COURT FILE NO.: CV-15-1947

DATE: 2020 07 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAFIK ZAKY

Plaintiff/Responding Party

– and –

2285771 ONTARIO INC., carrying on business as SKY ZONE INDOOR TRAMPOLINE PARK

Defendant/Moving Party

M. Smitiuch/M. Johnston, for the Plaintiff/Responding Party

N. Marotta, for the Defendant/Moving Party

HEARD: July 15, 2020

REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT

conlan j.

I. The Action

1This is an action brought in negligence and on the basis of an alleged breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, as amended.

2The Plaintiff, Mr. Rafik Zaky (“Zaky”), on July 19, 2014, visited the premises (an indoor trampoline and fun park located in Mississauga, Ontario) of the Defendant, 2285771 Ontario Inc. (“Sky Zone”). While on a trampoline, Zaky attempted to land a back flip, landed hard on his head and suffered serious injuries including a C7 vertebra fracture that required surgery.

3Like all guests, before using the equipment at Sky Zone, Zaky signed a purported electronic waiver document (“waiver”). That was done at a computer kiosk at Sky Zone’s premises.

4To understand the content of the said document, this Court borrows from paragraphs 16 through 21 of the factum filed on behalf of Sky Zone dated June 8, 2016, reproduced below, without the footnotes (editorial comments included but not necessarily agreed with by this Court):

16. The title of the waiver immediately alerts the guest to the nature of its terms: “Assumption of Risks, Release of Liability, Wavier of Claims and Indemnity Agreement.”

17. The title is followed by an explicit warning about the legal effect of the waiver: “By signing this document, you will waive certain legal rights, including the right to sue:”

18. A further capitalized warning then alerts the guest to the importance of reading the document: “PLEASE READ CAREFULLY!”

19. Paragraph 1 of the wavier contains an assumption of risks clause. Pursuant to paragraph 1, the guest voluntarily assumes all risks associated with his or her participation in trampoline games or activities at Sky Zone:

I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary and I elect to participate in spite of the risks.

20. Paragraph 1 specifically mentions the risk of “broken bones” and lists “flipping” as an activity that can cause serious injury.

21. Paragraph 3 of the waiver contains a comprehensive hold harmless clause in favour of Sky Zone. This clause expressly covers claims for negligence and breach of the Occupiers’ Liability Act. It applies regardless of the cause of harm to the guest:

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Sky Zone and to waive any and all claims, demands, or causes of action that I have or may have in the future against Sky Zone and to release Sky zone from any and all liability for any loss, damage, expense or injury including death that I may suffer or that my family, heirs, assigns, personal representatives and estate may suffer as a result of my participating in Sky Zone trampoline games or activities DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS’ LIABILITY ACT, R.S.O. 1990, C. O. 2 ON THE PART OF SKY ZONE AND FURTHER INCLUDING THE FAILURE ON THE PART OF SKY ZONE TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF SKY ZONE TRAMPOLINE GAMES OR ACTIVITIES.

II. The Motion and The Issue to be Decided

5Sky Zone moves for summary judgment, dismissing the action, on the basis of the waiver. The motion is contested by Zaky.

6The issue to be decided and the position advanced on behalf of Sky Zone are both encapsulated in paragraphs 22 and 54 of its factum dated June 8, 2016, set out below:

22. The sole issue on this motion is whether the waiver signed by the plaintiff is a full defence to this action such that there is no genuine issue requiring a trial.

23. Ultimately, the plaintiff has not established any reason to depart from the general rule that the waiver he signed is valid and enforceable, regardless of whether he read or understood it. The three exceptions to the general validity of waivers – non est factum, misrepresentation, and circumstances suggesting that the signer does not intend to be bound – are not made out on the evidence before this court. The evidence shows that Sky Zone took reasonable steps to bring the terms of the waiver to the plaintiff’s attention. It is fatal to the plaintiff’s claims in negligence and under the Occupiers’ Liability Act. There can therefore be no genuine issue requiring a trial. This action is contractually barred and must be dismissed.

III. The Law

Summary Judgment

7The parties agree on what the law is in Ontario with regard to a motion for summary judgment.

8This Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial: Rule 20.04(2)(a).

9Sky Zone, as the moving party, has the burden of proof. The standard of proof is on a balance of probabilities.

10In determining whether there is a genuine issue requiring a trial, this Court shall consider the evidence adduced on the motion and may weigh that evidence, evaluate credibility, and draw reasonable inferences: Rule 20.04(2.1).

