Court File and Parties
COURT FILE NO.: CV-17-575728
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA LYNNE MOSKOWITZ, JEROME SNEIDERMAN, and JUSTINE SNEIDERMAN and BAILEE SNEIDERMAN, minors by their Litigation Guardian, JEROME SNEIDERMAN
Plaintiffs
– and –
DETOX CLUB INC. and VENESSA CODA
Defendants
David F. MacDonald and Daniel Klein, Counsel for the Plaintiffs
Chet Wydrzynski and Mouna B. Hanna, Counsel for the Defendants
HEARD: November 23-26, 29, 2021
CAROLE J. BROWN J.
REASONS FOR JUDGMENT
[1] The plaintiff, Dana Moskowitz (“Ms. Moskowitz”), brings this action arising from alleged personal injuries that she sustained while exercising at the Detox Club, a fitness club in Toronto, in a class led by the fitness instructor, Venessa Coda (“Ms. Coda”), on November 24, 2016. Her family members are joined under the Ontario Family Law Act.
[2] The action has been dismissed as against the Detox Club. As agreed between the parties the trial involved only the issue of liability.
[3] For purposes of this decision, I will refer to the plaintiffs collectively as “the plaintiff”.
Positions of the Parties
Position of the Plaintiff
[4] It is the position of the plaintiff that Ms. Moskowitz was injured during the fitness class taught at the Detox Club on November 24, 2016 at 6 AM, due to the negligence of the fitness instructor, Ms. Coda. The plaintiff maintains that during the slam ball exercise, which she had always done using a weighted, non-bouncing ball, she was given a bouncing ball, and was not provided with any instructions or demonstration regarding the ball and its properties. As a result, she slammed the ball to the ground, squatted to pick it up off the ground, but it bounced and hit her in the chin.
[5] It is further the position of the plaintiff that the waiver she had signed at the fitness club was not enforceable and did not bar the plaintiff’s negligence action against Ms. Coda.
Position of the Defendant
[6] It is the position of the defendant, Ms. Coda, that the plaintiff, Ms. Moskowitz, had used the bouncing, air-filled ball for the slam ball exercise on numerous previous occasions. Her position is that, in her class, she always uses a bouncing ball for that exercise. It is Ms. Coda’s position that on the date of the incident, she gave verbal instructions concerning the exercise and, as well, provided a physical demonstration of the exercise, without a ball.
[7] It is the defendant’s position that the instructions were properly given, her actions met the standard of care of a personal trainer, and if the plaintiff was injured, which is not admitted, she was the author of her own misfortune.
[8] The defendant maintains that the waiver is enforceable, clear, unambiguous and covered the situation involved in the incident, such that the plaintiff’s action is barred.
The Evidence
Joint Statement of Agreed Facts and Disputed Facts
[9] At trial, the parties provided a Joint Statement of Agreed Facts. Included therein was also a list of disputed facts.
[10] The Joint Statement of Agreed Facts reads as follows:
The plaintiff, Dana Lynne Moskowitz (“Dana”), was born on April 24, 1975.
Dana claims damages as a result of alleged injuries sustained by her in a fitness class incident which occurred on November 24, 2016 (the “Incident”).
The incident occurred while Dana was participating in a “Total Body Toning” (“TBT”) class at the fitness facility known as the Detox Club located at 500 Oriole Pkwy. in Toronto, ON. The class typically ran one day per week from 6 AM to 7 AM.
The Total Body Toning class consisted of cardio, weight training, resistance training and body weight exercises. All the exercises were conducted on the floor. There were some exercises that required the use of a ball.
Dana had attended for various fitness and training classes at the Detox Club in the past.
At the time, Dana was a member of the Detox Club. Dana attended classes regularly.
On the date of the incident, the class was being instructed by the defendant, Venessa Coda (“Ms. Coda”). The class started at approximately 6 AM and was approximately 45 to one hour in length.
Ms. Coda taught the class in the past, including to Dana on a number of occasions.
Ms. Coda was born on March 25, 1977.
At the time, Ms. Coda was an independent contractor of Detox Club and described herself as a “freelance trainer and freelance instructor”.
On the date of the incident, the class participants consisted of four women; namely, Dana, Carrie Mandel, Tara Berze and one other unidentified woman.
All the exercises in the class were conducted on the floor. The floor material in the class was wood.
