ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-424955

DATE: 20151127

BETWEEN:

DR. RITA KILISLIAN, ANDREW CURNEW and DR. RITA KILISLIAN DENTISTRY PROFESSIONAL COPORATION

Plaintiffs

– and –

COPPER CREEK GP INC., operating as COPPER CREEK GOLF CLUB and COPPER CREEK LIMITED PARTNERSHIP operating as COPPER CREEK GOLF CLUB

Defendants

Joseph Sereda, for the Plaintiffs

Neil G. Wilson, for the Defendants

HEARD: November 13, 2015

M. D. FAIETA j.

REASONS FOR DECISION

INTRODUCTION

[1] The Plaintiffs, Dr. Rita Kilislian and Andrew Curnew, held their wedding reception at the Defendants’ Cooper Creek Golf Club in Vaughan, Ontario on April 25, 2009. Unfortunately, on that day severe thunderstorms swept through southern Ontario. Trees and power lines were knocked down. The storm left about 100,000 customers without electricity, including Copper Creek. The wedding reception was delayed about 2 ½ hours. During the outage there was emergency lighting in the main foyer. Food and drinks were served to the guests. An automobile was driven into the main foyer to provide music. Dinner started at 7:45 p.m. once the supply of electricity resumed. The reception continued until 1:00 a.m.

[2] The Plaintiffs commenced this action on April 21, 2011. They claim damages in the amount of $200,000 for misrepresentation and breach of contract; damages in the amount of $200,000 arising from the Defendant’s negligence; and damages in the amount of $100,000 for emotional distress. The Plaintiffs claim that the power outage prevented the traditional receiving of guests, prevented any picture taking with friends or family at Copper Creek, prevented the adequate serving of hors d'oeuvres or cocktails, prevented musicians from being able to perform and delayed the commencement of the reception by about 2 ½ hours. The Plaintiffs state that they each suffered nervous shock and emotional distress both on the evening in question and on an ongoing basis as a result of the power outage.

[3] The Defendants bring this motion for summary judgment to dismiss the Claim on the basis that it raises no genuine issue requiring trial for the following reasons:

(1) the Claim is barred because a written claim was not made to the Defendants within 48 hours of the event as required by the catering agreement;

(2) the Claim is barred because the caterer is not liable for damages due to utility shortages, acts of God, or any other cause beyond the caterer’s control under the catering agreement;

(3) there is no evidence of a breach of contract;

(4) there is no evidence of negligence.

[4] For the reasons described below, I grant this motion for summary judgment. The Defendants are not liable in breach of contract or negligence. Had I found the Defendants liable in breach of contract or negligence, then I would have dismissed the Claim on the basis of the exclusion clause contained in the catering agreement.

ANALYSIS

[5] The applicable principles on a motion for summary judgment are as follows:

• a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[^1]

• the onus is on the moving party to show that there is no genuine issue requiring a trial;

• the summary judgment process must:

(a) allow the judge to make the necessary findings of fact,

(b) allow the judge to apply the law to the facts, and

(c) be a proportionate, more expeditious and less expensive means to achieve a just result.[^2]

• each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried;[^3]

• a court may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weigh the evidence.

2. Evaluate the credibility of a deponent.

3. Draw any reasonable inference from the evidence.

4. Order that oral evidence be presented by one or more parties for the purposes of exercising the above powers.[^4]

• If the court cannot grant judgment on the motion, the court should:

(a) decide those issues that can be decided in accordance with the principles described above;

(b) identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) in the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.[^5]

[6] Examinations for discovery have been completed. On this motion the Plaintiffs relied upon the Affidavit of Andrew Curnew, sworn September 24, 2015, and the Defendants relied upon the Affidavit of Chris Neale, sworn July 30, 2015, and the Affidavit of Spencer Wong, sworn October 29, 2015.

[7] The Plaintiffs state that this motion for summary judgment is not appropriate because it is not document driven nor are there limited contentious factual issues related to establishing the alleged negligence of the Defendants. However, it is my view that this is an appropriate case for summary judgment because the outcome of the motion largely turns on the interpretation and application of the exclusion of liability clause found in the catering agreement.

ISSUE #1: DOES THE EXCLUSION CLAUSE BAR THE PLAINTIFF’S CLAIM?

