COURT FILE NO.: CV-13-84-00 DATE: 20191206 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN McCALLUM Plaintiff – and – BEATRICE JACKSON, IRONMAN CANADA INC., TRIATHLON ONTARIO, WORLD TRIATHLON CORPORATION and SECURITY NATIONAL INSURANCE COMPANY Defendants
COUNSEL:
M. Warfe for the responding party Plaintiff F. Costantini, for the Responding Party/ Defendant Beatrice Jackson C. Wydrrzynski, for the moving party Defendants Ironman Canada Inc., Triathlon Ontario, World Triathlon Corporation
HEARD: November 21, 2019
REASONS FOR DECISION
EBERHARD J.:
Introduction
[1] Ironman Canada Inc., Triathlon Ontario, and World Triathlon Corporation move for an order as follows:
a. An order granting Summary Judgment and dismissing the co-Defendant Beatrice Jackson’s crossclaim as there is no genuine issue requiring a trial with regard to the moving party Defendants’ liability; b. An order granting Summary Judgment and granting the moving party Defendants’ counterclaim against the Plaintiff as there is no genuine issue with regards to the moving party Defendants’ liability; c. An order that the responding party Defendant and the Plaintiff pay the moving party Defendants’ costs of this motion and of defending the crossclaim and advancing the counterclaim.
[2] The Plaintiff McCallum was a cyclist in a race organized by the moving party Defendants Ironman et al. The responding party Defendant Jackson was driving her motor vehicle on the roadway where the race was occurring. The bicycle came into contact with the motor vehicle. The Plaintiff McCallum suffered injuries and sued the responding party Jackson, and upon invitation by the responding party Defendant Jackson also sued Ironman. The responding party Defendant Jackson brought a crossclaim against the moving party Defendants Ironman et al.
[3] The Plaintiff McCallum subsequently discontinued against the moving party Defendants Ironman et al.
[4] When registering to enter the race the Plaintiff McCallum electronically accepted a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement absolving the moving party Defendants Ironman et al, and a defined list of third parties, of liability for race mishaps.
Procedure on the Motion
[5] Having reviewed the materials I began by observing that there may be distinct legal issues determinative of the motion that have no fact dispute. I identified the time available for the motion to be heard and suggested the parties discuss which issues would proceed before me, emphasizing that the moving party Defendants could proceed on the issues of their choice.
[6] The moving party Defendants Ironman et al identified two issues for argument:
(i) Whether the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement can be enforced against the Plaintiff McCallum and, if so it follows that there is no need for moving party Defendants Ironman et al to be in the action because they can never be asked to pay anybody; (ii) Whether the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement releases both the moving party Defendants Ironman et al and the responding Defendant Jackson.
[7] The Plaintiff McCallum takes issue with the second issue being heard today but does not identify any facts in dispute bearing on that issue.
[8] During the course of argument by the responding party Defendant Jackson, I was shown the endorsement of Graham J. dated July 25, 2016 allowing the responding party Defendant Jackson’s crossclaim to continue for handwritten reasons as follows:
The court finds that the defendants’ cross-action should continue as it is not clear from the evidence filed that the defendants by counter-claim were not negligent and, even if negligent, were fully indemnified, they are fully indemnified by the Plaintiff. [Tab I page 449 Responding Motion Record.]
[9] I was concerned not be drawn in to second guess an order already made by Graham J. However, I find that the motion for Summary Judgment before me today was filed subsequent to the Graham order which identified that there was insufficient evidence in that motion for Ironman to get out of the action, though the Plaintiff had discontinued its claim against Ironman. The Summary Judgment motion before me is not proceeding on the question of negligence but a question of law applied to facts that are not in dispute. If the other requirements for Summary Judgment are met, I am able to consider whether trial of the issues, some or all, can be determined by me without the need for a trial.
[10] There are factual disputes about the events and whether there was negligence. It is important to note that the issue of negligence of the Defendants was not before me today having been previously abandoned by the moving party Defendants Ironman et al for today’s motion. Costs associated with preparation for argument the negligence issue are before me and will be adjudicated hereafter based on by written argument after this ruling is released (see paragraph 70).
[11] I now move to the issues upon which the moving party Defendants Ironman et al proceeded before me:
Whether the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement can be enforced against the Plaintiff McCallum
[12] The Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement was signed electronically by the Plaintiff McCallum and acknowledged on examination. He did not read it. He does not contest that he waived the right to sue Ironman, but he disagrees that he understood he would have to indemnify Ironman in circumstances where another party brings a crossclaim against Ironman.