One of the routines performed in the class on the date of the incident was the ball slam exercise, also known as overhead medicine ball slam or overhead slam. This exercise involves picking up a ball, raising it above your head and slamming it to the floor.
On the date of the incident, Ms. Coda did not warn Dana about the bounciness of the ball provided to her.
On the date of the incident, Ms. Coda did not warn Dana about the bounciness of the ball provided to her if there was no mat on the floor.
Ms. Coda instructed the class participants to raise the ball over their heads and slam the ball onto the floor.
Dana was not impaired or intoxicated at the time.
Immediately after Dana was struck by the ball, the class instruction came to a stop.
Ms. Coda observed that Dana was holding her jaw area after.
Dana left the class early that day.
Dana left the class shortly after she was struck by the ball.
Dana did not perform any exercises in the class that day after she was hurt.
Dana was wearing proper footwear at the time.
Dana was wearing proper attire at the time.
In Ms. Coda’s experience, Dana would normally follow instructions.
[11] The disputed facts, of which there are 26, are listed in the Joint Statement, and involve all of the details of the incident which occurred on November 24, 2016. These will be addressed going forward in the analysis and conclusion portion of the Reasons for Judgment.
Overview Regarding Evidence
[12] The principal parties, Ms. Moskowitz and Ms. Coda, gave viva voce evidence in chief and in cross-examination. On behalf of the plaintiff, two other participants in the fitness class, Carrie Mandel (“Ms. Mandel”) and Tara Berze (“Ms. Berze”), gave affidavit evidence, with viva voce cross-examination. The owner of the Detox Club, Marci Figuer (“Ms. Figuer”), gave affidavit evidence and was cross-examined.
[13] Expert witnesses on behalf of the plaintiff and defendant provided their reports, and were cross-examined at trial.
The Plaintiff’s Case
Dana Moskowitz
[14] Ms. Moskowitz testified that she had attended the Detox Club for approximately four years; in the six months prior to the accident, she worked out three to four times per week. She took classes with the owner, Ms. Figuer and the defendant, Ms. Coda, including one 6AM class once a week, taught by either Ms. Figuer or Ms. Coda and attended by the plaintiff, Ms. Mandel and Ms. Berze. She testified that she was friends with Ms. Berze and keeps in touch with her, but not with Ms. Mandel. She considered herself at the intermediate level as regards fitness and exercise.
[15] On November 24, 2016, she attended the 6AM Total Body Toning class with Ms. Mandel and Ms. Berze, and one other unidentified woman who was using a “class pass”, which permitted her to access a number of affiliated clubs.
[16] Ms. Moskowitz testified that Ms. Coda handed them balls that she had obtained from the storage room, and that she told Ms. Moskowitz that she could handle the weight of the ball given to her because she was strong. Participants were always given balls by fitness instructors. They never selected their own balls. For the slam ball exercise, they were timed, the goal being to do as many repetitions as possible for cardio and weight.
[17] They always used round rubber balls with little to no bounce. They had to raise the ball over their head, slam the ball down and squat to pick it up off the floor. She does not recall where her head was in relation to the ball when she squatted to pick it up.
[18] She had never used an air-filled bouncing ball or seen a bouncing ball used for this exercise.
[19] She testified that generally, the defendant always gave instructions before each exercise. She testified that on November 24, 2016, Ms. Coda did not give any verbal or visual instructions regarding the slam ball exercise, and did not demonstrate the exercise. She was impeached on this evidence, using her examination for discovery, in which she stated that she did not recall the specific instruction and then that she could not recall specifically how Ms. Coda instructed them to do the slam ball exercise. She stated at trial that, 3 ½ years later, she now recalls specifically that no instructions were given.
[20] She did not recall Ms. Coda instructing them to keep their feet shoulder width apart, bring the medicine ball over their head, engage the abdominals, slam the ball to the ground and catch the ball.
[21] She denied that Ms. Coda had ever used an air-filled ball for the exercise and denied that Ms. Coda gave the participants mats for the floor or instructed them to use mats. At trial, she testified that she did not recall the balls they used all being two-toned. When impeached with her examination for discovery, she confirmed that she had said that “the balls were always somewhat two-toned”.
[22] She testified that she slammed the ball down, squatted to pick it up and as she was picking it up or went to pick it up, it bounced up and hit her under the right side of the chin. Apparently, Ms. Mandel also had a similar experience.