[8] A catering agreement for a “dinner and dance”, addressed to Dr. Rita Kilislian, Kilislian Dentistry Professional Corp., was signed by Mr. Curnew on his own behalf, as well as on behalf of the other Plaintiffs.[^6]

[9] Just above the signature line, the catering agreement states:

We shall not be liable for damages or otherwise due to labour troubles; strikes; government regulations; utility shortages; acts of God, or any other cause beyond our control. [Emphasis added.]

[10] In Tercon Contractors v. British Columbia (Minister of Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 121‑123, the Supreme Court of Canada stated that effect will be given to an exclusion clause in a contract when the following conditions are satisfied:

• on its proper interpretation, the exclusion clause applies in the circumstances;

• the exclusion clause was not unconscionable at the time that the contract was made;

• the very strong public policy interest in the enforcement of a valid exclusion clause is not outweighed by another overriding public policy.

[11] The Defendants rely on the exclusions for damages due to utility shortages, acts of God and any other cause beyond their control. The Plaintiffs submit that these exclusions are inapplicable because the Plaintiffs’ damages were not due to any of these three events but rather they were due to the Defendants’ failure to have an emergency electricity generator available that would have provided an uninterrupted supply of electricity after the supply of electricity from the public utility was interrupted.

(1) Does the Exclusion Clause Apply?

[12] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at paras. 47‑48, the Supreme Court of Canada stated that the interpretation of a contract has evolved towards a practical, common-sense approach that is not dominated by technical rules of construction.

[13] One meaning of the word “utility” is “a public utility”, which in turn means “an organization supplying the community with electricity, gas, water or sewerage.”[^7] Accordingly, a “utility shortage” means the shortage of electricity, gas, water or sewerage services that is provided by a public utility.

[14] The Plaintiff submits that its damages were not due to a “utility shortage” but rather the failure of the Defendants to have a backup generator.

[15] In my view, the gloss placed on the scope of this exclusion suggested by the Plaintiffs is not supported by the ordinary meaning of the word “utility” nor is it supported by the circumstances at the time of the formation of the contract.

[16] First, had the intention of the contract been that the Defendants would not be relieved for liability from damages due to the interruption of the supply of electricity from the public utility that served Copper Creek unless an emergency generator had been installed, then such a limitation would have been reflected in the wording of the exclusion clause.

[17] Second, at the time of the formation of the agreement, Copper Creek did not have a generator.

[18] In my view, the interruption of the supply of electricity by Vaughan Hydro to Copper Creek on the day of the reception was a “utility shortage” within the meaning of the catering agreement.

“Acts of God”

[19] An act of God is “…an overwhelming, unpreventable event caused exclusively by forces of nature, such as earthquake, flood or tornado”.[^8]

[20] The limited scope of the defence of act of God has been explained in Canadian tort law commentary.[^9]

[21] Similarly in Atlantic Paper v. St. Anne‑Nackawic Pulp and Paper, the Supreme Court of Canada stated that an act of God is “…something beyond reasonable human foresight and skill.”

[22] The storm on the day of the reception was described by Environment Canada as one of Canada’s top weather stories for 2009.

[23] The storm also knocked down a number of trees on the Copper Creek property.

[24] In my view, the thunderstorm and associated winds were an unusual occurrence that could not be reasonably anticipated or provided against. Accordingly, I find that the thunderstorm on the day of the reception was an “act of God” within the meaning of the catering agreement.

“Any Other Cause Beyond our Control”

[25] The Defendants assert that the thunderstorm and power outage were “other causes beyond” their control.

[26] Had I not found that the thunderstorm was an “act of God” or that the interruption of the supply of electricity to Copper Creek was a “utility shortage”, then I would have found that those two circumstances come within the phrase “any other cause beyond our control”.

(2) Is the Exclusion Clause Unconscionable?

[27] In Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573, the Court of Appeal adopted a multi‑factor approach to determine whether a contract is unconscionable.

[28] In my view, not all of the above elements have been satisfied in this case.

[29] It was not grossly unfair for the Defendants to exclude liability for damages suffered by the Plaintiffs as a result of utility shortages, acts of God, and other causes beyond the Defendants’ control.

[30] There is no evidence that the Plaintiffs lacked independent legal advice or other advice.

[31] There was no imbalance in bargaining power.

