Court File and Parties
COURT FILE NO.: CV-17-335-00
DATE: 2021/12/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Randall French, Brianna French, Mary-Jane Ritchie and Terry French, Plaintiffs
AND
Augusta Motorsports Park, Wheels A Churnin, Onne van Hoek, Myles Lessard and The Economical Insurance Group, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: Gavin Cosgrove, for the Plaintiffs Chester Wydrzynski, for the Defendants Augusta Motorsports Park, Wheels A Churnin, and Onne van Hoek
HEARD: July 30, 2021
Endorsement on Summary Judgment Motion
Overview
[1] On July 25, 2015, Randall French (“Randall”) was riding his four-wheel drive vehicle up a sand pit at Augusta Motorsports Park in Brockville when the vehicle tipped backward and landed on him. As a result of the accident, Randall was seriously injured. In this action, Randall claims damages for personal injury, based in part on the defendants’ alleged failure to maintain the sand pit. The other plaintiffs advance claims under the Family Law Act, R.S.O. 1990, c. F.3.
[2] The defendants, Augusta Motorsports Park, Wheels A Churnin, and Onne van Hoek (collectively, “Augusta”)[^1] move for summary judgment to dismiss the plaintiffs’ claims. The motion is based on the terms of a release of liability and waiver of claims document signed by Randall (the “Waiver”).[^2]
[3] The plaintiffs assert that this is not an appropriate case for summary judgment because there are genuine issues requiring a trial regarding the interpretation and applicability of the Waiver and whether Randall knew that he was signing a waiver.
[4] For the following reasons, I conclude this is a case that should be resolved summarily. The plaintiffs’ claim cannot succeed in the face of the Waiver signed by Randall. The Waiver brought home to a reasonable reader that liabilities of the nature claimed by Randall were waived and were not actionable.
Summary Judgment is Appropriate
[5] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” A judge hearing a motion for summary judgment has the power to weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence: r. 20.04(2.1).
[6] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 49.
[7] The analytical approach set out in Hryniak, at para. 66 requires that the motion judge undertake a two-step approach. First, the motion judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1). Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine if the need for a trial could be avoided by using the enhanced powers under rr. 20.04(2.1) and 20.04(2.2).
[8] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue requiring a trial. Once this burden is discharged, the responding party must prove that its claim has a “real chance of success.” Each party must put its best foot forward to establish whether or not there is an issue for trial; the court is entitled to assume that the record contains all the evidence the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878.
[9] The record before me is thorough. It includes the affidavit of Mr. van Hoek, the owner of Augusta Motorsports Park, the affidavit of Jennifer Holder, a long-time volunteer with Augusta Motorsports Park whose duties include training and supervising the volunteers for the Wheels a Churnin event, and the affidavits of two occasional employees who worked at the Wheels a Churnin event. Augusta also relies on the affidavit of Jessica Trinity, a professional photographer who shot photos of the event and who was required to go through the front gate registration process. The record also includes the affidavits of Randall and Brianna French.
[10] The parties have conducted examinations for discovery and cross-examinations on affidavits. I note that the plaintiffs included their own examination for discovery transcripts in their motion record. Augusta did not consent to the plaintiffs’ use of their own examinations for discovery and therefore, the plaintiffs are precluded from relying on their discovery evidence on the motion: r. 39.04(2).
[11] The issues required to determine the outcome are narrow. Given the thorough record, I am satisfied that I am able to make the necessary findings of fact and to apply the law to the facts to arrive at a just determination on the merits.
The Facts
[12] On July 25, 2015, Randall and his friend, Claire Sly, attended the Wheels A Churnin motorsports event at Augusta Motorsports Park. The event involved various races, including those involving all-terrain vehicles, tractor and truck pulls, drag races, and mud drags.
[13] When Randall arrived at the park, he was presented with and signed the one-page Waiver. There is evidence as to the manner in which the Waiver was presented to patrons: patrons were told they were signing a waiver; patrons were asked to read the Waiver; patrons were given adequate time to read the Waiver; and volunteers were to answer any questions about the Waiver.