[23] Ms. Moskowitz had signed a waiver on November 14, 2012. She stated that she signed the waiver, but does not recall anything about the meeting when the waiver was signed, confirms that she just does not remember details before she signed the waiver and has no facts or evidence to dispute that the normal procedure regarding waivers at Detox Club was followed. She stated that it could possibly have happened as described by Ms. Figuer.
Carrie Mandel
[24] In her affidavit dated October 29, 2021, Ms. Mandel states that she took a class with Ms. Moskowitz for approximately one year prior to the incident, one day per week for 45 minutes, normally taught by Ms. Coda.
[25] They always used the sand-filled ball for the slam ball exercise, which was always selected by the instructor. On the day of the incident, the ball bounced. There was no warning from the instructor that this would happen.
[26] In cross-examination, Ms. Mandel testified that she used to work out at the Detox Club from time to time, but was not a member. She would not describe herself and Ms. Moskowitz as friends.
[27] She testified that, prior to the incident, Ms. Coda provided instructions on how to do the exercises, that she had previously done the slam ball exercise and that Ms. Coda had previously instructed them on how to do the exercise. She remembered Ms. Figuer giving quite a bit of instruction regarding the slam ball exercise but did not remember Ms. Coda giving extensive, detailed instructions concerning the slam ball exercise.
[28] She testified that the defendant did not demonstrate the slam ball exercise on the day of the incident, that she does not remember her demonstrating the exercise without a ball and does not think Ms. Coda demonstrated the exercise without the ball. She is fairly certain that Ms. Coda did not demonstrate the exercise with or without the ball. She does not recall any verbal instructions and does not believe they were provided. She subsequently said that she was fairly certain that Ms. Coda did not demonstrate or give much of any instruction.
[29] She does not recall how the ball was provided to her and stated that it was possible that Ms. Coda placed the balls on the ballet bar for the women to select. She did not agree that Ms. Coda always used air-filled balls for the slam ball exercise.
[30] As regards use of a mat, she initially denied that they used mats for the slam ball exercise; then stated that to the best of her recollection, they did not use a mat for the slam ball exercise; and finally stated that it was possible that she just did not recall a mat being used, that she could not be certain that a mat was never used.
Tara Berze
[31] In her affidavit dated October 27, 2021, Ms. Berze stated that for the slam ball exercise, the class always used sand-filled balls. She had used air-filled balls at other clubs, always with a mat. Ms. Coda was the only instructor for the class that she and Ms. Moskowitz took for the year prior to the incident. The class size varied between two and four individuals per session.
[32] In cross-examination, Ms. Berze testified that she was friends with Ms. Moskowitz and had kept in touch after the incident at the Detox Club. They had met at the Club in 2014. She took classes regularly with Ms. Coda and Ms. Figuer. She did not go regularly to Ms. Coda’s 6AM class in 2016, as she had a baby on May 9, 2016 and resumed classes only in June or July.
[33] She had done the slam ball exercise prior to the incident and was familiar with the exercise. Prior to the incident, Ms. Coda would instruct them on how to perform the slam ball exercise. She stated that she had seen air-filled medicine balls being used for the exercise on a thick mat, and had used the air-filled ball at the Detox Club before the incident. She knew the difference between the air-filled and sand-filled balls as they felt different. She recalled that the air-filled balls were coloured and were distinguishable by their colour. She stated that she did not recall where the balls were placed, but they were made available to them directly. It was possible that the balls were placed on the ballet bar and the participants would select them before the exercise. She does not recall being told to use a mat.
[34] She did not recall specific instructions given regarding the slam ball exercise. She stated that it was possible that the defendant provided verbal instruction on how to do the slam ball exercise, although she was not sure about the details given. She said that it could be possible that Ms. Coda told them to stand with their feet shoulder width apart, bring the ball over their head, engage their abdominals, slam the ball to the floor and catch the ball, but she does not recall. It is also possible that Ms. Coda demonstrated the exercise without the ball on the day of the incident.
Kris Padman
[35] Mr. Padman was qualified as an expert in fitness and weight training.
[36] His expert report was based on numerous assumptions, derived from the evidence.
[37] Among these assumptions was that no instruction or demonstration was given as regards the slam ball exercise.
[38] In his opinion, Ms. Coda did not meet the standard of care with respect to the slam ball exercise. He opined that an instructor had to select the balls to be used by the individuals in the class; if introducing a new piece of equipment, like an air-filled ball, the instructor had to provide the class with warnings; the instructor had to ensure that the class was aware of whether they were using an air-filled or a sand-filled ball, and the instructor had to demonstrate the exercise to the class prior to the class doing the exercise.