[32] Finally, given that there was no imbalance in bargaining power, there were no vulnerabilities of the Plaintiffs for the Defendants to take advantage.

(3) Is the Enforcement of the Exclusion Clause outweighed by Public Policy?

[33] A Court may refuse to enforce an exclusion clause if there is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts.

[34] No such public policy has been advanced by the Plaintiffs.

ISSUE #2: IS THE CLAIM BARRED BECAUSE THE PLAINTIFFS DID NOT FILE A CLAIM WITHIN 48 HOURS?

[35] The catering agreement contains the following notice condition:

All claims for alleged defects in the performance of the Club shall be deemed waived and released unless made in writing within 48 hours of your event.

[36] The event was held on April 25, 2009. The Plaintiffs submit that an email sent by Curnew to the Defendants on May 1, 2009 constituted written notice.

[37] There is nothing in that email which makes a claim for compensation or indicates any concern whatsoever for breach of the contract or negligent conduct.

[38] In any event, this email was delivered more than 48 hours after the event.

Can Relief from Forfeiture be Granted?

[39] This notice provision results in the forfeiture of what otherwise may have been a valid cause of action. Relief may be available under s. 98 of the Courts of Justice Act.

[40] The Court’s authority to grant relief from forfeiture was explained by the Court of Appeal in Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363.

[41] In my view, relief from forfeiture is available in respect of the breach of the above notice condition.

Should Relief from Forfeiture be Granted?

[42] To obtain relief, the plaintiffs must demonstrate that their conduct was reasonable, the breach was not grave, and there is disparity between the forfeited interest and the damage caused.[^12]

[43] In my view, the Plaintiffs have provided no reasonable explanation for their failure to provide written notice within 48 hours.

[44] Accordingly, even if the email had provided sufficient notice, I would not have granted relief from forfeiture.

ISSUE #3: DID THE DEFENDANTS BREACH THE CATERING AGREEMENT AND WERE THEY IN BREACH OF THE DUTY OF CARE?

[45] The Plaintiffs allege numerous failures including not installing backup power, poor staff conduct, failure to mitigate damages, and failure to secure wedding gifts.

[46] The Defendants respond that they took steps to accommodate guests, provided appetizers and drinks, used emergency lighting, attempted to rent generators, and deny theft of gifts.

[47] The Defendants submit that they did not breach the catering agreement because it did not require a power generator.

[48] I find there was no contractual requirement for a backup generator. Such a term cannot be implied into the agreement.

[49] The Plaintiffs also allege negligence for failure to install backup power.

[50] Applying the negligence test described in Ryan v. Victoria (City), I find insufficient evidence that the Defendants created an objectively unreasonable risk of harm.

[51] Both parties filed evidence regarding industry practice.

[52] Much of the evidence is inadmissible hearsay. The only admissible evidence indicates that industry practice for golf clubs with banquet facilities is not to install backup generators.

[53] Accordingly, I find the Defendants were not negligent in failing to install a backup generator.

CONCLUSIONS

[54] The wedding reception occurred more than six years ago. Discoveries have been held and the parties had ample opportunity to advance their best case.

[55] On a summary judgment motion, parties must “put their best foot forward”, as stated in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996).

[56] I grant the Defendants’ motion for summary judgment as there is no genuine issue requiring trial. The exclusions for “utility shortages” and “acts of God” exempt the Defendants from liability. In addition, the claim is barred by the notice provision, and the Plaintiffs failed to establish breach of contract or negligence.

[57] The Defendants seek costs. I order that the Plaintiffs pay the Defendants their costs of this motion in the amount of $6,500.00, inclusive of disbursements and taxes, within 30 days.

Mr. Justice M. D. Faieta

Released: November 27, 2015

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2)(a).
[^2]: Hryniak v. Maudlin, 2014 SCC 7, para. 49.
[^3]: Canada (Attorney General) v. Lameman, 2008 SCC 14, para. 11.
[^4]: Rule 20.04(2.2).
[^5]: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, para. 33.
[^6]: Confirmed on Examination for Discovery of Dr. Kilislian.
[^7]: Concise Oxford English Dictionary, 12th ed.
[^8]: Black’s Law Dictionary, 10th ed.
[^9]: Linden & Feldthusen, Canadian Tort Law, 10th ed.
[^12]: Kozel v. Personal Insurance Company, 2014 ONCA 130, para. 59.