11In addition, the Court may order a mini-trial, where oral evidence would be presented: Rule 20.04(2.2).

12Where the only genuine issue is one of law, this Court may decide the question and grant judgment accordingly: Rule 20.04(4).

13The following principles may be gleaned from a careful review of the leading decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

14First, it is the principle of proportionality that ought to drive the Court’s decision on a request for summary judgment. There will be no genuine issue requiring a trial when the judge hearing the motion is able to reach a fair and just determination on the merits.

15Second, what does that mean – a fair and just determination on the merits? It means (i) that the judge hearing the motion is able to make the necessary findings of fact, (ii) is able to apply the law to the facts, and (iii) the process employed to do those things is a proportionate, more expeditious and less expensive means to achieve a just result (as compared to a trial).

16The judge must be able to have confidence in the conclusions reached on the motion, otherwise, the case ought to proceed to trial.

17Third, the judge hearing the motion should follow a two-stage procedure. Initially, consider only the evidence filed without regard to the expanded powers. Then, afterwards, if there appears to be a genuine issue requiring a trial, the judge may (but does not have to) weigh the evidence, evaluate credibility and draw reasonable inferences.

18Fourth, there is certainly a culture shift that was signalled by the decision of the Supreme Court of Canada referred to above. The Courts have been encouraged to, wherever possible, deal with matters expeditiously. Cases should proceed to trial only if they really have to. The summary judgment process can, where employed properly, increase access to affordable and timely justice. A trial should no longer be viewed as the default procedure.

Waivers

19The parties also agree on the law as it pertains to waivers of liability.

20Generally, I concur with and adopt the following paragraphs of the factum filed on behalf of Sky Zone dated June 8, 2016 – 30 to 37, 39, and 40, including all of the footnotes thereto (which are also reproduced below):

30. It is well-established that exclusion of liability clauses are per se not unreasonable or unconscionable in the context of dangerous sports and activities.¹ As the Supreme Court of Canada has held, “there are no grounds of public policy” that justify striking an exclusion of liability in this context.² The question therefore becomes whether the exclusion of liability (here, the waiver) is enforceable as against the person who signed the document.

31. It is immaterial that the plaintiff’s waiver was signed electronically rather than manually. Section 19(1) of the Electronic Commerce Act, 2000 provides that a contract may be formed by “touching or clicking an appropriate icon or other place on a computer screen.”³ Further, section 19(3) of the Act explicitly indicates that a contract “is not invalid or unenforceable by reasons only of being in electronic form.⁴

i. It is immaterial that the plaintiff did not read the waiver.

32. Where a plaintiff has signed a written contract, it is immaterial that the plaintiff has not read the document and does not know its terms.⁵ As Dunphy J. recently held in Trimmeliti, above, “[if] the plaintiff chose to sign the form and ignore the consequences, that was a decision freely made by the plaintiff.⁶

33. A plaintiff cannot unilaterally contract out of a waiver that he knew or ought to have known was a condition of his participating in the activity in question.⁷ It is impossible to pick out certain clauses from the wavier and ignore then as not being binding on the plaintiff.⁸

34. There are three exceptions⁹ to the general enforceability of waivers, in particular:

a) Where the circumstances establish non est factum, meaning that the signature on the wavier was not truly the act of the plaintiff;

b) Where the plaintiff’s signature was induced by fraud or misrepresentation; or

c) Where the defendant knew or ought to have known that the plaintiff did not intend to be bound by the waiver and, therefore, the defendant had a duty to bring the terms of the waiver to the plaintiff’s attention.

35. The first exception – non est factum – arises where the plaintiff “has signed a document mistaken as to its nature and character.”¹⁰ An example of non est factum is where the document was not presented to the plaintiff as a wavier, but something more innocuous like a registration form.¹¹ However, carelessness on the part of the signed does not equate to non est factum.¹² Where the signed simply did not read the wavier, did not ask questions, and did not ask for the opportunity to obtain legal advice, non est factum does not apply.¹³

36. The second exception applies where the plaintiff’s signature was induced by “active”¹⁴ misrepresentation or fraud on the part of the defendant.

