ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Avery Grouette-McDougall
R. Clinker, for the Plaintiff (Responding Party)
Plaintiff
- and -
Loran Scholars Foundation
S. Cumbo-Steinmetz, for the Defendant (Moving Party)
Defendant
HEARD: October 27, 2021, at Thunder Bay, Ontario via Video Conference
Mr. Justice F. B. Fitzpatrick
Judgment on Motion for Summary Judgment
1The defendant Loran Scholars Foundation (Loran) moves for an order for summary judgment dismissing the claim of the plaintiff Avery Grouette-McDougall (Avery) in its entirety.
Background
2This claim was brought pursuant to the Simplified Rules. The key facts relevant to this claim and this motion occurred between December 18, 2019 and February 12, 2020.
3At the time, Avery was completing her final year of high school in Marathon, Ontario. She applied to become a Loran Foundation Scholar. Loran provides annual scholarships to young Canadians. The scholarships are based on the character of the applicants. The scholarships are one-year renewable awards given to persons who demonstrate strong leadership qualities such as courage, integrity and the potential to positively impact society. The application process involved multiple rounds, which lead ultimately to an invitation to finalist applicants to attend an in-person event in Toronto called a “Loran Scholars Nationals Selections”. At that event, interviews are conducted and a final selection made for the recipients of the award for the next academic year.
4On December 18, 2019, Avery was informed she had been selected as a Finalist for the Scholarship. She was invited to attend the National Selections in Toronto which was scheduled to take place from January 30, 2020 through to February 1, 2020. This was right before the pandemic hit Ontario.
5On December 18, 2019, Avery received an email package from Loran containing information about National Selections. Included in the package was a document entitled “Release of Liability, Waiver of Claims and Assumption of Risk (the “Waiver”). She was asked to sign and return the Waiver by January 5, 2020.
6Avery read, signed and returned the Waiver by email on December 20, 2019. It was witnessed by two other adults. Avery was an adult at the time of her signing the Waiver. Avery did not ask Loran to explain the Waiver. Loran did not offer to explain the Waiver. The email from Avery to Loran returning the signed Waiver read “Good afternoon Please find attached my signed release of liability, waiver of claims and assumption of risk. Happy Holidays!”
7The terms of the Waiver were a central focus of the argument on this motion. A copy of the Waiver is attached as Schedule “A” to this judgment.
8Avery attended the National Selections in Toronto. On February 2, 2020, Avery received a telephone call from a representative of Loran. Avery was advised she had been selected as a Loran Foundation Scholar and would be a recipient of a scholarship.
9At some point after February 2, 2020 but before February 6, 2020, Loran discovered a so-called “hot or not” list had been circulated among the finalists who had attended the National Selections. On this motion, there was no direct evidence containing particulars about this list, what form it took, who was on it, or how it was circulated. In any event, the fact it was circulating among the finalists created a concern among Loran officials sufficient for them to conduct three phone interviews with Avery, on February 6, 7 and 11, 2020. The only evidence about these calls was put before the Court by Avery.
10On February 12, 2020 Loran advised Avery “my Award was being rescinded as they (Loran) were now of the opinion that I did not have the qualities of a Loran Scholar. They did not provide any reasons as to why or how they reached that conclusion”.
11The only evidence placed before the court by Loran on this motion was an affidavit from a clerk employed by defendant’s counsel. This evidence included the pleadings and other relevant documents including the Waiver.
The Legal Test
12The parties agree on the well-known test on motions for summary judgment. Under Rule 20.04(2)(a), the court “shall” grant summary judgment if there is no genuine issue requiring a trial. Where there might be a genuine issue requiring a trial, the Rules empower a judge to weigh evidence, receive oral evidence, and evaluate credibility. The starting point is the evidence before the court. Each party is assumed to have put its best foot forward. If a summary judgment motion can result in a fair and just process, it is to be preferred. A trial should be ordered only where the reasons for it are compelling.