[13] There are no disputed facts requiring a trial that bear on this issue. It is a question whether the facts have met the legal test for upholding the agreement.
[14] The Plaintiff McCallum further narrows the issue by arguing that the waiver, that is giving up a right, is not what this case is about. Rather, it is whether the indemnity, setting out broad and onerous positive obligations on the Plaintiff McCallum, should be enforced.
[15] For ease of reference I am attaching a photocopy of the Waiver used during argument to these reasons for judgment because all the electronic copies in the record are insufficiently clear to read. The moving party Defendants Ironman et al reviewed several entries on the document and those highlighted clauses are reproduced here.
WAIVERS
I understand that by registering I have accepted and agreed to the waiver and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood waiver and release agreements presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.
EVENT REGISTRATION, RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT
...competitive events and other activities take place indoors or outdoor in various locations in the Canada and can include but are not limited to: warm -up exercises; competitive swimming, cycling and running.
… cycling , running and swimming risks. These include the risk of losing control and falling from the bike , colliding with objects or people (including co-participants or spectators) on land or in water, tripping or falling down or encountering other water/road/trail hazards.
…Risks regarding conduct. The potential that participant, co-participant and/or third party/s may act in a negligent or intentional manner. These and other risks may result in participants: falling partway or falling to the ground; being struck; colliding with objects, people or the bottom of a lake or other water body; experiencing bicycle or vehicle collision or rollover;
RELEASE AND INDEMNITY
PLEASE READ CAREFULLY. THIS RELEASE AND INDEMNITY SECTION CONTAINS A SURRENDER OF CERTAIN LEGAL RIGHTS.
I HEREBY ACKNOWLEDGE AND ASSUME ALL OF THE RISKS OF PARTICIPATING IN THIS EVENT, AND AGREE AS FOLLOWS:
TO RELEASE AND NOT TO SUE THE WORLD TRIATHLON CORPORATION (WTC), WEC, OAT, EVENT SPONSORS, EVENT ORGANIZERS, EVENT PROMOTERS, EVENT PRODUCERS, RACE DIRECTORS, EVENT OFFICIALS, EVENT STAFF, ADVERTISERS, ADMINISTRATORS, CONTRACTORS, VENDORS, VOLUNTEERS, AND ALL PROPERTY OWNERS AND PROVINCIAL, CITY, TOWN, COUNTY, AND OTHER GOVERNMENTAL BODIES, AND/OR MUNICIPAL AGENCIES WHOSE PROPERTY AND/OR PERSONNEL ARE USED AND/OR IN ANYWAY ASSIST IN LOCATIONS WHERE THE ACTIVITIES TAKE PLACE, AND EACH OF THEIR RESPECTIVE PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, ASSIGNEES, LICENSEES, OWNERS, OFFICERS, DIRECTORS, PARTNERS, BOARD MEMBERS, SHAREHOLDERS, MEMBERS, SUPERVISORS, INSURERS, AGENTS, EMPLOYEES, VOLUNTEERS, CONTRACTORS AND REPRESENTATIVES AND ALL OTHER PERSONS OR ENTITIES ASSOCIATED OR INVOLVED WITH THE ACTIVITIES ( INDIVIDUALLY AND COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS “RELEASED PARTY“ AND THE “RELEASED PARTIES“ ), WITH RESPECT TO ANY AND ALL CLAIMS, LIABILITIES, SUITS OR EXPENSES (INCLUDING ATTORNEYS FEES AND COSTS) (COLLECTIVELY REFERRED TO IN THISAGREEMENT AS “CLAIM“ OR “CLAIMS“ ) FOR ANY INJURY, DAMAGE, DEATH OR OTHER LOSS IN ANYWAY CONNECTED WITH MY ENROLLMENT OR PARTICIPATION IN THE ACTIVITIES, NEGLIGENCE, WHETHER PASSIVE OR ACTIVE, OF THE RELEASED PARTIES, ANY BREACH BY THE RELEASE PARTIES OF A STATUTORY DUTY AND/OR USE OF ANY EQUIPMENT, FACILITIES OR PREMISES, HOWSOEVER CAUSED. I AGREE HERE TO WAIVE ALL CLAIMS I MAY HAVE AGAINST THE RELEASED PARTIES AND AGREE THAT NEITHER I, NOR MY ESTATE, HEIRS, ASSIGNS OR BENEFICIARIES NOR ANYONE ELSE ACTING ON MY BEHALF, WILL MAKE A CLAIM AGAINST THE RELEASED PARTIES FOR ANY INJURY, DAMAGE, DEATH OR OTHER LOSS I MAY SUFFER.