37. The third exception applies in circumstance where a reasonable person should have known that the person signing the wavier did not intend to be bound by its terms.¹⁵ In such circumstances, the defendant must do more than simply hand the waiver over to be signed.¹⁶ Rather, the defendant is obliged to take reasonable steps to draw the terms of the wavier to the signer’s attention.¹⁷ Failure to do so amounts to misrepresentation by omission.¹⁸ Whether this applies will depend on the circumstances, for example:

a) Whether an exclusion of liability is inconsistent with the overall purpose of the document,¹⁹ and is, therefore, “contrary to the party’s normal expectation.” ²⁰

b) The length and format of the document, and whether the exclusion of liability is buried in small print.²¹

c) The time available for reading and understanding the document.²²

d) Whether the signed asked any questions regarding the terms of the document or ever indicated he was not prepared to sign it.²³

39. As discussed above, an executed wavier can bar a claim in negligence at common law. A waiver can also preclude a statutory claim under the Occupiers’ Liability Act. Section 3(1) of the Act sets out the general duty of care that applies to an occupier of a premises.²⁴ However, the duty of care imposed by s. 3(1) does not apply where the occupier restricts, modifies, or excludes that duty.²⁵

40. When an occupier does restrict, modify or exclude its duty – through a waiver, for example – 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.”* When determining whether reasonable steps were taken for the purposes of the Occupiers’ Liability Act, the same factual analysis applies as under the common law, discussed above at paragraph 38.

21This motion turns on a distinct enquiry, both sides agree: did Sky Zone take reasonable steps to bring the terms of the waiver to Zaky’s attention?

IV. Findings

22For the reasons that follow, the motion is dismissed.

23I have concluded that there is a genuine issue requiring a trial, namely, whether Sky Zone took reasonable steps to bring the terms of the waiver to Zaky’s attention.

24On the basis of the evidence filed on the motion, and even utilizing the expanded powers under Rule 20.04(2.1), I am unable to say with confidence that the action is destined to fail because of the waiver. Further, I decline to order a mini-trial under clause (2.2).

25At the outset, it is very important to note two things: (i) Zaky was not cross-examined on any of his evidence presented on this motion, and (ii) other than the unchallenged evidence of Zaky, there is no evidence before this Court from anyone, on behalf of Sky Zone or otherwise, who was present when Zaky visited Sky Zone’s premises on July 19, 2014.

26Thus, not only is Zaky’s evidence unchallenged, it is uncontroverted as to what occurred in the mere minutes between his arrival at Sky Zone’s premises and the completion of the waiver process.

27Zaky’s evidence may be summarized as follows (see his affidavit sworn on April 12, 2016, beginning at paragraph 6 therein):

i. his only experience with Sky Zone’s waiver was on that one occasion that he visited the premises and used the kiosk to access the electronic document, and he had no familiarity at all with Sky Zone’s website or any other tool that may have referred to the content of the waiver, in whole or in part;

ii. the process by which Zaky accessed and acknowledged the electronic waiver was rushed in that the Sky Zone employee simply pointed him to the kiosk and explicitly told Zaky that he had to be “quick” in signing the waiver or he would lose jump time or be forced to jump commencing at 9:00 p.m.;

iii. it being after 8:00 p.m., and his friends having already started jumping on the equipment, after speaking with the Sky Zone employee, Zaky “walked over to a kiosk with two computer touch screens, waited for [his] turn, typed in [his] personal information, scrolled to the end of a lengthy complex document and [he] believe[s] [he] pressed an ‘Agree’ button on the last page” (clause 14 of the said affidavit);

iv. none of the important waiver of liability terms contained in the said document captured his attention, whether through the use of highlighting or bold or colour or an individual check box or prompt of any kind (it should be observed that the said document was later changed by Sky Zone to add two coloured “Agree” prompts and check boxes beside two of the key waiver of liability provisions contained therein);

v. other than Zaky’s brief interaction with the said document while at the kiosk (which, if it is true that he first entered the premises at 8:05 p.m., was very brief indeed given that he completed the waiver document, we know from the electronic signature, at 8:11 p.m.), nothing else was communicated to him by anyone or anything at the premises regarding the waiver; and

vi. Zaky did not knowingly give up his full legal rights.

28Given the above, unchallenged and uncontroverted as it is, in my respectful view, it would be dangerous to conclude on balance that there is no genuine issue for trial on the question of whether Sky Zone took reasonable steps to bring the terms of the waiver to the attention of Zaky.

