Court File and Parties

Court File No.: CV-16-127306 Date: 2019-01-03 Ontario Superior Court of Justice

Between:

Fatemeh Hosseinkhani, Manuchehr Rasouli, Mohamed Reza Rasouli and Behnoush Rasouli

Plaintiffs

– and –

QK Fitness Inc., 208303 Ontario Ltd. and Helen Doe

Defendants/Moving Party

Counsel:

M. Wasserman, for the Plaintiffs

M. Kealy, for the Defendants/Moving Party

Heard: December 7, 2018

Reasons for Decision

Charney J.:

Introduction

[1] The defendant, QK Fitness Inc. (QK), brings this motion for summary judgment to dismiss the plaintiff’s action.

[2] The plaintiff, Fatemeh Hosseinkhani, was injured when she tripped and fell on a dumbbell during a gym class at the defendant’s gym. She sued the defendant for negligence.

[3] The defendant argues that the plaintiff is the author of her own misfortune, and there is no basis for finding the defendant negligent. In the alternative, the defendant argues that the membership agreement signed by the plaintiff included a clause excluding liability and releasing QK from this type of claim. Both of these issues, the plaintiff asserts, can be decided on a summary judgment motion.

[4] The plaintiff argues that this is not an appropriate case for summary judgment because there are genuine issues for trial, and that the motion for summary judgment should be dismissed.

Facts

[5] The following facts are not in dispute:

[6] The plaintiff, Fatemeh Hosseinkhani, joined the defendant gym on a trial membership in November 2013. The plaintiff joined QK in February 2014 on a one-year membership agreement. Upon joining she was given a tour of the facility. At the conclusion of the tour, the plaintiff was presented with a contract to sign.

[7] Clause 3.3 of the “Membership Agreement – Terms and Conditions” (the Agreement) is entitled “Exclusion of Liability”. It is on the reverse side of the Agreement, and provides:

The Member/Buyer releases the Club, its related companies, their respective directors, officers, employees and agents of and from any claim whatsoever hereafter arising by reason of the Member/Buyer suffering disease, deterioration of health, illness, or aggravation of condition or of ill health as a result of participation in the programmes, acceptance of advice or use of the facilities provided by the Club or any claim for personal injury sustained by the Member/Buyer in, on or about the facilities of the Club and its related companies, including and without limitation any claims for personal injuries resulting from and/or arising out of the negligence of the Club, its related companies, their respective directors, officers, employees and agents or any claim for personal injury resulting from the negligence or advice of any other person using the facilities of the Club and acknowledges that he/she is using the said facilities at his/her own risk.

[8] On August 8, 2014, the plaintiff, then 59 years of age, participated in an exercise class operated by QK. The plaintiff had been participating in this class about once every two weeks for the preceding eight months. There were approximately 25 participants in the class. The exercise class required the use of two dumbbells and a low step. The class took place in a room with a laminated hardwood floor.

[9] There were not enough hexagonal plastic covered dumbbells, so the plaintiff used a pair of circular metal dumbbells that were located in the room where the exercise class was being taught. Each dumbbell weighed between 5 and 8 pounds. The plaintiff would usually use the hexagonal dumbbell, but had occasionally used the circular ones. The defendant agrees that these circular metal dumbbells were available in the gym and were intended to be used by people taking the exercise class.

[10] Some exercises involved using the step, others required use of the dumbbells, and some required the use of both. About 20 minutes into the class, during an exercise involving the step and not the dumbbells, the plaintiff placed her dumbbells about 18 inches in front of her on the right-hand side as instructed by the fitness instructor. The dumbbells were laid to rest on their side. The plaintiff thought that they were safely out of her way.

[11] The plaintiff was instructed to step off the step to her right. The plaintiff believes that one or both of the dumbbells rolled from its original position, and she stepped on one or both of them. This caused her to lose her balance and fall on her back.