13A fair and just process is achieved when:
(a) the court can make the necessary factual findings;
(b) the court can apply the law to those facts; and
(c) the result is proportionate, more expeditious, and less expensive than a trial.
Issues and Analysis
Scope of the Waiver
14Loran argues the execution of the Waiver by Avery bars her claim in all respects. The Waiver is a complete answer by Loran to Avery’s claim and there is no genuine issue for trial.
15Avery admits she signed the Waiver in front of witnesses. Avery argues the Waiver had a much more limited scope than that argued by Loran. It was intended to only cover any potential claim arising from the events of National Selections, which is to say the January 31 to February 2, 2020 period. The decision made by Loran to not extend Avery a scholarship was based on Avery’s responses to questions put to her after that period. As such the Waiver does not apply.
16I am persuaded the Waiver does apply to Avery’s claim. I am persuaded the Waiver is a complete answer to Avery’s claim in all respects. I am persuaded there are no genuine issues requiring a trial in this matter. I grant summary judgment dismissing Avery’s claim for the following reasons.
17The parties agree the legal test for enforcement of a waiver was set by the Supreme Court of Canada in Tercon Contractors v. British Columbia (Transportation and Highways) 2010 SCC 4. At paragraphs 122 and 123 of Tercon the Supreme Court states that the test is to be applied in the following three steps:
(a) As a matter of contractual interpretation, does the exclusion clause apply to the circumstances as established by the evidence in the case?
(b) If the exclusion clause applies, was the clause unconscionable at the time the contract was made, as might arise from situations of unequal bargaining power between the parties?
(c) If the exclusion clause is held to be valid and applicable, should the Court nevertheless refuse to enforce the clause because of the existence of an overriding public policy concern?
18The parties agree the Waiver was a contract. It must be interpreted in accordance with the relevant principles of contractual interpretation. In Creston Moly Corp. v. Sattva Capital Corp. 2014 SCC 53 at paragraph 57 the Supreme Court of Canada enunciated the following contract interpretation principles:
a. surrounding circumstances will be considered in interpreting the terms of a contract;
b. the goal of examining evidence regarding surrounding circumstances is to deepen the decision maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract;
c. the interpretation of a written contract must always be grounded in the text and read in light of the entire contract; and
d. the Court cannot use the surrounding circumstances to deviate from the text so that the court creates a new agreement.
19Avery argues the Waiver is limited in its application to losses, damages or injuries occurring only between January 31, 2020 and February 1, 2020. This is because of the express wording in the Waiver dealing with travel, personal injury and the consent portion at the bottom of the Waiver referencing the student travelling alone, unsupervised to Toronto and how Loran cannot assume liability for the safety and welfare of the candidate including while swimming. Further, she argues the events that led Loran to deny her the scholarship occurred during the interview process that occurred after the events of the National Selection weekend.
20Loran argues the Waiver contains a broad release of liability. It addition to Sattva, Loran points to the decision of the Supreme Court of Canada in Corner Brook (City) v. Bailey 2021 SCC 29 at paragraph 27 which affirmed a broadly worded release is enforceable and “does not necessarily need to particularize with precision the exact claims that fall within its scope”.
21I am persuaded by Loran’s argument that the Waiver is to be broadly interpreted. In assessing the first branch of the test from Tercon Contractors, I find on the evidence that the Waiver applies to the circumstances of the claim. I appreciate that the only direct affidavit evidence about the events of the National Selections was filed by Avery. However, it is clear that Avery went to Toronto to participate in National Selections. The Waiver in its very first sentence says “By signing this document you give up any legal rights you may have to sue Loran Scholars Foundation in the event you suffer any loss, injury or damage as the result of your participation in the Loran Scholars Foundation National Selections”. Avery’s claim arises from a loss she says as the result of her participation in the National Selections. She claims she was awarded a scholarship as the result of her participation in National Selections. She argues she had the scholarship as the result of the phone call she got on February 2, 2020. In my view, her loss arises from her participation in National Selections. But for her attendance there, she would not have been given the scholarship. I appreciate Loran’s argument that until the formal contract was signed and the scholarship monies were advance there was no such agreement. In any event, I see the Waiver as Loran requiring, and Avery expressly agreeing, not to sue Loran no matter what happened at the National Selections.