29To explain most succinctly why the motion must fail, this Court agrees with and adopts the following, taken from paragraph 65 of the factum filed on behalf of Zaky dated August 17, 2016:

65. In the 2014 Summary Judgment Motion of Clarke v. Alaska Canopy Adventures, a case with very similar facts to the case at bar, the Plaintiff submitted that she was not given adequate time with the provided waiver agreement and that the guide in that case failed to put any emphasis on what was signed resulting in the Plaintiff not understanding that she was waiving her right to sue. The Summary Judgment motion was dismissed on this basis. Firestone J. stated the following:

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

26Such evidence is necessary …

30Interestingly, if one examines carefully paragraph 38 of the factum filed on behalf of Sky Zone dated June 8, 2016, which paragraph sets out eight steps that have been found in the case law to constitute reasonable efforts by a defendant to alert the plaintiff to the terms of a waiver, one is able to conclude that almost all of them do not exist on our facts, given the evidence presented by Zaky:

(a), the website, is not relevant;

(b), posted signs about the waiver, is not relevant;

(c) the simple requirement to sign a waiver before participating, that was in existence at Sky Zone;

(d) through (g), specific safeguards contained in the content of the waiver document itself, none applies to our situation; and finally

(h), sufficient time to peruse the document, not according to Zaky.

31Surely, the mere fact that there was a waiver requirement cannot, in law, constitute reasonable steps to bring the terms of the waiver to the attention of the participant.

32In the circumstances, there is no need for this Court to assess the alternative arguments put forward on behalf of Zaky, namely, that (i) the waiver document did not cover the specific act that was performed by Zaky and which led to his serious injury (a single back flip on a trampoline) and (ii) from a human factors perspective, the waiver document was deficient in several respects.

33On the latter point, Zaky has tendered proposed expert evidence in the form of a fairly lengthy report from Mr. Jason Young of Advantage Forensics Inc. dated October 16, 2019. That report outlines no less than six reasons as to why the waiver document was “deficient and ineffective”.

34Sky Zone objects to the admissibility of that proposed expert evidence on the ground that it fails to meet the necessity criterion. This Court has its doubts as to whether it should make that determination in the absence of a voir dire, but in the end it does not matter. Assuming without deciding that the said evidence is inadmissible, the motion fails nonetheless.

V. Conclusion

35The motion for summary judgment is therefore dismissed.

36Zaky, the successful party, is presumed to be entitled to some costs. If those cannot be resolved between the parties, I will accept written submissions, each one limited to three pages, excluding attachments. Zaky shall file within thirty calendar days of the release of these Reasons. Sky Zone shall file within fifteen calendar days thereafter. Without leave of the Court, there shall be no reply submissions filed.

(“Original signed by”)

Conlan J.

Released: July 16, 2020

COURT FILE NO.: CV-15-1947

DATE: 2020 07 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAFIK ZAKY

Plaintiff/Responding Party

– and –

2285771 ONTARIO INC., carrying on business as SKY ZONE INDOOR TRAMPOLINE PARK

Defendant/Moving Party

Footnotes

1. 1Loychuk, at para. 36; Trimmeliti, at para. 80
2. 2Dyck v. Manitoba Snowmobile Association Inc., 1985 CarswellMan 180(S.C.C.) [Dyck], at para. 10
3. 3Electronic Commerce Act, 2000, c. 17 [Electronic Commerce Act], s 19(1)(b)(i), Schedule “B”
4. 4Ibid, s. 19(3), Schedule “B”
5. 5Karoll, at para. 19; L’Estrange v. F. Graucob Ltd., [1934] 2 K.B. 394 (Eng) [L’Estrange], at 403
6. 6Trimmeliti, at para. 82
7. 7Ibid
8. 8L’Estrange, at 405-406
9. 9Tilden Rent-a-Car v. Clendenning, [1978] 18 O.R. (2d) 601 (C.A.) [Tilden], at paras. 13-14; Karoll, at paras. 19-20; Trimmeliti, at para. 79; Mayer, at para. 19; L’Estrange, at 405-406
10. 10Bulut v. Carter, 2014 ONCA 424 [Bulut], at para. 18
11. 11Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186 [Crocker], at para. 34
12. 12Mayer, at para. 20
13. 13Bulut, at para. 20
14. 14Karoll, at para. 26
15. 15Ibid; Loychuk, at para. 28
16. 16Tilden, at para. 24
17. 17Karoll, at para. 26; Loychuk, at para. 28; Tilden, at para. 33
18. 18Tilden, at para. 39
19. 19Karoll, at paras. 22 and 25; Tilden, at paras. 24 and 30
20. 20Ibid; Loychuk, at para. 30
21. 21Karoll, at paras. 22 and 25
22. 22Ibid; Tilden, at para. 23
23. 23Loychuk, at para. 30
24. 24Occupiers’ Liability Act, s. 3(1), Schedule “B”
25. 25Occupiers’ Liability Act, s. 3(3), Schedule “B”