Court File and Parties
COURT FILE NO.: CV-17-578468
DATE: 20210628
ONTARIO SUPERIOR COURT OF JUSTICE
RE: SARAH ARKSEY, Plaintiff
-and-
2328544 ONTARIO INC. OPERATING AS SKY ZONE TORONTO, Defendant
BEFORE: F.L. Myers J.
COUNSEL: Paul J Cahill and Christian Genova, for the plaintiff Nadia Marotta, for the defendant
HEARD: June 25, 2021
Amended ENDORSEMENT[^1]
Background
[1] The defendant moves for summary judgment to dismiss the plaintiff’s claim for damages for personal injury. The motion is based entirely on the terms of a waiver and release of liability signed by the plaintiff. For the purpose of this motion, I assume that the plaintiff’s injury was caused by the negligence of the defendants as alleged.
[2] In my view, this claim cannot succeed in face of the waiver signed by the plaintiff. It is hard to imagine a more explicit waiver or one that was brought to the attention of the signer more explicitly.
[3] I do not understand the law to be that waivers of liability are unenforceable or illegal. Nor are they to be circumvented by artful interpretation. Rather, they are to be construed contra proferentem, narrowly, carefully, and applied for their objectively determined meaning.
[4] In my view, the waiver signed by the plaintiff in this case brought home to a reasonable reader that liabilities of the type claimed by the plaintiff were waived and were not actionable.
[5] Although the test is not subjective, I note that the plaintiff's evidence was that she chose not to read the waiver. Moreover, she agreed that there were no terms that would have deterred her from signing the waiver so as to be allowed to participate in the potentially dangerous activities that led to her injuries.
[6] While this does not affect at all the objective interpretation of the contract terms, it deprives the plaintiff of any response related to what she actually knew or intended to the extent that might have been relevant.
Summary Judgment is Appropriate
[7] Both counsel agree that the issue of the applicability of the waiver can and should be determined now with finality. The plaintiff does not ask me to find that there is a genuine issue requiring a trial on the enforceability of the waiver. All available evidence is before the court. The parties have had both examinations for discovery and cross-examination on affidavits. Each has put her or its best foot forward.
[8] I raised with counsel for the plaintiff the Court of Appeal’s decision in Skunk v Ketash, 2016 ONCA 841, and the distinction between interlocutory and final determination of an issue on the dismissal of a motion for summary judgment. He was explicit in his submission that the evidence will not change at trial so that the issue was ripe for final resolution one way or the other on this motion.
[9] I have considered this question myself under Rule 20.04 (2)(b). I agree with counsel that given the thorough record, the lack of any real contest on the facts, and the relatively narrow range of the issues required to decide the outcome, this is a case that should be resolved summarily. I can find the facts fairly using the summary judgment process as I can accept the plaintiffs’ evidence as being true and correct, with no effect on the outcome. I can apply the law to the facts in an efficient, affordable, and proportionate process to yield a fair resolution.
FACTS
[10] The plaintiff went to the defendant’s facility to play a recreational game of trampoline dodgeball. Both parties agree that the game is one that involves inherent risks of danger to participants’ health.
[11] I will deal with the facts about signing the waiver separately. Here, I deal only with the plaintiff’s injury.
[12] It is Ms. Arksey’s evidence that once admitted to the facility, she was directed to her friends’ game without anyone instructing her on the rules of the game or safety protocols. There was no employee present in the game room to monitor the game.
[13] Ms. Arksey says that while she was in mid-air someone on her own side of the court threw a ball that hit her on the back of her right knee. She felt a snapping sensation and stumbled off the trampoline. The plaintiff was not expecting someone on her own side to throw a ball at her. Doing so was not part of the game although no actual game had started by that time in any event.
[14] An employee of the defendant came to see to Ms. Arksey. After Ms. Arksey had rested for about 20 minutes, the employee suggested that Ms. Arksey just go back into the game as her injury did not seem significant.
[15] Ms. Arksey climbed onto the trampoline. On bouncing, she landed on her right leg and felt her knee come apart. She experienced a drastic increase in pain and swelling.
[16] Dr. West adduced expert medical evidence for the plaintiff. He opines that Ms. Arksey suffered a right knee medial meniscus tear and anterior cruciate ligament tear. Moreover, her injuries were caused by the second round of jumping rather than by her initial injury.
[17] The defendant’s witness on discovery agreed that its policies were not followed by the employee who came to Ms. Arksey’s aid after her first injury. At minimum, he should have reported the injury to the manager and given Ms. Arksey ice.