[14] In his affidavit, Randall states that he understood that he was signing a registration form, but not a waiver. On his cross-examination, Randall agreed that no one rushed him through the registration process. He agreed that he had the opportunity and was provided with sufficient time to read the Waiver had he chosen to do so. He also agreed that he could have asked questions about the Waiver and had the opportunity to have the Waiver explained to him. He did not tell the volunteer who presented the Waiver to him that he did not understand what he was signing. He acknowledged that he was participating in an event where he would be driving a four-wheel drive vehicle where there was a risk of injury, and that there were rules associated with attending the Wheels a Churnin event.
[15] There were several warning signs on the property to advise participants of the event rules. There was a warning sign posted on the ticket booth and elsewhere on the property, including in the washrooms, that advised participants they were signing a release and waiver. The sign stated in part:
Warning. You are signing a Release. Know what it says…copies available. The holder of this pit pass acknowledges signing the release and waiver, in exchange for admittance to the restricted area. By signing, holder has waived certain legal rights, and acknowledges the potentially dangerous nature of activities in and adjacent to restricted areas.
[16] Randall did not participate in any of the races at the Wheels A Churnin event. The accident took place at a sand pit – a restricted area – at the park. According to Mr. van Hoek, the owner of the park, the sand pit was cordoned off with caution tape. Randall maintains that he had unfettered access to the sand pit during the event. Randall does not recall any warning signs around the sand pit and claims that he was never told he could not use the sand pit.
The Waiver
[17] The law relating to waivers was recently summarized by Myers J. in Arksey v. Sky Zone Toronto, 2021 ONSC 4564, at paras. 21-24:
[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. [citations omitted] 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.]
[18] As in Arksey, there is no indication that Augusta ought reasonably to have known that Randall was not consenting to the terms that he signed. To the contrary, by all subjective and objective accounts, Randall consented to the terms of the Waiver.
[19] The Waiver is a one-page document. The title of the document is set out in bold, capital letters:
RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT
BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE
PLEASE READ CAREFULLY
[20] A reasonable person could not have missed the title.
[21] The description and location of the scheduled event (defined as the “EVENT”) is written in: Augusta Motorsports Park “Wheels A Churnin.”
[22] The Waiver then provides “In full or partial consideration for allowing me to participate in all related events and activities of the EVENT, I hereby warrant and agree that” followed by four separate paragraphs. The first of these four paragraphs states:
I am familiar with and accept that there is the real risk of serious injury and death in participation, whether as a competitor, student, official or worker, in all forms of motor sport and in particular in being allowed to enter, for any reason, any restricted area…
[23] The third of these four paragraphs states:
I understand that all applicable rules for participation must be followed, regardless of my role, and that at all times during the EVENT the sole responsibility for my personal safety remains with me…
[24] Below these four paragraphs appear the following words, in bold, capital letters:
I UNDERSTAND AND AGREE, ON BEHALF OF MYSELF, MY HEIRS, ASSIGNS, PERSONAL REPRESENTATIVES AND NEXT OF KIN THAT MY EXECUTION OF THIS DOCUMENT CONSTITUTES:
[25] These words are followed by five separate paragraphs, the first three of which I have set out below:
AN UNQUALIFIED ASSUMPTION BY ME OF ALL RISKS associated with my participation in the EVENT even if arising from the negligence or gross negligence, including any compounding or aggravation of injuries caused by negligent rescue operations or procedures, of the Releasees, as that term is defined below, and any persons associated therewith or otherwise participating in the EVENT in any capacity; and
A FULL AND FINAL RELEASE AND WAIVER OF LIABILITY AND ALL CLAIMS that I have, or may in the future have, against any person(s), entities or organization(s) associated in any way with the EVENT including the track owners and lessees, promoters, sanctioning bodies, racing associations, or any subdivision thereof, track operators, sponsors, advertisers, car owners and other participants, rescue personnel, event inspectors, underwriters, consultants and others who give recommendations, directions or instructions or engage in risk evaluation and loss control activities regarding the EVENT or event premises, or any one or more of them and their respective directors, officers, employees, guides, contractors, agents and representatives (all of whom are collectively referred to as “the Releasees”) from any and all liability for any loss, damage, injury or expense that I may suffer as a result of any use of or my presence at the event facilities or my participation in any part of, or my presence in any capacity at the EVENT, due to any cause whatsoever, INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE RELEVANT OCCUPIERS LIABILITY ACT ON THE PART OF THE RELEASEES.