[12] The instructor, who is also named as a defendant, did not instruct the plaintiff to use a different set of dumbbells, or how to place the round dumbbells when they were not in use. The instructor testified on cross-examination that she did not provide instruction on the use of the dumbbells, but if she saw that the round dumbbells were placed on their side she would try to go over to correct it. The instructor indicated that she has taught thousands of classes and that the round dumbbells were used all the time in exercise classes, and she has never before had a problem with them in her class.

[13] During the exercise the instructor walked across the floor to check on each member’s form. While walking the floor she heard someone yell “oh my god”, and saw the plaintiff on the ground to the right of her step.

[14] A class participant called 911. The plaintiff was rushed to the hospital by ambulance. The plaintiff alleges that she was diagnosed with a burst fracture of her T12 vertebrae, although the issue of damages is not relevant to the summary judgment motion and I make no finding in that regard.

[15] The plaintiff commenced this action on July 11, 2016, claiming $5,000,000 damages and $1,000,000 damages for her husband and their two adult sons pursuant to Part V of the Family Law Act, R.S.O, 1990, c. C.43.

Motions for Summary Judgment

[16] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides: “The 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.”

[17] Rule 20.04(2.1) sets out the court’s powers on a motion for summary judgment:

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[18] These powers were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, where it laid out a two-part roadmap for summary judgment motions at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[19] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50).

[20] In Hryniak, the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment 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.”

[21] To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial.

[22] The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

[23] Pursuant to Rule 20.02(1), affidavits may be made on information and belief, but the court may, if appropriate, draw an adverse inference from a party’s failure to provide evidence of any person having personal knowledge of contested facts.

[24] This adverse inference is particularly appropriate in cases in which a party is relying on an expert’s opinion in a motion for summary judgment. A party should not be permitted to “shield its expert from cross-examination through the use of an ‘information and belief’ affidavit of someone completely unqualified to testify on the issue”, Suwary v. Women’s College Hospital, [2008] O.J. 883 (S.C. at para. 30) and Dupont Heating & Air Conditioning Limited v. Bank of Montreal, [2009] O.J. No. 386 (S.C. at para. 51 and cases cited therein); Ghaffari v. Asiyaban, 2013 ONSC 387, at para. 18; Diao v. Zhao, 2017 ONSC 5511, at para. 20.

[25] Where summary judgment is refused or is granted only in part, Rule 20.05 provides that “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and give directions or impose such terms as are just.

[26] It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward” (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9). Given the onus placed on the moving party to provide supporting affidavit or other evidence under Rule 20.01, “it is not just the responding party who has an obligation to ‘lead trump or risk losing’” (see Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28).

[27] See also: Crawford v. Toronto (City), 2018 ONSC 1729, at para. 38:

Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.

[28] A plaintiff or defendant bringing a motion for summary judgment does not thereby reverse the onus of proof. See for example, Sanzone v. Schechter, 2016 ONCA 566, at paras. 30-32, confirming the initial evidentiary obligation borne by the moving party (in that case the defendant) on a summary judgment motion.

[29] On a motion for summary judgment the judge may grant judgment in favour of a responding party, even in the absence of a cross-motion for such relief: Singh v. Trump, 2016 ONCA 747, at para. 147. See also: Baig v. Meridian Credit Union, 2016 ONCA 150, at para. 17; Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922, at paras. 50-52; Demide v Attorney General of Canada et al., 2015 ONSC 3000, at paras. 31-38.

[30] While Rule 20.04 provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6 (and cases cited therein).

Position of the Defendant

[31] The defendant argues that there is no genuine issue for trial. The defendant cannot be held liable because the plaintiff signed the waiver in clause 3.3 of the Agreement. In the alternative, the evidence demonstrates that the plaintiff is the sole author of her own misfortune, and the plaintiff cannot be held liable in negligence.

