ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-44665400A1
DATE: 20150829
BETWEEN:
INEZ MARTINCEVIC
Plaintiff
– and –
KING WEST FITNESS INC. and MARCELLA BARIC
Defendants
– and –
REEBOK INTERNATIONAL LTD. and REEBOK CANADA
Third Parties
Ashley Richards and Ivana Bozinovic, for the Defendants
Brian G. Sunohara, for the Third Parties
HEARD: August 24, 2015
K. HOOD J.
REASONS FOR DECISION
[1] On October 15, 2011, the plaintiff while participating in a fitness program at the defendant club, King West Fitness Inc. (King West) suffered an injury. The fitness instructor supervising the fitness program was the defendant Marcella Baric (Baric).
[2] The fitness program is called Jukari Fit to Fly and was developed by the third parties, collectively Reebok.
[3] The plaintiff commenced an action against King West and Baric alleging that they were negligent, in that among other things, Baric was not adequately trained and did not provide adequate or proper instruction to the plaintiff concerning the Jukari fitness program.
[4] King West and Baric third partied Reebok, essentially alleging that Reebok provided inadequate and negligent training to Baric and is therefore liable.
[5] The plaintiff settled with the defendants following a mediation.
[6] Reebok served a motion seeking summary judgment dismissing the third party claim relying on its contract with King West. Reebok argues the contract provides that King West is to indemnify and hold Reebok harmless for claims like the one made by the plaintiff.
[7] Subsequently, Reebok served an amended notice of motion seeking alternative relief, limiting Reebok’s maximum liability to King West to a nominal amount.
[8] I am dismissing Reebok’s motions. I find that the contract does not allow Reebok to seek indemnity from King West for its own negligence. As to the argument limiting Reebok’s maximum liability, this is being dismissed without prejudice to Reebok if it brings another motion if so advised or argues this matter at trial.
[9] Reebok relies upon paragraph 3(a) of the Club Partner Agreement dated March 2, 2011:
Indemnification by Club Partner. Club Partner will indemnify and hold Reebok and CDS and each of their respective directors, officers, employees, agents and affiliates harmless from and against any and all claims (including without limitations liability and injury claims) and damages arising out of or relating to (i) any inaccuracy or breach of Club Partner’s representations, warranties, covenants or other obligations hereunder, including, without limitation, Club Partner’s obligation to install the Equipment in accordance with the Structural Requirements; (ii) any activities at the Facility or sponsored by the Facility and the promotion, marketing or advertising thereof, or (iii) any use of the Licensed Rights by Club Partner other than as expressly permitted hereunder.
Specifically, before me Reebok relies upon subparagraph (ii) and the wording “any activities at the Facility” as a requirement that King West indemnify it for the plaintiff’s claim. King West is the Club Partner.
[10] For Reebok to shift the risk of its own negligence to King West and to Baric successfully, the contract must say so in the clearest terms. As stated in Fenn v Peterborough (City) (1979), 1979 77 (ON CA), 25 O.R. (2d) 399 at paragraphs 35 and 36:
“…we know of no authority which allows a party to be indemnified for its own negligence in the absence of a contractual right thereto and we were referred to none.
If one is to be protected against and indemnified for one’s own negligence there would have to be an indemnity clause spelling out this obligation on the other party in the clearest terms.”
This decision of the Court of Appeal was affirmed by the Supreme Court and the above quoted statements were specifically adopted.
[11] Paragraph 3(a) does not spell out the obligation claimed by Reebok in the clearest terms. If this is what Reebok wanted this could have been added to the contract. I find it too much of a stretch to argue “any activities at the Facility” includes what transpired here, where the plaintiff was injured participating in a fitness program developed and designed by Reebok and where the instructor Baric was trained by Reebok. These are the matters at issue in the third party proceeding.
[12] I further find that the paragraph being relied upon by Reebok is ambiguous and must be construed against the drafter Reebok.
[13] The case relied upon by Reebok, Stojanovic v Zellers Inc., 2012 ONSC 4924 is different in that the indemnity provision in the contract between Zellers and the supplier of the floor mat specifically referred to the very issue between Zellers and the supplier in their third party proceeding – the provision of defective product.
[14] Reebok’s alternative argument is that Reebok’s liability under the Agreement is capped or limited at a nominal amount, pursuant to paragraph 3(g) of the Agreement.
[15] This argument was first raised on August 7, 2015, when Reebok delivered an Amended Notice of Motion along with its factum. No mention is made of this defence in the Third Party Defence. Reebok argues that in its pleading it relies upon the Agreement and therefore this paragraph. However, in the Third Party Defence Reebok makes specific reference to those paragraphs it relies upon, such as paragraph 3(a). No mention is made of paragraph 3(g) which contains the alleged limitation.
[16] No mention is made of this paragraph or this argument in Reebok’s motion record. It isn’t dealt with on discovery. There is no evidence of the fees paid by King West to Reebok in the motion material. I find that there is no supporting affidavit material or other evidence to grant or consider summary judgment on this alternative argument.
[17] I am not foreclosing this, however. If Reebok wishes to bring a summary judgment on proper material and notice it may do so. Alternatively, Reebok may wish to amend its pleadings and deal with this at trial.
[18] In reviewing the motion material and Agreement, I note that paragraph 6(e) provides that the Agreement is governed by the laws of Massachusetts and the jurisdiction and venue of all litigation matters relating to the Agreement is vested in the courts of Massachusetts.
[19] This paragraph was not argued or referred to by the parties before me. I presume that the parties felt this paragraph did not apply in the circumstances or the law in Massachusetts was the same as in Ontario for the issues before the court.
[20] Being successful on the motion the defendants are presumptively entitled to their costs. If the parties are unable to agree on costs, they may make brief submissions in writing of no more than three pages, beginning with the defendants’ submissions within 15 days of the release of these reasons followed by the third parties’ submissions within a further 15 days thereafter.
K. HOOD J.
Released: August 29, 2015
COURT FILE NO.: CV-12-44665400A1
DATE: 20150829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
INEZ MARTINCEVIC
Plaintiff
– and –
KING WEST FITNESS INC. and MARCELLA BARIC
Defendants
– and –
REEBOK INTERNATIONAL LTD. and REEBOK CANADA
Third Parties
REASONS FOR DECISION
K. HOOD J.
Released: August 29, 2015