[39] On the basis of the above enumerated duties, and of assumptions that he made about whether the above duties had been done, he opined that Ms. Coda had not done any of these things and therefore had breached her duties.
[40] It was his opinion that using a bouncing ball for the slam ball exercise was risky and that only a sand-filled ball should be used.
The Defendant’s Case
Marci Figuer
[41] Ms. Figuer is a Certified Fitness Instructor and is the owner of the Detox Club. She has been in the fitness industry for over 35 years. The defendant, Ms. Coda, was an independent contractor who taught fitness classes at the Detox Club. The plaintiff, Ms. Moskowitz, as well as the plaintiff’s witnesses, Ms. Mandel and Ms. Berze, were regular participants at the Club. They always followed instructions.
[42] Ms. Figuer testified that it would be proper and appropriate for the defendant, as a personal trainer, to explain an exercise and make the class aware whether they were using the sand-filled or air-filled ball for the exercise. It would further be proper and appropriate to demonstrate the exercise. She used these balls interchangeably depending on the type of force desired. When she taught the class, she tried to have everyone in the class use the same type of ball, all toward one goal.
[43] When she teaches, she tells the participants that they have an air-filled or sand-filled ball. However, the participants in question have been coming to the Club for a while, so they know whether the ball is sand- or air-filled just by holding it. As a trainer, she would still tell them whether the ball is sand- or air-filled and demonstrate.
[44] A mat is used in the studio to soften the noise. She has no knowledge as to whether a mat was used on November 24, 2016, as she was not at the Club at the time. However, she knows that Ms. Coda generally uses a mat and described that as “her thing”.
[45] As regards the waiver signed by Ms. Moskowitz, Ms. Figuer’s general practice is to put the waiver on a clipboard, with a pen, tell the client to read the waiver and sign it. Ms. Figuer lets the client take time to read the waiver, does not rush them, and then comes back and they speak. She answers any questions the client may have.
Venessa Coda
[46] Ms. Coda attended Sheridan College for fashion design, and then for fitness education.
[47] She is certified with Fact Fitness and canfitpro. The certification for Fact Fitness is to conduct fitness classes. The education includes learning about the body, muscles/bones, movement, types of classes one can teach; and how to form a class. They are tested. canfitpro provides more in-depth knowledge regarding the body. They are also tested. She has also taken workshops including TRX (suspension training), multiple martial arts, spinning, and fitness class workshops.
[48] She commenced teaching classes when she was 25, and at age 30, became a full-time contractor, teaching classes and training individuals. She teaches dance fitness (Zumba), spinning, mixed martial arts, different kinds of dance and spinning.
[49] She started teaching at Detox Club in 2020 as a contractor, teaching dance fitness, spinning, boxersizing and full body conditioning. She had been teaching full body fitness for 1 to 2 years at the time of the incident. The class in question was called “Total Body Toning”. It was a class of 45 minutes, its goal being to condition the full body. There were 15 to 20 exercises. Each exercise was timed and before each exercise, verbal instruction and physical/visual instruction were given.
[50] On November 24, 2016, she taught the Total Body Toning class. There were four participants, three regulars (Ms. Moskowitz, Ms. Mandel and Ms. Berze) and the fourth participant was a “class pass” student (an affiliate member with access to several clubs). The three regulars had attended that class for 1 to 2 years, three times per month on average. She had seen the fourth student two or three times taking various classes and had taught her in classes before. She inquired of the fourth participant what her fitness expertise was, and was told that she was advanced.
[51] Prior to the participants arriving, she would put out mats for them at the front of the class, place balls on the ballet bar, two green/black balls and two yellow/black balls, also at the front of the class. She stated that she always used the same balls, which were air-filled, in the exercise class. She used them to attain cardiovascular and intensity goals. She wanted quick return, which increased the participants’ heart rate and eye-hand coordination (there was a bounce to the ball so that they could catch the ball). She would use this exercise with the air-filled balls 1 to 2 times per month for the Total Body Toning class. She explained that if the sand-filled ball were used, it would be a slower exercise, as it does not bounce and the participants would have to get down to the floor in a squatting position to pick it up off the ground.