[32] The plaintiff signed the Agreement on February 24, 2014. On cross-examination she acknowledged that she knew that she had to sign the Agreement to work out at the gym. She did not have any questions and did not ask any questions when she signed the Agreement. She stated that she just wanted to pay her money, sign the Agreement and do her exercises. She was given an unsigned copy of the agreement, which she took away with her.

[33] Although the plaintiff’s first language is Farsi, she has been in Canada for 21 years and is able to read and speak English. While she had a Farsi translator at her cross-examination, she frequently answered questions in English without waiting for the interpreter. She was able to read clause 3.3 of the Agreement at her cross-examination, and understood that it meant that the gym was not responsible if something happened to the person who signed the agreement.

[34] The defendant takes the position that the plaintiff made the simple mistake of placing the round dumbbells on their sides, rather than on their flat ends. It should be obvious to anyone that round dumbbells placed on their side can roll, but round dumbbells placed on their flat end will not roll. The plaintiff did not need anyone to tell her this.

[35] The plaintiff admitted during cross-examination that it would have made sense to put the round dumbbells on their flat ends rather than on their side, and that no one had to explain to her that round dumbbells placed on their side might roll.

[36] The defendant argues that the plaintiff is the sole author of her own misfortune. She is the person who placed the round dumbbell on its side rather than on its flat end. Since the plaintiff knew that a round dumbbell placed on its side could roll, and the plaintiff’s only complaint is that she was not warned by the instructor not to place the round dumbbell on its side, the defendant cannot be liable for negligence.

Position of the Plaintiff

[37] The plaintiff takes the position that she had no opportunity to actually read the Agreement before she signed it. She stated that the person at the desk just asked her to give the money and sign the paper. The Agreement was not explained to her, and she simply signed what was given to her. She alleges that while she has a “practical knowledge” of English and can speak English in conversation, she requires assistance to comprehend certain words.

[38] The plaintiff testified that no one brought the exclusion of liability clause to her attention when she signed the Agreement. There is no evidence to contradict her on this point. The defendant has been unable to produce the employee who was present when the plaintiff signed the Agreement.

[39] The plaintiff takes the position that whether the exclusion of liability was brought to her attention when she signed the Agreement, and her ability to understand the Agreement when she signed it, are material facts in dispute, which should only be determined after a trial.

[40] The plaintiff has pointed to other factual disputes: whether the dumbbells were located inside or outside the exercise room, and whether the plaintiff arrived to the exercise class early or late. The plaintiff takes the position that these facts go to the issue of contributory negligence.

[41] The defendant responds that the location of the dumbbells and the time the plaintiff came to the class may be in dispute, but are not material facts. It concedes that the round dumbbells were available to class participants to use regardless of whether they were located inside or outside the exercise room, and regardless of whether the participants came to the class early or late. Indeed, the defendant’s evidence is that the round dumbbells were used regularly by the plaintiff and others. The defendants’ position is that the round dumbbells were safe to use if placed on their flat end when not in use, and that common sense was all that was needed to know that. Given these concessions by the defendant, I agree with the defendant that neither the location of the dumbbells nor the time the plaintiff arrived to the class are material to the legal analysis to be undertaken.

[42] The plaintiff argues that the defendant had a duty of care to properly instruct the plaintiff on the safe use of the gym equipment, including the round dumbbells, and that they failed in this duty. The defendant knew that the round dumbbells could roll if placed on their side, but never gave the plaintiff instructions on the proper and safe use of the round dumbbells.

Admissibility of Expert Evidence

[43] An additional issue raised on this motion relates to the admissibility of the evidence of Dr. Don Donderi, a psychologist and “human factors” expert. Dr. Donderi’s expert report, filed on behalf of the plaintiffs, was appended as an exhibit to the supplementary affidavit of John Lykos, an associate of the law firm representing the plaintiffs, filed October 12, 2018.