22The National Selections event existed only to determine who would be granted the opportunity to have a scholarship and who would not. I see the grant of a scholarship as an entirely gratuitous event by Loran. I do not see any recipient of such as scholarship as being entitled to anything until, at a minimum, there is some part performance of the scholarship contract or the recipient engages in some act of detrimental reliance upon which a claim for damages for breach of this gratuitous promise can arise. In this case, none of those events had yet occurred, even after the weekend events were over.
23In my view, as a matter of contractual interpretation I find the Waiver did apply to the circumstances of this case. The evidence in this matter will be no way improved by a trial. Avery’s position will be in no manner improved by the calling of further vive voce evidence from either party. A summary judgment motion in this Simplified Rules case was a proportionate, more expeditious, and less expensive manner to resolve this dispute.
24I did not understand Avery to be arguing that the applications of the other two parts of the three-fold test in Tercon would be to her benefit on this motion. In any event, I do not see the Waiver as being unconscionable at the time the contract was made. In my view, the concept of the inequality of bargaining power would not affect my decision to grant judgment in this situation given the nature of the contract. The Waiver was limiting Avery’s right to sue Loran about things that might happen during the weekend, including any decision Loran may or may not have made about the scholarship. Avery now sues for damages for the loss of a scholarship which she asserts was granted on February 2, 2020. I do not find that assertion persuasive as I see the scholarship as being one for which Avery had no right at any material time to the claim at issue. Avery had the right to apply for a scholarship, and to go Toronto to pursue her application but she expressly agreed not to sue Loran no matter what happened during the National Selections. I agree with Loran’s submissions as to the nature of the scholarship as being discretionary. This aspect of discretion is an essential aspect of the entire relationship between Avery and Loran.
25In the context of Loran requiring the Waiver to be signed, objectively, I see the parties bargaining power as being equal. If Avery did not want to sign the Waiver and continue with the application process, she remained in the exact same position in her life. Her high school career continued, and she was free to make whatever life choices she wanted regardless of what Loran did or did not do. If she signed the Waiver, she would continue to compete for a chance at something that could improve her long-term and short-term life situation but was not in any way critical to either. The Loran scholarship process offered no guarantees about anything. However, Loran wanted to limit its liability. In my view, this is a reasonable position for an organization of this nature to assume for all applicants. It is a not a commercial enterprise. It is a charitable privately funded foundation providing scholarships based essentially on the character of the applicants. The discretionary aspect of the scholarship overarches the entire process.
26I see Avery’s argument about the scope of the Waiver being overly broad as itself being unduly technical when objectively assessing the entirety of the circumstances. In my view, this dovetails with the concept of unconscionability. While there is no question the Waiver did deal with specific potential circumstances like a candidate being injured while swimming, it is worded in plain English. In my view, it does not represent an improvident bargain or an abuse of some inequity of bargaining. It can be plainly interpreted as covering this exact claim. The intent of the Waiver to protect Loran from lawsuits was clear on its face. Loran did not ever want to be sued for whatever decisions it made about the scholarship. Accordingly, and reasonably, it asked candidates, like Avery, to agree to this broad limit, which she did, and now Loran seeks to enforce that condition of participating in the process.
27I also see no overriding public policy concern about the enforcement of this Waiver. Loran is a privately funded charitable organization. It seeks to advance young Canadians in their post-secondary studies. This is a laudable goal which should be protected within the bounds of law. I see it as a reasonable public policy goal for such organizations to attempt to limit their litigation exposure as best they can. I do not see applicants for such scholarships as being in need of any additional or special treatment or protection, despite their youth, in the context of assessing the public policy considerations regarding enforceability of the Waiver at issue.
28For all these reasons summary judgment is granted. The claim is dismissed with costs. The parties agreed the successful party would receive $3,000.00 in costs inclusive of disbursements and HST. Avery shall pay these costs to Loran forthwith.