TO DEFEND AND INDEMNIFY (“INDEMNIFY” MEANING PROTECT BY REIMBURSEMENT OR A PAYMENT) THE RELEASED PARTIES WITH RESPECT TO ANY AND ALL CLAIMS BROUGHT BY OR ON BEHALF OF ME, MY SPOUSE, A FAMILY MEMBER, A CO-PARTICIPANT OR ANY OTHER PERSON, FOR ANY INJURY, DAMAGE, DEATH OR OTHER LOSS IN ANY WAY CONNECTED WITH MY ENROLLMENT OR PARTICIPATION IN THE ACTIVITIES, NEGLIGENCE, WHETHER PASSIVE OR ACTIVE, OF THE RELEASED PARTI ES, ANY BREACH BY THE RELEASED PARTIES OF STATUTORY DUTY AND/OR USE OF ANY EQUIPMENT, FACILITIES OR PREMISES, HOWSOEVER CAUSED.
THIS RELEASE AND INDEMNITY SECTION INCLUDES BUT IS NOT LIMITED TO CLAIMS FOR PERSONAL INJURY OR WRONGFUL DEATH (INCLUDING CLAIMS RELATED TO EMERGENCY, MEDICAL, DRUG AND/OR HEALTH ISSUES, RESPONSE, ASSESSMENT OR TREATMENT), PROPERTY DAMAGE, LOSS OF CONSORTIUM, BREACH OF CONTRACT OR ANY OTHER CLAIM, INCLUDING CLAIM/S RESULTING FROM THE NEGLIGENCE OF THE RELEASED PARTIES WHETHER PASSIVE OR ACTIVE
I UNDERSTAND AND AGREE THAT BY ELECTRONICALLY CHECKING THE BOX AND COMPLETING THE INFORMATION BELOW OR SIGNING A PAPER VERSION OF THIS AGREEMENT I AM ENTERING INTO A LEGALLY BINDING CONTRACT WITH WEC, AND THAT I AM NOT ONLY GIVING UP MY (AND IF I AM PARTICIPANTS LEGAL GUARDIAN, PARTICIPANT’S) RIGHT TO SUE THE RELEASED PARTIES BUT ALSO ANY RIGHTS MY/ PARTICIPANT’S ESTATE, HEIRS, ASSIGNS OR BENEFICIARIES MAY HAVE TO SUE THE RELEASED PARTIES FOR DAMAGES AND LOSSES RESULTING FROM MY/PARTICIPANT’S INJURY, DAMAGE, DEATH OR OTHER LOSS.
2 Waiver YOU UNDERSTAND THAT PARTICIPATION IN THE EVENT IS POTENTIALLY HAZARDOUS, AND THAT A REGISTERED PARTY SHOULD NOT PARTICIPATE UNLESS THEY ARE MEDICALLY ABLE AND PROPERLY TRAINED. YOU UNDERSTAND THAT EVENTS MAY BE HELD OVER PUBLIC ROADS AND FACILITIES OPEN TO THE PUBLIC DURING THE EVENT AND UPON WHICH HAZARDS ARE TO BE EXPECTED. PARTICIPATION CARRIES WITH THAT CERTAIN INHERENT RISKS THAT CANNOT BE ELIMINATED COMPLETELY RANGING FROM MINOR INJURIES TO CATASTROPHIC INJURIES INCLUDING DEATH.
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT
…Active makes no warranty that the active sites services will be uninterrupted secure or error free. Active does not guarantee the accuracy or completeness of any information in or provided in connection with the Active sites.