[44] Dr. Donderi’s report reviews the testimony given by Ms. Hosseinkhani during her cross-examination, and explains why her answers appear to contradict the plaintiff’s position on the issue of negligence. The plaintiffs assert that the purpose of Dr. Donderi’s evidence is to explain why it would not be fair to judge Ms. Hosseinkhani by her answers given at her cross-examination.

[45] The defendant objects to the admissibility of this evidence on three grounds.

[46] The first is that the affidavit was served after the plaintiff had cross-examined the defendant Helena Di Cintio (identified as Helen Doe in the style of cause) on June 20, 2018. Rule 39.02(2), prohibits a party from filing additional affidavits on a motion without leave or consent once the party has cross-examined on an affidavit of an adverse party. Rule 39.02(2) provides:

A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing…without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit…

[47] The second ground is that the expert did not file his own affidavit, but his affidavit was appended to the affidavit of a lawyer in the law firm representing the plaintiffs in this action.

[48] In Sanzone, the Ontario Court of Appeal discussed how expert evidence should be adduced on a motion for summary judgment, at para. 16:

As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206…at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060 … at para. 29, aff’d 2014 ONCA 887. [Emphasis added.]

[49] This is consistent with earlier decisions like Suwary v. Women’s College Hospital, which held that a party should not be permitted to “shield its expert from cross-examination through the use of an ‘information and belief’ affidavit of someone completely unqualified to testify on the issue”.

[50] In this case, the plaintiff’s counsel states that even though Dr. Donderi did not file his own affidavit, they offered to make him available for cross-examination, but the defendants declined this offer.

[51] Finally, the defendant argues that Dr. Donderi’s report is inadmissible because it goes to the credibility or weight to be given to the plaintiff’s answers on cross-examination and is not necessary to assist the trier of fact.

[52] In my view, the Donderi Report would be inadmissible on the basis of any of these three grounds, but I will deal only with the third ground.

[53] Proposed expert evidence must meet the four preconditions established by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R 9, before being admitted for consideration by the trier of fact. These criteria are: (i) relevance, (ii) necessity in assisting the trier of fact, (iii) absence of an exclusionary rule (other than the opinion rule), and (iv) a properly qualified expert. Provided the applicant satisfies the court as to the existence of the four Mohan criteria, the court will go on to consider whether the proposed opinion evidence is sufficiently beneficial to the trial process to warrant admission, despite the “potential harm to the trial process that may flow from the admission of the expert evidence”: R. v. Abbey, 2009 ONCA 624, at para. 76.

[54] Dr. Donderi’s Report reviews the answers given on cross-examination by Ms. Hosseinkhani and Ms. Di Cintio. Based on these answers, he concludes, in Part 4 of his Report, that the accident was caused by factors beyond the control of the plaintiff. These conclusions relate to the shape of the dumbbells, and his conclusion that the round dumbbells might have fallen over even if they were placed on their flat end as a result of vibrations in the exercise room. His conclusions have nothing to do with his expertise as a psychologist. Counsel for the plaintiff acknowledges that his conclusions “do not touch on psychology” and are beyond his expertise.

[55] Counsel for the plaintiff relies instead on a paragraph found in Part 3 of the Report, which is headed “What Led to the Accident?” Under this heading Dr. Donderi states:

HK [Ms. Hosseinkhani] was asked to explain why she did not stand the dumbbells on their flat ends when she put them down. It was suggested that HK knew that “if you put a round dumbbell on a flat surface, it could roll”. Her response was: “You never think about it.” HK is right; in the middle of an exercise class, you don’t pose questions to yourself – as HK’s questioner did. Knowing the answer to a question posed to you during a cross-examination for discovery is not the same as staying alert to match your movements to those of DC, the teacher, during an exercise class. What HK was doing in that class is called “sense-dominated behavior”, answering a question during a discussion is called “mediated behaviour”. In an exercise class, what is happening in real time: sense-dominated behaviour, has precedence over mediated-behaviour, which is what happens when you stop to think about something that you might have learned previously.