The Claims of Negligence
[18] I quote from the plaintiff’s factum:
The Plaintiff's position is that the waiver and doctrine of voluntary assumption of risk bars only injuries that are inherently reasonably foreseeable in the subject sport. In this case, the Plaintiff was playing trampoline dodgeball.
Factually, the Plaintiff states that there are two instances of negligence on the part of the Defendant, both of which fall outside the four corners of the waiver and the doctrine of voluntary assumption of risk. Moreover,
(a). The Plaintiff's initial injury to her knee occurred due to another patron improperly throwing a dodge ball at her (he was on the same side of the court, as opposed to the opposite side of the court). This incident happened because the Defendant failed to instruct this patron on the rules of the game, and further failed to supervise the game.
(b). After the Plaintiff was injured, she sought assistance from the Defendant however, it failed to follow its own policies, and instead encouraged the Plaintiff to return to play where she was significantly further injured.
- Neither of these scenarios, i.e. the failure to instruct/supervise other patrons and the failure to follow patron injury policies form part of the waiver drafted by the Defendant. Nor do these circumstances fall within what a reasonable dodgeball trampoline player would assume to be inherent risks of the game. [Emphasis in original.]
[19] The issue on this motion then, is whether the plaintiff waived her claims for damages arising from the risk of injury caused by both the defendant’s negligent failure to instruct or supervise the other patron on the rules of the game and its negligent failure to follow its injury policies.
The Waiver
[20] This case involves an explicit waiver signed by the plaintiff. There are other cases considering liability where there are unsigned waiver terms printed on a ticket or buried elsewhere in a patron’s dealings with the defendant. That is not the case here.
[21] A person who actually signs a waiver will be presumed to have intended to be bound by it. Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 at para. 40.
[22] The British Columbia Court of Appeal also made the point that knowledge of the agreed terms is presumed. It is generally no excuse to say that one did not read the contract she signed.
[79] In cases involving signed contracts, knowledge of what the contract contained is presumed. Consequently, as pointed out in Karroll at p 164, as a matter of contract law, "the rule that a party proffering for signature an exclusion of liability must take reasonable steps to bring it to the other party's attention" is "a limited principle, applicable only in special circumstances." Accordingly, it is generally no excuse to say, "Although I signed the contract, I did not read it."
[23] There is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. If a plaintiff is provided with an opportunity to read the agreement, it is up to her to choose whether to read it or not.
[24] Firestone J (as he then was) expressed this principle in Clarke v. Alaska Canopy Adventures LLC, 2014 ONSC 6816, as follows:
24 The onus is not, as Clarke alleges, on Alaska Canopy to ensure that Clarke has read and understood the provisions of the contract that she voluntarily signs. In Niedermeyer v. Charlton, 2014 BCCA 165 (B.C. C.A.) at para. 29, citing an earlier passage by McLachlin C.J.S.C.B.C., as she then was, in Karroll v. Silver Star Mountain Resorts Ltd. (1988), 1988 3094 (BC SC), 33 B.C.L.R. (2d) 160 (B.C. S.C.), the court states:
... there is no general requirement that a party tendering a document for signature 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.[Emphasis in original.]
[25] There is no indication or claim on the facts that the defendant ought reasonable have known that the plaintiff was not consenting to the terms that she signed. To the contrary, by all subjective and objective accounts, the plaintiff consented to the waiver as discussed below.
[26] In this case, the defendant directed the plaintiff to a Waiver Kiosk to review its required waiver. There was signage to that effect as well.
[27] At the Waiver Kiosk, the plaintiff interacted with a computer with a touchscreen. To operate the computer, the plaintiff had to touch the screen with her finger(s) in appropriate places.
[28] The first page of the computer process starts with a large title: It is above the text and followed by a significant space. A reasonable user could not have missed the title:
Sign A Liability Waiver
[29] The title of the next page was also in large font and said:
Enter Your Waiver Information Here
[30] The computer screen displayed a keyboard that the plaintiff used to manually type and enter her name, address, phone number, gender, date of birth, and email address as her “waiver information”.
[31] The next pages also has a title. It is in white offset against a black background that frames the screen. It is thereby bolded and in an even bigger font than the prior two titles. It says:
Please Review Your Waiver
[32] Below this title is a subtitle written and emphasized as follows:
SKY ZONE INDOOR TRAMPOLINE PARK
Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement. By signing this document, you will waive certain legal rights, including the right to sue.
PLEASE READ CAREFULLY!
[33] The legal terms follow. But rather than just allowing the user to scroll through them, the form required the plaintiff to touch her finger to a box beside each of the two key paragraphs on the screen to specifically enter a checkmark beside the words “I agree” beside each paragraph.