AN AGREEMENT NOT TO SUE THE RELEASEES for any loss, injury, costs or damages of any form or type, howsoever caused or arising, and whether directly or indirectly from my participation in any aspect(s) of the EVENT, …
[26] Randall assumed all risks associated with his participation in the Wheels A Churnin event. He released all claims for any cause whatsoever as a result of his presence at the event facilities (the motorsports park), or his presence in any capacity or participation in the Wheels A Churnin event. He agreed not to sue the releasees for any loss or injury, regardless of the cause of the loss or injury.
[27] The final words of the Waiver, again in bold and capital letters, state:
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN SUBSTANTIAL LEGAL RIGHTS WHICH I AND MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND ASSIGNS MAY HAVE AGAINST THE RELEASEES.
I SIGN THIS DOCUMENT VOLUNTARILY AND WITHOUT INDUCEMENT
[28] Randall printed his name and signed and dated the Waiver in the spaces provided at the bottom of the document. He also provided his license plate number.
Interpretation and Application of the Waiver
[29] Augusta’s position is that the Waiver is a complete and absolute defence to the plaintiffs’ claim. In response, the plaintiffs raise the following issues that they say require a trial: (i) whether Randall knew at the time what he was signing was a waiver and not a registration form; (ii) whether the location of the accident is covered by the Waiver; (iii) whether Randall is considered a releasor in the context of the Waiver; (iv) whether Randall understood the Waiver’s potential implications.
[30] I deal with each of these issues in turn.
(i) Whether Randall knew at the time what he was signing was a Waiver
[31] There was no obligation on Augusta to ensure that Randall read the agreement he voluntarily signed. Randall was provided with an opportunity to read the Waiver – he was not rushed in the process. It was up to Randall to choose whether to read it or not. He admits that he had the opportunity to ask questions about the Waiver and to have it explained to him. He did not avail himself of this opportunity.
[32] I find that a reasonable person could not have missed the title of the Waiver which expressly states that it is a release of liability and a waiver of claims. It states clearly that by signing the document, the signor will waive the right to sue. I find that a reasonable person could not have missed the final words of the Waiver that include: “I am waiving certain substantial legal rights” and “I sign this document voluntarily and without inducement.”
[33] Randall signed and dated the Waiver. He provided the license plate number for his vehicle. There is no question that Randall signed the Waiver voluntarily.
[34] I find that the signs posted throughout the park would have reinforced to a reasonable person that they had signed a release and waiver and that by signing, the signor waived certain legal rights.
[35] The plaintiffs invite me to draw an adverse inference from what they describe as Augusta’s failure to produce the volunteer with personal knowledge of the signing of the Waiver. I am not prepared to do so. Augusta has provided evidence of the process followed by volunteers in presenting the Waiver. Randall admits he was provided with an opportunity to read the Waiver and ask questions about it. Randall signed the Waiver. There was no obligation on Augusta or its volunteer to ensure that Randall had read the Waiver.
[36] The plaintiffs also assert that Augusta failed to follow their Guidelines for Waiver and Release in that, contrary to the Guidelines, gate personnel did not sign the Waiver, gate personnel did not date the Waiver, and that it was the practice of employees and volunteers of the event to pass clipboards into vehicles for patrons’ signatures. In the circumstances before me, any deviation by Augusta from its Guidelines is immaterial. Randall admits he was provided with an opportunity to read the Waiver. He had an opportunity to ask questions about the agreement. A reasonable person could not have missed the title of the Waiver or its final words, both of which expressly state that signing the agreement constitutes a waiver of certain legal rights. Randall signed the Waiver. He did so voluntarily in order to gain admission to the park.