[56] While I do not question Dr. Donderi’s qualifications as an expert in psychology and “human factors”, this evidence fails the test of necessity. While he has attached fancy labels to the behaviour he describes, the distinction between answering a question on cross-examination and actually engaging in an activity is well within the experience of judges and all triers of fact. “[E]xpert evidence is not required to explain or elaborate on the obvious”: R. v. Suarez-Noa, 2018 ONSC 6925, at para. 61. At its core I understand Dr. Donderi’s evidence to be that people may react differently in spontaneous real life experiences than in cross-examination when they are focusing on the questions being asked and trying to give the best answer they can. If that is all that he is saying – and I think that it is – the trier of fact does not need an expert to provide this opinion.

[57] We know that an individual’s immediate reaction to a situation does not always correspond to what that individual would do if time permitted a reasoned response. That is why tort law measures an individual’s actual conduct against that of a reasonable person.

[58] Further, the proposed evidence of Dr. Donderi touches upon one of the exclusionary rules. It is not open to an expert witness to opine, as Dr. Donderi purports to do, whether the answer given by a witness on cross-examination is “right”. The credibility of a witness is exclusively reserved for the trier of fact. As noted by the Supreme Court of Canada in R. v. Marquard (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193, at p. 228, it is “a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion”. “The rule against oath-helping, that is, adducing evidence solely for the purpose of bolstering a witness’s credibility, is well grounded in authority”: R. v. Béland, 1987 27 (SCC), [1987] 2 SCR 398, at p. 408. See also: R. v. K.(A.) (1999), 1999 3793 (ON CA), 125 O.A.C. 1; R. v. B.W.W., 2017 ONSC 985, at paras. 24-31; R. v. Suarez-Noa, at para. 52.

[59] Accordingly, if the purpose of this proposed evidence is, as counsel for the plaintiffs submits, “to explain why it would not be fair to judge Ms. Hosseinkhani by her answers given at her cross-examination” it fails the necessity test and is contrary to the rule against oath-helping, and is therefore not admissible.

Analysis

i) Exclusion of Liability Clause

[60] The first legal question is whether the exclusion of liability in clause 3.3 of the Agreement is binding in this case.

[61] Sections 3, 4 and 5(3) of the Occupiers’ Liability Act, R.S.O. 1990, c.O.2 (OLA) are relevant to this issue. These provisions provide:

3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

4(1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

5(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.

[62] The Ontario Court of Appeal has recently dealt with sections 3 and 4 of the OLA in the case of Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313. In that case the Court confirmed, at para. 62, “the ability of occupiers of premises to obtain waivers of liability” under s. 3(3) of the OLA. The decision in Schnarr did not consider s. 5(3) of the OLA.

[63] Under s. 5(3) of the OLA, to rely on an exclusion of liability the occupier must take “reasonable steps” to bring the restriction or exclusion permitted by s. 3(3) of the OLA to the attention of the person to whom the duty of care is owed: Best v. Deal, 2008 ONCA 26, at para. 1.

[64] Section 5(3) of the OLA was first proposed by the Ontario Law Reform Commission in its 1972 Report on Occupiers’ Liability. The draft bill proposed by that Report included the following provision:

3(3) Where an occupier is free to extend, restrict, modify, or exclude his duty to any person entering on the premises, by express agreement or express stipulation, the occupier must take reasonable steps to bring such restriction, modification, or exclusion, to the attention of such person.

[65] The Commission’s commentary stated (at pp. 15-16):

Whether reasonable steps have been taken to bring an exclusion or modification to the attention of the person entering on the premises is a question of fact depending on all the circumstances, such as the position of a notice, its wording, and the age and understanding of the person entering the premises.