[34] The plaintiff indicated her express acceptance and agreement to the terms set out in paras. 1 and 3 of the waiver document by using her finger to place checkmarks in each of the specific boxes. I find that those boxes were designed to, and did necessarily, draw the plaintiff’s attention to the specific terms of each of the two key paragraphs of the waiver whether she chose to read them or not. The plaintiff accepted both before pressing the general “Accept” button at the bottom of the screen.
[35] The plaintiff agrees that she had all the time she needed to read and sign the waiver. No employee of the defendant was with her. No one hurried her. She knew that signing was required if she wanted to play the game and she signed to obtain the right to do so.
[36] Para. 1 of the waiver deals with the scope of the risks being undertaken by the plaintiff. It says:
I acknowledge that my participation in Sky Zone trampoline games or activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: cuts and bruises; falling off of equipment; muscle and joint sprains and strains; broken wrists, ankles and legs; participants falling on each other resulting in broken bones and other serious injuries; double bouncing (more than one person per trampoline) can create a rebound effect causing serious injury; flipping, running and bouncing off the walls can cause serious injury; colliding with or being landed on by jumpers of a different size. Sky Zone employees have difficult jobs to perform. They seek to create a safe environment but they are not infallible. They might be unaware of a participant's health or abilities. They may give incomplete warnings or instructions and the equipment being used might malfunction. Traveling to and from trampoline locations raises the possibility of any manner of transportation accidents. 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. [Emphasis in original.]
[37] I repeat the salient term here:
Sky Zone employees…may give incomplete warnings or instructions… 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.
[38] The plaintiff expressly accepted the risk that employees might give incomplete warnings or instructions.
[39] Para. 3 of the waiver provides:
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. 1990c. 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. [Capital letters in original.]
[40] The plaintiff released all claims for any cause whatsoever as a result of her participation in the game including for negligence, breach of contract, and under the Occupier’s Liability Act. The final words of the release say:
...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.
[41] Recall as well that this all follows the explanation or warning in the bolded sub-title above the waiver terms:
By signing this document, you will waive certain legal rights, including the right to sue.
Interpretation
[42] The contract has to be interpreted to determine whether it waives the risks and claims asserted. As noted above, waivers are narrowly construed against the drafters. But, absent a defence like non est factum, they are not void or voidable.
[43] The plaintiff is an adult. She is entitled to enter into contracts concerning her legal rights and to have the contracts respected and enforced in accordance with their properly construed terms.
[44] Both counsel agreed that the contract terms are to be understood in their plain meaning, in the context of the agreement as a whole, and against the backdrop of the objective factual matrix.
[45] The factual matrix here is a waiver required by the defendant to allow the plaintiff to play an inherently dangerous game at its place of business. The context dictates that the defendant must take reasonable steps to bring the terms of the waiver to the plaintiff’s attention under the Occupier’s Liability Act. In addition, the court adopts a narrow interpretation of exclusion clauses generally so as to avoid inconsistency with the purpose of the agreement. The exclusions should not be read expansively and should not overwhelm the rights bargained for by the parties.
[46] For example, the use of the word “negligence” on its own is often insufficient to find that the plaintiff has waived all possible forms of negligently caused injury. The words must be construed to determine if the parties can reasonably be said to have agreed on the exclusion of liability in the context of the case at hand.
[47] In Ochoa v. Canadian Mountain Holidays Inc., [1996] B.C.J. No. 2026, at para. 136, the court held:
Any waiver seeking to cover negligent conduct must surely contain something more than the word negligence. That something more would include, at the least, a context for the word negligence describing the kind of conduct amounting to negligence which is intended to be covered. In order for a court to find the term sufficient to cover any negligent behaviour, it must be satisfied that the individual signing it, if he read it, could reasonably be expected to understand its meaning. I hasten to add that the authorities on this subject do not require that that understanding be objectively found on the waiver alone. It may be gleaned from the circumstances of the individual's knowledge of the activity at issue coupled with the document under consideration. On that basis, I find that the waiver in this case, signed by Mr. Ochoa, meets that test. First, the waiver format and substance, if read carefully, can reasonably be understood to include a waiver of liability for negligence or a want of due care of CMH and its staff in its conduct, particularly in relation to assessing avalanche hazard. Such a risk is dealt with specifically and generally as a risk contemplated by the waiver. Second, the format of the waiver is not at all deceptive or difficult to read. While some of the print is small, it puts in bold letters several attention-getting words of warning that legal rights are at issue. Finally, CMH takes several steps to ensure that each of its guests is aware, well in advance of the trip, of the requirement to sign a waiver as a condition of heli-skiing with CMH and that CMH considers the document important. These steps include requiring that the signature for the waiver be witnessed separately from the application form which accompanied it. These steps add to the conclusion that the meaning of the waiver is neither obscure nor unreasonable. The very type of conduct alleged to be negligent in this action is specifically contemplated by the words of the waiver. I have no hesitation in finding that the negligence alleged in this action is covered by the waiver. [Emphasis added.]