29On this motion there were additional arguments made by Loran as to why portions, if not all, of the claim, should be struck out. These arguments focused on the claim for breach of contract and damages for negligent investigation and negligence asserted in the pleading. Counsel for Avery raised the point during the pre-hearing process for this motion about Loran not properly framing these arguments in their motion material as being governed by the provisions of Rule 21. I agree with counsel for Avery, that these arguments should have been cast in another way given the difference between a Rule 20 summary judgment motion and a motion to strike under Rule 21. However, given my disposition of the summary judgment motion I do not see it as necessary to further address these arguments.
30I thank both counsel for their focused advocacy and well written motion material.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: November 25, 2021
COURT FILE NO.: CV-20-0329-00
DATE: 2021-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Avery Grouette-McDougall
Plaintiff
- and -
Loran Scholars Foundation
Defendant
JUDGMENT ON MOTION FOR SUMMARY JUDGMENT
Fitzpatrick J.
Released: November 25, 2021
/lvp
LORAN SCHOLARS FOUNDATION | FONDATION BOURSIERS LORAN
460 Richmond Street West #502, Toronto, ON M5V 1Y1
T 416 646 2120 | 1 866 544 2673 F 416 646 0846
www.loranscholar.ca | www.boursierloran.ca
RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISK
By signing this document, you will give up any legal rights you may have to sue the Loran Scholars Foundation in the event that you suffer any loss, injury or damage as a result of your participation in the Loran Scholars Foundation National Selections. Please read this document carefully.
In consideration of the funds received from the Loran Scholars Foundation to participate in the National Selections (the “Program”) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned (the “Releasor”, which term includes the undersigned’s successors, assigns, heirs, executors, estate trustees, personal representatives and administrators) hereby remises, releases and forever discharges the Loran Scholars Foundation and its present and former directors, officers, agents, servants, employees and volunteers (the “Releasees”, which term includes their respective successors, assigns, heirs, executors, estate trustees, personal representatives and administrators) of and from all actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, claims and demands whatsoever, known or unknown, suspected or unsuspected (collectively, the “claims”) which the Releasor ever had, now has or may hereafter have against the Releasees, or any of them, for or by reason of, or in any way arising out of any cause, matter or thing existing up to the date hereof relating to, or arising directly or indirectly by reason of or as a consequence of, the Releasor’s participation in the Program and any travel in connection therewith, including, without limitation, any claims in respect of any loss, injury or damage to personal property or personal injury of any nature whatsoever or death alleged to have resulted from the Releasor’s participation in the Program however so caused, including negligence of, or breach of contract or statutory duty, by the Releasees.
The Releasor understands and agrees that his/her participation in the Program is voluntary. The Releasor freely accepts and fully assumes responsibility for using reasonable judgment in all aspects of his/her participation of the Program and for any injuries or damages resulting from his/her participation in the Program.
The Releasor grants permission to the Releasees to use photographs, video, or biographical information of the Releasor taken/collected during the Program in publications, news releases, online, and in other communications related to the mission of the Releasees.
The Releasor acknowledges that he/she has read and understands this entire waiver and release and agrees to be legally bound by it.
IN WITNESS WHEREOF the Releasor has executed this waiver and release. DATED this of (Month/Year)
SIGNED, SEALED and DELIVERED in the presence of:
Candidate Name (Typed or Printed)
Witness Name (Typed or Printed)
Parent / Guardian Name (Typed or Printed)
Witness Signature
Releasor Signature (Candidate if 18 or over; parent/guardian if under 18)
CONSENT: The undersigned are the parent(s)/legal guardian(s) of the Candidate and consent to the Candidate traveling unsupervised alone to Toronto and participating in the Loran Scholars Foundation National Selections. The undersigned acknowledge that the foundation will have no obligation to supervise the Candidate and that the foundation cannot assume or be liable for the safety and welfare of the Candidate, including while swimming, should the Candidate choose to swim.
Parent or Guardian Signature