[66] The requirement to bring such restrictions or exclusions to the attention of the person signing the agreement also reflects the principle stated by the Ontario Court of Appeal in Tilden Rent-A-Car Co. v. Clendenning (1978), 1978 1446 (ON CA), 18 O.R. (2d) 601 (C.A.). In that case, Dubin J.A. stated, at para. 33:

In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. [Emphasis added.]

[67] The provision proposed by the Law Reform Commission was adopted into the OLA, in slightly modified form, as s. 5(3) when the OLA was first enacted in 1980 (S.O. 1980, c. 14). It remains in substantially the same form today.

[68] In my view the validity of the Exclusion of Liability Clause in this case turns on the application of s. 5(3) of the OLA. The question for the court on this motion for summary judgment is whether I can be satisfied on the basis of the record provided that the defendant took reasonable steps to bring the release to the attention of the plaintiff when she signed the Agreement.

[69] In some cases, the reasonableness of the steps taken to bring the release to the attention of the person signing the agreement may be apparent from the document itself. For example, in Schnarr, the Court of Appeal noted, at para. 7:

One heading, set out in bold type in a yellow box with a red border, specifically instructed the customer to “PLEASE READ CAREFULLY!” and cautioned Mr. Schnarr that by executing the document, he was giving up certain legal rights.

[70] Another example can be found in the case of Arif v. Li, 2016 ONSC 4579, which was a personal injury action arising from an injury while rock climbing. The defendants brought a successful motion for summary judgment against the plaintiff. The Court noted, at para. 60, that “the heading of the Releases loudly announced their purpose and call for the reader’s attention”. The court reproduced a number of the releases that were relied on by the several defendants in that case.

[71] For example, one release stated in red font:

THE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM FOR COMPENSATION FOLLOWING AN ACCIDENT

[72] Another, like the release in Schnarr, contained a bright yellow box surrounded by a red frame under the bold heading “PLEASE READ CAREFULLY”.

[73] A third included a detailed exclusion of liability under the following heading in bold, capital and underlined letters:

INDIVIDUAL WAIVER OF PUBLIC LIABILITY

W A R N I N G!

[74] Any of these features would satisfy the requirements of s. 5(3) of the OLA. See also: Trimmeliti v Blue Mountain Resorts Limited, 2015 ONSC 2301, at paras. 67 and 76.

[75] Frequently, as in some of the examples in the Arif case, s. 5(3) of the OLA may be satisfied by having the person sign or initial the specific provision providing for the exclusion or restriction. The person’s signature or initials beside the waiver is evidence that reasonable steps were taken to draw that specific provision to her attention.

[76] In contrast, in the present case, the document itself does nothing to draw “to the attention of the person to whom the duty is owed” the exclusion of liability.

[77] The exclusion clause is on the reverse of the Agreement under the general heading “Membership Agreement – Terms and Conditions”. That general heading is the largest font on the reverse side. The terms and conditions are divided into 7 headings and 26 clauses of tightly printed “fine print”. The Agreement does not feature any of the indicia described in Schnarr or Arif that would “bring… to the attention” of the signer that clause 3.3 of the agreement was significant or that a waiver was buried among the Agreement’s terms. The waiver portion of the document is identical in font and size to the rest of the reverse side of the contract, and the font on the reverse is smaller than the font on the front of the Agreement. There is nothing in the presentation of the contract that would draw the signer’s attention to the “Exclusion of Liability” paragraph or indicate that special attention should be paid to it.

[78] Nor is there any place on the Agreement for the plaintiff to sign or initial the Exclusion of Liability clause, which would have provided evidence that the defendant had made reasonable efforts to bring the waiver to the attention of the signer. The plaintiff has initialled the page at the bottom right corner adjacent to the heading “Service Fee”, but this is not sufficient to meet the requirements of s. 5(3) of the OLA.

[79] Finally, the defendant did not present any evidence from the employee who was present at the time of the signing. This employee might have been able to shed some light on what, if anything, she did to bring the clause to the attention of the plaintiff. In the absence of her evidence, all the court has is the evidence of the plaintiff that the defendant took no steps to bring the exclusion to her attention.