- Indemnification. You agreed to indemnify and hold each of Active harmless from any from and against any and all damages, costs, claims or demands, including reasonable attorneys fees made by any third-party due to or arising from or relating to your use of Active or the violation of any term of this Agreement and Waiver as well as the terms of service located at “http://www.activenetwork.com/terms-of-.htm by you.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND WAIVER, YOU ARE AFFIRMING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND WAIVER AND FULLY UNDERSTAND ITS TERMS YOU UNDERSTAND YOU ARE GIVING UP SUBSTANTIAL RIGHTS, INCLUDING THE RIGHT TO SUE
I understand and agree. Any dispute or claims I may have arising out of, relating to or in connection with his agreement my role model or participation in activities, or any other aspect of my relationship with WEC one shall be governed by Ontario law without regard to its conflict of laws rules to will be referred prior to any other proceedings to mediation under the auspice is of the Canadian Commercial Arbitration Center, CCAC in accordance with its conciliation and mediation and rules in force at the time of the mediation and to which the parties declared they have adhered and three if mediation is unsuccessful will be definitely settled Under the auspice is of the Canadian commercial arbitration centre by means of arbitration at the exclusion of the courts of law in accordance with its general commercial arbitration rules in force of the time the contract is signed into which parties declared they have it here. CCAC arbitrators knowledgeable in the field and in commercial matters acceptable to both the participant and WEC shall conduct the arbitration required venue: I agree that any mediation or arbitration proceeding I UNDERSTAND AND AGREE THAT BY ELECTRONICALLY CHECKING THE BOX AND COMPLETING THE INFORMATION BELOW OR SIGNING A PAPER VERSION OF THIS AGREEMENT I AM ENTERING INTO A LEGALLY BINDING CONTRACT WITH WEC AND THAT I AM NOT ONLY GIVING UP MY BRACKET AND IF I AM PARTICIPANT THE PARTICIPANT SERPENTS LEGAL GUARDIAN, PARTICIPANTS RATE TO SUE THE RELEASED PARTIES BUT ALSO ANY RIGHTS MY PARTICIPANTS STATE AIRS THE SIGNS OR BENEFICIARIES MAY HAVE TO SUE THE RELEASE PARTIES FOR DAMAGES AND LOSSES RESULTING FROM MY PARTICIPATION PARTICIPANTS INJURY DAMAGE TO DEATH OR OTHER LOSS.
[16] The heavy lifting for this decision has been done by courts before me such that I find that the deep issue before me firstly boils down to whether the indemnity portion of the waiver and indemnity was sufficiently brought to the Plaintiff’s attention.
[17] In Arif v. Li, 2016 ONSC 4579 the court considered:
Is the Plaintiff Bound by the Terms of the Releases? Arif v. Li, 2016 ONSC 4579, para. 50
[50] A review of the case law shows that a person is bound by a signed release unless one of the following circumstances exist:
- Non Est Factum – The signer, through no carelessness on his or her part, is mistaken as to the document’s nature and character;
- Fraud or Misrepresentation – The signer is induced to sign the contract by fraud or misrepresentation;
- Objective Lack of Consensus Ad Idem – Where it is unreasonable for a person relying on the signed contract to believe that the signer really did assent to its terms;
- Unconscionable – was the contract formed in unconscionable circumstances;
- Public Policy – There is an overriding public policy that outweighs the very strong public interest in the enforcement of contracts.
[18] As in the present case the Plaintiff did not plead non est factum, fraud or misrepresentation. In the present case the Plaintiff has discontinued its claim against Ironman. Nor does the Plaintiff argue against the waiver of the right to sue but only that the Plaintiff had not expected indemnification to mean paying all Ironman’s costs if someone sued them. Such an onerous positive obligation, the Plaintiff asserts must be more prominently brought to the attention of the party to be bound.
[19] Such issues were examined in Arif first exploring the authorities: Arif v. Li, para. 52
Lack of Consensus Ad Idem
[52] Professor Stephen M. Waddams in The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010), at para. 318, states:
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. But the other side of the same coin is that only a reasonable expectation will be protected. If the party seeking to enforce the document knew or had reason to know of the other's mistake the document should not be enforced.
[53] The above statement was cited with approval in Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.). 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.]
[54] Similarly, in Karroll v. Silver Star Mountain Resorts Ltd . (1988), 33 B.C.L.R. (2d) 160, McLachlin, C.J.S.C., as she then was, adopted the Ontario Court of Appeal’s approach in Tilden and stated, at para. 26:
It follows that Miss Karroll is bound by the release unless she can establish: (1) that in the circumstances a reasonable person would have known that she did not intend to agree to the release she signed; and (2) that in these circumstances the defendants failed to take reasonable steps to bring the content of the release to her attention.
[20] As a sometime consumer and non-reader of on-line waiver clauses I can easily imagine the Plaintiff’s astonishment that the release he had not read imposed a positive obligation to indemnify as Ironman now asserts. So, I return to Arif’s analysis from a starting point that a racer is not likely to expect such a term from experience in races with waivers. That court also assumed that a person does not intend to be bound if a term runs contrary to normal expectations.