[48] This is the very circumstance that exists in this case. The defendant was clear and not at all deceptive in what it required. If the plaintiff wanted to play at its premises, she had to agree to the terms of the waiver.
[49] The waiver, by its express terms, warned of the risks that employees may not give complete instructions and warnings and that these risks could result in the employees negligently not protecting her from the dangers of playing.
[50] The defendant took reasonable steps to bring the terms to the plaintiff’s attention. There was a signage, a separate kiosk, and the computer screens required the plaintiff’s attention and deliberate, voluntary conduct. Short of standing over her and forcing her to read the terms and say out loud to a video recorder that she agrees to play at her own risk despite injury, I do not know what more the defendant could have done to alert the plaintiff.
[51] The plaintiff’s lawyer submits that bearing in mind consumer protection policy, I should look to determine if the waiver is fair and balanced. He agrees that society wants people to be free to engage in risky activities if they choose to do so. But, the proprietors are also expected to be liable for their misdeeds as we all are.
[52] The plaintiff submits that the waiver is too vague for the plaintiff to have known what she was giving up.[^2] The waiver does not say, for example, “Do not expect our employees to do their jobs” or “Do not expect our employees to keep you safe”. Moreover, he argues that it is wrong to construe the exclusion wording in para. 3 of the waiver as drawing on the acknowledgement of risk language in para. 1 of the waiver.
[53] I disagree. In construing the exclusion clause to determine if it reasonably brought to the plaintiff’s attention the kind of conduct amounting to negligence which is intended to be covered, the court must consider the contract as a whole. As set out in para. [40] above, para. 3 of the waiver expressly excludes liability for “risks”. To understand what risks are excluded, reference to para. 1 is required to see the scope and description of the risks identified in the agreement.
[54] In any event, as I found above, the contract did cover the context in which the risks occurred in this case. The contract does say expressly that employees may not give complete instructions and warnings and that participants cannot expect employees to keep them safe – in capital letters.
[55] From a consumer protection orientation, consumers should expect honest, open dealings. They should be protected from deceptive practices, from onerous liabilities being buried in fine print, and from abuse of power to extract unconscionable terms for example.
[56] But consumers are also free to agree to take risks and to agree upon unbalanced waiver clauses to do so as long as they are able to make deliberate, knowing, voluntary choices.
[57] Counsel for the plaintiff submits that Ms. Arksey agreed to waive risks inherent in the activity. She should not be understood to have waived risks from the defendant not doing what it said it would do. That may be her wish today. But those terms were not on offer from the defendant. The waiver says what it says and it expressed the terms to which the plaintiff agreed.
[58] The exclusions here do not undermine the terms of the agreement. The defendant was not deceptive in the least. The defendant is not, for example, promising insurance coverage, and then taking it away in exclusions in the small type. The deal here was that the plaintiff could use the defendant’s facility to play the risky game with her friends provided she did not hold the defendant responsible for damages incurred on the grounds waived.
[59] The plaintiff exercised her autonomy to weigh the risks and benefits of the proposed transaction. She then entered into an agreement that affected her legal rights. That is exactly what consumers are entitled to expect and to do.
[60] Accordingly, the action is dismissed.
[61] The defendant may deliver cost submissions no later than July 5, 2021. The plaintiff may deliver cost submissions no later than July 12, 2021. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages. Both parties shall deliver Costs Outlines if they deliver submissions.
[62] All costs material is to be filed through the Civil Submissions Online portal and uploaded to Caselines although counsel will not have received confirmation of the acceptance of their filings from the registrar.
[63] No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.
F.L. Myers J.
Date: June 28, 2021
[^1]: I have discovered a typographical error that I should have picked up in editing the draft. The word “not” was missing from the last sentence of para. 45 – before the word “be”. The rest of the sentence makes the typo apparent in any event. I have made the change and underlined it below on June 30, 2021.
[^2]: I consider this submission as going to what a reasonable plaintiff would have objectively understood given the plaintiff’s evidence that she chose not to read the agreement.