[80] Since this is the defendant’s motion for summary judgment, the initial onus is on the defendant to prove that it met the requirements of s. 5(3) of the OLA in order to rely on clause 3.3 of the Agreement. Based on the foregoing, the defendant has failed to meet that onus, and the defendant’s motion for summary judgment cannot be sustained on the basis of the exclusion of liability in clause 3.3 of the Agreement.

ii) Was There Any Negligence On The Part of the Defendant?

[81] The second issue raised by defendant is whether any negligence on its part can be shown as having contributed to the incident that caused the plaintiff’s injury.

[82] In my view, there is no genuine issue requiring a trial in relation to the negligence issue. The material facts are not in dispute, the parties have presented all of the relevant evidence, and no suggestion has been made as to what additional evidence might be presented or available if a trial were held. The facts relevant to the alleged negligence are comparatively few, and permit a summary resolution, even without the use of the enhanced forensic tools of Rule 20.04.

[83] In the present case, there are three possible outcomes if the court decides the liability issue on a summary basis. The court may conclude that the plaintiff is the sole cause of her injury, the court may conclude that the defendant is wholly liable for the plaintiff’s injury, or the court may find contributory negligence under s. 3 of the Negligence Act, R.S.O. 1990, c. N.1, which provides:

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

The Duty of an Occupier

[84] The plaintiff relies on QK’s duty as an occupier of the building under s. 3(1) of the OLA, quoted above at para. 59. There is no dispute that s.3(1) of the OLA applies.

[85] In Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467, Sanfilippo J. summarized the law in relation to a finding of liability for an injury sustained for a slip and fall under s. 3 of the OLA at paras. 31-33:

To succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury” … “[a] plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of, before liability can be established.”

The duty of care on the occupier does not extend to the removal of every possibility of danger. The Act does not impose strict liability. The standard of care is not perfection but rather reasonableness…

The duty of care established by the Act must not be confused with a presumption of negligence…The burden of proof is on the plaintiff: “The onus is on the plaintiff to prove on a balance of probabilities that the defendant was in breach of a positive duty of care”… [Citations omitted]

[86] In Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 4509, Perell J. stated, at para. 28:

The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises. The standard of care for occupiers is one of reasonableness and occupies are not required to take unrealistic or impractical precautions against known risks. The measure of what is reasonable depends on the facts of each case including foreseeability, the gravity of the possible harm, the burden of the cost of preventive measures, industry practice, custom, and regulatory standards applicable to the circumstances. [Footnotes omitted]

[87] See also Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, at para. 29:

It is important for a court to use common sense when applying the [OLA] statute... Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property.

[88] In the present case, there is no allegation that the round dumbbells were defective or inherently dangerous when properly used. Rather, the allegation is that the defendant failed to properly warn or instruct the plaintiff on their proper use. There is no evidence that round dumbbells are a known hazard. To the contrary, the evidence of the defendant is that they were routinely used by participants in the exercise class without incident.

[89] The only issue in this motion is whether the defendant had a duty to instruct the plaintiff regarding the proper placement of the dumbbells when not in use.

[90] The defendant relies on the decision of this court in Miltenberg v. Metro Inc., 2012 ONSC 1063. In that case the 73 year old plaintiff was injured when a tub of ice cream fell on her as she reached for the bottom of two tubs stacked on the top shelf of the freezer. In granting the defendant’s motion for summary judgment, Goodman J. stated, at paras. 29 and 33:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

The standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.

[91] Goodman J. rejected the plaintiff’s argument that the defendant had a duty to warn customers that reaching for goods on the top shelf could cause injury. He considered the risk to be obvious. He stated, at paras. 40, 42-43:

Common sense in this case dictates that if one is to reach out and above one’s head to grab an item that has another similar item on top but unattached, then there is the substantial likelihood that the top item may fall, especially since the angle of reach would not permit a level manipulation of the bottom product to the height of the individual who may be shorter than the height of the product.