(A) In the circumstances, would a reasonable person have known that the Plaintiff did not intend to agree to the Releases that he signed? Arif
[56] The following principles apply in determining whether a reasonable person would have known that the Plaintiff did not intend to agree to a release that he or she signed:
Many factors may be relevant to whether the duty to take reasonable steps to advise of an exclusion clause or waiver arises. The effect of the exclusion clause in relation to the nature of the contract is important because if it runs contrary to the party's normal expectations it is fair to assume that he does not intend to be bound by the term. The length and format of the contract and the time available for reading and understanding it also bear on whether a reasonable person should know that the other party did not in fact intend to sign what he was signing. This list is not exhaustive. Other considerations may be important, depending on the facts of the particular case.
[57] Applying the above principles, I find that it is reasonable for the Defendants to rely on the Plaintiff’s signature of the Releases. I am not satisfied that Li and the Defendants knew or ought to have known that the Plaintiff did not assent to the Releases for the following reasons:
(1) The title of each Release, “Individual Waiver of Public Liability” and “Release of Liability, Waiver of Claims and Assumption of Risk and Indemnity Agreement”, written in capital letters, clearly communicates the purpose of each Release. The balance of the Releases is written in regular size font with many words in capital letters.
Unlike Tilden , this is not a case where an exclusion of liability was buried in small font on the reverse side of a contract and whose purpose was inconsistent with the overall purpose of the contract;
(2) The Plaintiff understood that he would not be permitted to participate in the rock climbing activities unless he signed the Releases. The Plaintiff acknowledged that he was aware of the general nature of the Releases which was to exempt the Defendants from liability.
(3) The Plaintiff returned the signed Releases to Li about 3 to 5 minutes after being provided with a copy of them for his review and signature. The Plaintiff did not suggest that he was rushed to sign the Releases. The Plaintiff agreed that he could have asked for more time to review the Releases had he wished to do so. After the Plaintiff read the Releases, he did not ask Li any questions about them nor did he say anything about them to Li. Unlike Tilden, this is not a case where it was apparent to Li that the Plaintiff had not read the Releases.
[21] As in Arif, the Plaintiff McCallum understood that he would not be permitted to participate in the race unless he signed the Releases. He was aware of the general nature of the Releases which was to exempt the Defendants from liability.
[22] I have quoted above the waiver document which the Plaintiff had all the time he wanted to read on the internet before registering. A second release in identical terms was given to each racer when they attended.
[23] The Plaintiff asked no questions about the release he signed. There was no way for Ironman to know he had not read the documents.
[24] Although the indemnity appears on the third page of a document that would be continuous on line, its importance is emphasized by capitalizing the letters and beginning “ RELEASE AND INDEMNITY PLEASE READ CAREFULLY. THIS RELEASE AND INDEMNITY SECTION CONTAINS A SURRENDER OF CERTAIN LEGAL RIGHTS”.
[25] It explains TO DEFEND AND INDEMNIFY (“INDEMNIFY “MEANING PROTECT BY REIMBURSEMENT OR A PAYMENT).
[26] Internet being the commonplace and accepted method of registering for the race and with the emphasis given to the words of indemnification, similar to the Arif emphasis, and assuming even that Ironman reasonably knew that a registrant would not intend to agree to such an unexpected waiver, Ironman had done what it could to bring the onerous terms to the registrant’s attention.
[27] Following the Arif reasoning, there is nothing in the circumstances that would cause a reasonable person to know that the Plaintiff did not intend to agree to the terms he signed.
[28] Furthermore, Arif goes on to address my other misgivings by considering, in the alternative whether the Defendant took reasonable steps to bring the content of the releases to the Plaintiff’s attention.
[29] Again, the Arif court refers to the capital lettering and words of warning.
[30] It went on to consider whether such a release was unconscionable, concluding that the Plaintiff was well-educated, there was no inequality of bargaining power and he was not preyed upon. Rather, he cites Dyck v Manitoba Snowmobile Assoc. Inc, [1985] 1 SCR 589 at para 593 where the SCC stated:
As already mentioned, the races carried with them inherent dangers of which the appellant should have been aware and it was in no way unreasonable for an organization like the Association to seek to protect itself against liability from suit for damages arising out of such dangers. It follows from this that there are no grounds of public policy on which the waiver clause should be struck down, an issue also raised on behalf of the appellant.