[37] In summary, there was no obligation on Augusta to ensure that Randall read or understood the Waiver. By all subjective and objective accounts, Randall consented to the Waiver he signed.
(ii) Whether the location of the accident is covered by the Waiver
[38] Randall submits that the Waiver does not apply because the area in which the accident occurred – a sand pit – was not part of the “Event.” I disagree.
[39] First, the Waiver covers the location where the accident occurred. There is no debate that Randall was required to sign the Waiver in order to gain admission to the park. The Waiver lists the description and location of the event as “Augusta Motorsports Park ‘Wheels A Churnin.’” There is no dispute that the sand pit is located in Augusta Motorsports Park.
[40] Second, by signing the Waiver, Randall accepted and agreed that “there is the real risk of serious injury and death in participation…in all forms of motor sport and in particular in being allowed to enter, for any reason, any restricted area.” The words “in all forms of motor sport” apply regardless of location within the park and regardless of whether the area is restricted. The express wording of the Waiver is a complete answer to the plaintiffs’ argument that there is a conflict in the evidence about whether the sand pit was cordoned off with caution tape. The express wording of the Waiver renders this evidentiary conflict irrelevant.
[41] Third, by signing the Waiver, Randall provided a full and final release “from any and all liability for any loss, damage, injury or expense that I may suffer as a result of any use of or my presence at the event facilities or my participation in any part of, or my presence in any capacity at the EVENT.” On a plain reading of the Waiver, the event facilities are Augusta Motorsports Park, the location of the Wheels A Churnin event.
[42] I find that the location where the accident occurred – the sand pit – is covered by the express terms of the Waiver.
(iii) Whether Randall is considered a releasor
[43] The plaintiffs advance the argument that the Waiver applies to event participants and not to event spectators. This submission does not withstand scrutiny.
[44] In signing the Waiver, Randall agreed that “all applicable rules for participation must be followed, regardless of [his] role.” Randall provided a full and final release from any loss, damage, or injury he might suffer “as a result of any use of or [his] presence” at the event facilities or his “participation in any part of, or [his] presence in any capacity” at the event. Randall signed the Waiver to gain access to the park and to attend the Wheels A Churnin event. He was driving his four-wheel drive vehicle when he was injured. He was, without question, present at the event “in any capacity.” I find that the Waiver encompasses Randall as an attendee of the Wheels A Churnin event at Augusta Motorsports Park on July 25, 2015.
(iv) Whether Randall understood the Waiver’s potential implications
[45] This submission by the plaintiffs relies on the same arguments that I have already addressed. I will not repeat my analysis here. There is no general requirement that a party tendering a document for signature take steps to apprise the party signing of onerous terms or to ensure the party signing reads and understands the terms. Only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms does such an obligation arise. No such obligation arose in this case. Nothing in the circumstances of this case would suggest to a reasonable person that Randall was not consenting to the terms of the Waiver.
Disposition and Costs
[46] For these reasons, I find there are no genuine issues requiring a trial with respect to any of the claims in the action. Summary judgment is granted to Augusta and the action is dismissed with costs.
[47] I encourage the parties to agree on the costs of the motion and the action. If the parties are unable to agree, they may make written submissions limited to a maximum of three pages. Augusta shall deliver its costs submissions by January 4, 2022. The plaintiffs shall deliver their responding costs submissions by January 18, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.
Justice R. Ryan Bell
Date: December 21, 2021
COURT FILE NO.: CV-17-335-00
DATE: 2021/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Randall French, Brianna French, Mary-Jane Ritchie and Terry French, Plaintiffs
AND
Augusta Motorsports Park, Wheels A Churnin, Onne van Hoek, Myles Lessard and The Economical Insurance Group, Defendants
ENDORSEMENT on summary judgment motion
Ryan Bell J.
Released: December 21, 2021
[^1]: The action has been discontinued as against Economical Insurance Group. Myles Lessard has been noted in default. [^2]: Although the Waiver is dated July 24, 2015, there is no dispute that the accident occurred on July 25, 2015.