The plaintiffs add that there ought to be the placement of signs cautioning customers that items may fall from their placement on higher shelves. With respect, customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly. I accept that individuals are fully capable of figuring out whether they can reach items above head height and whether they can do so in a safe manner.

I am not satisfied that a store must have warning signs scattered throughout the store to denote the potential of danger to customers if one decided to secure an item from a shelf above one’s height

[92] In Jassal v. Hilcox, 2016 ONSC 5523, the plaintiff was playing cricket on a tennis court in the park when he tripped and fell over a tennis post sleeve mounted on the surface of the court. As a result of the accident, the plaintiff suffered a fractured right wrist. The plaintiff alleged that the City did not employ reasonable safeguards to prevent his injuries.

[93] In granting the defendant’s motion for summary judgment, Van Melle J. noted that the plaintiff knew that the pole mounts were on the tennis court, but forgot about them when he started to play. There was no duty to warn the plaintiff about an obvious hazard of which he was already aware.

[94] The plaintiff relies on the Ontario Court of Appeal decision in Thomas v. Hamilton (City), Board of Education, 1994 739; 20 OR (3d) 598 (Ont. C.A.), and the British Columbia Court of Appeal decision in Thornton v. Board of School Trustees of School District No. 57 (Prince George), 1976 1083 (BC CA), [1976] 5 W.W.R. 240, 73 D.L.R. (3d) 35 (B.C.C.A.). These cases held that the standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that of the careful or prudent parent. This includes the duty to provide proper training and instruction for students involved in athletic activities.

[95] The plaintiff argues that the same duty of proper training and instruction is applicable to an exercise instructor at a gym for adults. On a general level this is correct, but there are important differences between a school context for children and a gym context for adults, not least of which is the fact that children require more supervision and instruction than adults. The Thomas case dealt with a child who was injured playing tackle football, and the Thornton case involved a child who was injured while doing a somersault over a box-horse as part of a gymnastics program. Both of these activities are inherently dangerous, both require instruction and the progressive development of specific skills.

[96] In contrast, the exercise activities involved in this case were simple and the skills involved were rudimentary. Neither the exercises themselves nor the equipment used were inherently dangerous.

[97] There is no evidence that the round dumbbells represented an unusual hazard or that the defendant had any reason to believe that they were hazardous. There is no evidence that the round dumbbells were not reasonably safe for the purpose for which they were intended. The evidence indicates that they had been used thousands of times without incident.

[98] An 8 pound dumbbell is not a complicated exercise machine that may require instruction on proper use and safety. The dumbbells were not being used in an unusual fashion or for a purpose for which they were not intended.

[99] The risk that a round dumbbell might roll is an obvious risk. An occupier does not have to warn an adult about obvious risks.

[100] The law is clear that the OLA does not impose strict liability on the occupier, and accidents can occur without anyone being negligent. In this case the plaintiff has not proven a prima facie case of negligence against the defendant for failure to warn her that a round dumbbell placed on its side could roll.

Conclusion

[101] For these reasons the defendant’s motion for summary judgment is granted and the plaintiffs’ action is dismissed.

[102] If the parties are unable to agree on costs, the defendant may serve and file costs submissions of no more than 3 pages, plus a costs outline and any offers to settle, within 25 days of the release of this decision. The plaintiff may file responding submissions on the same terms within 15 days thereafter.

Ontario

Superior Court of Justice

Between:

Fatemeh Hosseinkhani, Manuchehr Rasouli, Mohamed Reza Rasouli and Behnoush Rasouli

Plaintiffs

– and –

QK Fitness Inc., 2083053 Ontario Ltd. and Helen Doe

Defendants/Moving Party

Reasons for Decision

Justice R.E. Charney

Released: January 3, 2019