[31] Finally, considering whether the release was contrary to public policy the Arif court recognized that freedom of contract could be trumped by “well-accepted and substantially incontestable” to avoid the effect of releases. Noting that the SCC had rejected the public policy argument in Dyck , it was also rejected. A number of cases involving participation in inherently risky event were cited to similar effect.
[32] I conclude therefore, that an event organizer can limit risk by requiring participants to sign a release. I conclude that Ironman did that very thing without pressuring the Plaintiff, without burying the nature of the release in fine print and by giving emphasis to the significant terms. The Plaintiff signed, giving no reason for Ironman to believe he was not intending to agree to the terms.
[33] There is no argument that the collision that occurred is covered by the release. The risk of “losing control and falling from the bike, colliding with objects or people (including co-participants or spectators)” is specified. “Risks regarding conduct…The potential that participant, co-participant(s) and/or third parties may act in a negligent or intentional manner. These and other risks may result in participants: falling partway or falling to the ground; Being struck; colliding with objects, people … experiencing bicycle or vehicle collision or rollover; …” The place is identified: “EVENTS MAY BE HELD OVER PUBLIC ROADS AND FACILITIES OPEN TO THE PUBLIC DURING THE EVENT AND UPON WHICH HAZARDS ARE TO BE EXPECTED”. I find the mishap that occurred, however it occurred, was squarely within the defined risks.
[34] Indeed, the Plaintiff’s argument acknowledges the waiver. The Plaintiff is not suing Ironman. It is the indemnity that is contested.
[35] The Plaintiff argues that it would defy common sense to enforce such onerous positive obligations unless they are “front and center”. The narrow question is whether the indemnity on page 3 is front and center enough.
[36] The release in Arif also included an indemnity with similar emphasis by way of placement and capitalization as the waiver clauses. Enforcement of the indemnity was not the issue in the case. On the other hand, the indemnity formed part of a whole that the court analyzed and there is nothing in the judgment to segregate the indemnity from the court’s analysis.
[37] The wording of the Arif indemnity clause is different:
- I HEREBY AGREE TO HOLD HARMLESS AND INDEMNIFY THE RELEASEES from any and all liability to the fullest extent permitted by law for any property damage or personal injury to any 3rd party resulting from my (or my child’s) participation in wilderness activities.
[38] The Plaintiff argues that the Ironman indemnity if interpreted as “resulting from MY participation” should perhaps be enforceable but that is not our case.
[39] Certainly, it was Ironman’s intention that any claims it has to defend, such as the present crossclaim, would be indemnified otherwise the release and waiver loses its value to protect them.
[40] In the context of a release document that is otherwise entirely about loss of the right to sue, on the third page, as the second paragraph after the title RELEASE AND INDEMNITY
PLEASE READ CAREFULLY. THIS RELEASE AND INDEMNITY SECTION CONTAINS A SURRENDER OF CERTAIN LEGAL RIGHTS.
TO DEFEND AND INDEMNIFY (“INDEMNIFY” MEANING PROTECT BY REIMBURSEMENT OR A PAYMENT) THE RELEASED PARTIES WITH RESPECT TO ANY AND ALL CLAIMS BROUGHT BY OR ON BEHALF OF ME, MY SPOUSE, A FAMILY MEMBER, A CO-PARTICIPANT OR ANY OTHER PERSON, FOR ANY INJURY, DAMAGE, DEATH OR OTHER LOSS IN ANY WAY CONNECTED WITH MY ENROLLMENT OR PARTICIPATION IN THE ACTIVITIES , NEGLIGENCE, WHETHER PASSIVE OR ACTIVE, OF THE RELEASED PARTIES , ANY BREACH BY THE RELEASED PARTIES OF STATUTORY DUTY AND/OR USE OF ANY EQUIPMENT, FACILITIES OR PREMISES, HOWSOEVER CAUSED .
[41] There is a further statement of indemnification at page five relating to “Active” which appears to be the internet registration service:
- Indemnification. You agreed to indemnify and hold each of Active harmless from any from and against any and all damages, costs, claims or demands, including reasonable attorneys fees made by any third-party due to or arising from or relating to your use of Active or the violation of any term of this Agreement and Waiver as well as the terms of service located at http://www.activenetwork.com/terms-of-.htm by you.
