is totally within the control of an operator, then any change in the law is properly a matter for the Legislature.

[45] In Loychuk at para. 46, the B.C. Court of Appeal held that if the operator “[e]ither knew it was putting the public in danger by providing a substandard product or service, or was reckless as to whether it was doing so,” it would be contrary to the public policy to allow the operator to avoid liability. However, the conduct engaged in must be so reprehensible that it would be contrary to the public interest to allow it to avoid liability. There is no suggestion that Alaska Canopy’s conduct was reprehensible or that there was deception on its part.

DISPOSITION

[46] Alaska Canopy submits there is much evidence regarding what Clarke recalls about the entire process of signing the agreement, and that this evidence is unlikely to materially improve at trial. While there is much evidence, it is not complete. Further, there is no evidence from the guide referred to by Clarke or any other employees present on the date of loss regarding the specific conversations which took place and the conditions and circumstances under which the agreement was executed.

[47] In this case, based on the evidence before me, there is a genuine issue requiring a trial. The full and complete context under which the agreement was signed is necessary in order to fairly and justly interpret the agreement, so that the agreement’s validity, applicability, and enforceability can be properly determined. The interests of justice require a complete evidentiary record. As stated by the Ontario Court of Appeal in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 44, “Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.”

[48] Having found that I cannot decide the issues before me on the record, the issue then becomes whether it is in the interest of justice for me to order a mini trial. While summary judgement must be granted if there is no genuine issue requiring a trial, the decision to use the expanded fact-finding powers of rule 20.04(2.1) and (2.2) is discretionary: Hryniak at para. 68.

[49] In my view, a mini trial would not be appropriate in the circumstances. The Supreme Court stated in Hryniak, at para. 82, that the question of whether it is in the interest of justice for the motions judge to use the rule 20.04 fact-finding powers “depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors.” I have found that I require evidence, if possible, from the guide who was present at the time of signing and from other of the defendant’s employees that can speak to the conditions under which the agreement was signed. There will be significant issues of credibility to be determined with respect to the testimony of the plaintiff and representatives and employees of the defendant regarding the events surrounding the signing of the agreement. There are discrepancies between the evidence of the parties as to what the plaintiff could reasonably have understood about the nature and scope of what she was signing. There are also discrepancies and contradictions within the plaintiff’s own evidence regarding what she did or could have understood at the time.

[50] Further, those employees that can speak to the conditions under which the agreement was signed may well be the same witnesses who would speak to the issue of liability, if the waiver is ultimately found not to be valid, applicable to the circumstances, or enforceable. The issues relating to the waiver arise from the same factual matrix as do those relating to the defendant’s alleged liability. Much of the evidence speaking to the context of the waiver will likely also relate to issues of liability. Many of the potential witnesses live outside Ontario and may have to travel here to speak to the court regarding the circumstances of the signing and of the incident. It is not in the interests of justice to have witnesses provide evidence on a mini trial only for some of the same witnesses to subsequently provide similar evidence at a trial with respect to liability.

[51] In the context of this proceeding, I am not confident that the dispute can be fairly resolved by way of a mini trial. There are genuine issues requiring a trial as regards the release, its scope, and the circumstances of signing, and in my opinion “even with the enhanced powers granted to the judge under Rule 20, a just and fair adjudication cannot be had on this summary judgement motion”: O’Reilly v. Purolator Courier Ltd., 2014 ONSC 3266 at para. 40.

[52] As a result of the additional evidence required and the stage of the proceedings, a mini trial would not serve the goals of timeliness, affordability, and proportionality in the light of the litigation as a whole (Hryniak at para. 66). In this case, given the lack of necessary and complete evidence coupled with the conflicting evidence in the record and the credibility issues at play, the interests of justice require that the validity, applicability, and enforceability of the agreement be determined at trial, where the necessary witnesses can be called.

[53] For the reasons set forth above, Alaska Canopy’s motion for summary judgment is dismissed. The Supreme Court of Canada directs in Hryniak, at para. 78, that when a motions judge dismisses such a motion, in the absence of compelling reasons to the contrary, she or he should remain seized of the matter. As directed, I shall remain seized of this matter and case manage the action as necessary.

[54] I wish to thank counsel for both their written and oral submissions, which were exceptional. I encourage the parties to agree on costs. If they cannot, I may be contacted in order to set a timetable for costs submissions.

Firestone J.

Released: December 2, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHRYN CLARKE

Plaintiff (Responding Party)

– and –

ALASKA CANOPY ADVENTURES LLC and ALASKA RAINFOREST SANCTUARY LLC

Defendants (Moving Parties)

REASONS FOR DECISION

Firestone J.

Released: December 2, 2014