[42] “Active” is not a party to this litigation and the indemnity is specific to them. Interestingly, it is clearer in its statement that indemnification includes “reasonable attorneys fees made by any third-party.”
[43] In the face of the Plaintiff’s argument that the waiver meets the standard enunciated in Arif but the indemnity within the release does not, Ironman produced no case where the subject was indemnity rather than waiver.
[44] So, I return to the principles on which Ironman relies and I have accepted in relation to the waiver. In Arif the court stated:
(B) Alternatively, did the Defendants take reasonable steps to bring the content of the Releases to the Plaintiff’s attention?
[58] The Plaintiff submits that the Defendants have an obligation to ensure that the Plaintiff understood the legal effect of the Releases prior to signing them. I reject this submission. There is no independent obligation on a person seeking the benefit of a release to explain its legal effect to the signer of the release. No such obligation is contemplated in Tilden or any other decision of the Ontario Court of Appeal or the Supreme Court of Canada that has come to my attention. As McLachlin C.J.S.C, as she then was, stated in Karoll , at para. 24:
It emerges from these authorities that there is no general requirement that a party tendering a document for signature to 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 . For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission.
[45] In the present case, trying to work through the release document myself, through the structure of the document even with its emphasis, my difficulty was not that “a reasonable person should have known that the party signing was not consenting to the terms in question” but rather that the term in question does not adequately convey its meaning.
[46] I have considered that the wording is dense legalese such that by its prolixity it loses its quality of plain language. It is quite a slog, even for a legally trained reader, to wade through all the inclusions and qualifiers that are present, no doubt, to cover some avenue of defense.
[47] Like the rest of the release document it is adequately highlighted that it is bringing “a surrender of certain legal rights”, a phrase that itself sounds like waiver, but it fails to convey the essence of meaning which is, by comparison, simply captured in plain English in the “Active” indemnity clause on page 5.
[48] There is so much legalese in the Ironman indemnity clause that it fails to say what it means. It is also grammatically unclear.
[49] When I read the clause, I ask myself does it convey meaning to the effect that “if anyone sues you connected with my participation in the race I will indemnify you including paying your legal fees”.
[50] I find it does not.
[51] The longer I spend examining the clause the more I conclude that “a reasonable person should have known that the party signing was not consenting to the terms in question” did not consent because the terms in question have no discernable meaning.
[52] Many cases determining whether a contract should be upheld include in their analysis the factor of plain language. For example, Ironman has cited Rudder v Microsoft Corp. 1999 14923 (ON SC) in which Winkler J. upholds the challenged electronic agreement stating:
- I have used the member agreement as it was presented to Rutter during the signup procedure. …. there are no physical differences which make a particular term of the agreement more difficult to read them any other terms. In other words, there is no fine print as that term would be defined in a written document. The terms are set out in plain language, absent words that are commonly referred to as “legalese”. ….
[53] In the result I find that the release document is valid and binding on the Plaintiff and that the Plaintiff has waived the right to sue as he has already conceded, However I find no valid indemnity clause that binds the Plaintiff to indemnify Ironman and pay its legal costs for a suit brought by the responding party Defendant in connection with the Plaintiff’s participation in the race.
[54] As indicated in the introduction the first issue I was asked to determine was:
Whether the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement can be enforced against the Plaintiff McCallum and, if so, it follows that there is no need for moving party Defendants Ironman et al to be in the action because they can never be asked to pay anybody;
[55] Having found that the indemnity clause cannot be enforced against the Plaintiff, I therefore dismiss the moving party Defendants’s motion for an order granting Summary Judgment and granting the moving party Defendants’ counterclaim against the Plaintiff.
[56] The Plaintiff did not bring a motion, so I am unable procedurally to grant a final order reflecting the ruling I have made that the Plaintiff is not bound by an indemnity clause.
[57] I was also asked to determine:
Whether the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement releases both the moving party Defendants Ironman et al and the responding Defendant Jackson
[58] Specifically, is the responding party Defendant Jackson released by the waiver of the right to sue?
[59] This is not about whether the responding party Defendant is unable to crossclaim against Ironman. The responding party Defendant Jackson is not party to the waiver and cannot be bound.
[60] The question in whether Jackson is a 3rd party beneficiary of the waiver.
[61] The moving party Defendants argues that Jackson was in a place, doing an activity and constituting a risk anticipated in the agreement. The release is extended to Jackson based on the fact that she is a licensed driver.
[62] I am taken to a list of persons covered by the waiver in the Release signed:
TO RELEASE AND NOT TO SUE THE WORLD TRIATHLON CORPORATION (WTC), WEC, OAT, EVENT SPONSORS, EVENT ORGANIZERS, EVENT PROMOTERS, EVENT PRODUCERS, RACE DIRECTORS, EVENT OFFICIALS, EVENT STAFF, ADVERTISERS, ADMINISTRATORS, CONTRACTORS, VENDORS, VOLUNTEERS, AND ALL PROPERTY OWNERS AND PROVINCIAL, CITY, TOWN, COUNTY, AND OTHER GOVERNMENTAL BODIES, AND/OR MUNICIPAL AGENCIES WHOSE PROPERTY AND/OR PERSONNEL ARE USED AND/OR IN ANYWAY ASSIST IN LOCATIONS WHERE THE ACTIVITIES TAKE PLACE, AND EACH OF THEIR RESPECTIVE PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, ASSIGNEES, LICENSEES, OWNERS, OFFICERS, DIRECTORS, PARTNERS, BOARD MEMBERS, SHAREHOLDERS, MEMBERS, SUPERVISORS, INSURERS, AGENTS, EMPLOYEES, VOLUNTEERS, CONTRACTORS AND REPRESENTATIVES AND ALL OTHER PERSONS OR ENTITIES ASSOCIATED OR INVOLVED WITH THE ACTIVITIES ( INDIVIDUALLY AND COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS “RELEASED PARTY“
[63] The moving party Defendants submits that the motorist responding party Defendant Jackson, being the holder of a valid driver’s license and thereby permitted to use the roadway where the incident occurred during the race, is captured by this clause to be a “RELEASED PARTY”.
[64] From argument and in my own imagination many scenarios arise where a person, licensed by government to do some activity or be in a particular location may cause harm to others including the participants in a race: the nuclear plant licensed to be in the vicinity melts down causing harm to many, the licensed driver impaired by alcohol who drives through the race location without regard for anyone much less racers, the pedestrians licensed to be on the sidewalk adjacent to the race course who have bomb in their backpacks and terrorist intent. These examples are dramatic and perhaps remote but serve to demonstrate that it cannot be that this release deprives the registrants in this race of all rights in relation to all wrong-doers just because they are licensed to be in a location walking, driving or carrying on other activities that people generally have license to do.
[65] There must be some parameter around who is intended to be included among the list as a “RELEASED PARTY”.
[66] The obvious parameter arises from the words of the release and from common sense. The release is limited to those “ -WHOSE PROPERTY AND/OR PERSONNEL ARE USED AND/OR IN ANYWAY ASSIST IN LOCATIONS WHERE THE ACTIVITIES TAKE PLACE,..AND ALL OTHER PERSONS OR ENTITIES ASSOCIATED OR INVOLVED WITH THE ACTIVITIES (INDIVIDUALLY AND COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS “RELEASED PARTY”).
[67] In plain words, this refers to people who have something to do with all the myriad of arrangements necessary to authorise and stage the race.
[68] I find that motorists who are driving on roadways where the race has been permitted to occur are not among the “RELEASED PARTIES”. Specifically, responding party Defendant Jackson is not a “RELEASED PARTY”.
[69] It follows from this ruling that Summary Judgment is not available to the moving party Defendants for any of the requested relief:
a. dismissing the co-Defendant Beatrice Jackson’s crossclaim; b. granting the moving party Defendants’ counterclaim against the Plaintiff; c. requiring the responding party Defendant and the Plaintiff to pay the moving party Defendants’ costs of this motion and of defending the crossclaim and advancing the counterclaim.
[70] The issue of costs remains, both for this motion and also the responding party Defendant’s claim for costs of preparation on the negligence issues that did not proceed. All counsel wished to proceed by written submissions. If they now feel there are complications that require more than the three pages of costs submissions I am willing to permit, they may arrange to appear before me in Bracebridge or Barrie on a date to be arranged with the trial coordinator.
If they do not make that arrangement I will received cost submissions of no more than 3 pages together with any offers and Costs Outline, by email directed to the judicial secretary in Bracebridge, Julie.Gottschalk@ontario.ca as follows: the Plaintiff McCallum by January 6, 2020; responding party Defendant Jackson by January 15, 2020; and moving party Defendants Ironman by January 24, 2020 and any Reply (based on the various tangents of claim and response) by January 31, 2020.
EBERHARD J.
Released: December 6, 2019