[52] She stated that the exercise balls that she placed on the ballet bars were 8 pounds and 4 kg (8.8 pounds). In cross-examination, when asked about the range of weights of balls used, she had said that she did not know, but would say that they were between 8 and 10 pounds. This was because she could not remember the poundage of the yellow/black ball, which at trial was indicated to be 4 kilograms or 8.8 pounds. She stated that she used the green/black and yellow/black balls for this exercise. When shown a photograph of the balls at the Detox Club which showed only one 4-kg ball, she stated that one ball had broken or split after the incident, but that there were two 4-kg balls at the time of the incident. She denied that she had given the plaintiff a 12-pound ball, and reiterated that she placed all balls on the ballet bar and did not give any balls to the participants directly.
[53] She has always used the air-filled balls for this exercise as it is more of a cardiovascular exercise with a quicker return and a great exercise for eye-hand coordination. She testified that Ms. Figuer has used the sand-filled balls and she has seen others at other studios use the sand-filled balls. Using the sand-filled ball is a completely different movement with more body exertion, using legs and full body force and squatting, lifting and slamming of the ball. She would never tell participants who were using a bouncing ball to squat.
[54] She provided verbal and visual instruction. She told them to double up a yoga mat and place it on the floor to absorb the shock of the ball and protect the flooring. She told them verbally to take a ball, raise their hands over their head, feet shoulder width apart, engage their abs, throw the ball to the ground and catch it. She wanted them to catch the ball because it is a bouncing ball and there is benefit to catching the ball, namely eye-hand coordination, and a quicker return. She did a visual demonstration of the exercise without a ball. She stated that if someone had never done that exercise before, she would use the ball to demonstrate. All participants had previously used the air-filled ball for the slam ball exercise, because those are the only balls that she uses.
[55] She did not advise the class that the ball would bounce. However, she had told them to throw the ball to the floor and catch the ball. They had done the exercise before and she was therefore under the impression that they were familiar with it.
[56] She stated that she demonstrated the exercise to the participants, visually and verbally, turned around to start the timer, as this was a timed exercise, heard something and turned around to see Ms. Moskowitz, standing and holding her face. All students were standing. She stated that she realized, thereafter, that Ms. Mandel had had the same thing happen to her.
[57] She testified that the ball hit Ms. Moskowitz in the chin, and stated that she assumed that Ms. Moskowitz had bent her body too far forward and did not have her back in an upright position.
Nathane Jackson
[58] Nathane Jackson was qualified, on consent, as an expert in the areas of strength, conditioning, coaching and fitness, and personal training.
[59] He testified that the duty of a personal trainer is to provide safe training.
[60] If he did not know the participant or student in the class, and whether they had done the exercise with a bouncing, air-filled ball, it would be reasonable to demonstrate the bounce.
[61] In cross-examination, he stated that if a participant is properly performing a stability slam, that person’s head would not be in the way of the ball. He stated that Ms. Moskowitz and Ms. Mandel could have been hunched forward more so than was demonstrated in the videos taken. He stated that when Ms. Moskowitz demonstrated her squatting technique on the video, she folded forward over the ball. She needed to find the middle of her foot which would bring her back and not folded forward. In the video, he noted that Ms. Moskowitz had fallen onto her toes and the balls of her feet, causing her to move forward, so that she would be directly over the ball.
[62] He stated that, based on all of the evidence he reviewed, Ms. Coda gave proper instructions, consistent with the standard of care. Based on the defendant’s instructions, the transcripts, the Padman report and video, he concluded that had the plaintiff followed the defendant’s instructions, the ball would not have struck her in the head unless she was hinged or bent forward. As regards his sources of information he stated that Ms. Coda’s transcript had the most information, Ms. Figuer’s explanation was given, but she had not been present at the time of the incident, Ms. Moskowitz did not recall instructions regarding the power slam, and as regards the two witnesses, Ms. Mandel and Ms. Berze, they were not of great assistance.
Credibility
[63] Dana Moskowitz: I found Ms. Moskowitz’s evidence to be questionable as regards many aspects of the facts directly relevant and material to this action. In examination in chief, she was adamant that she had never used anything but the sand-filled balls for the slam ball exercise. She was further adamant that Ms. Coda did not give any instruction, verbal or visual, on the day of the incident and she was not told to use a mat, when doing the exercise. She denied that Ms. Coda had placed balls to be used on the ballet bar and that she chose a ball from the ballet bar. She testified that she did not know whether the balls were coloured or two-toned. She was impeached using her examination for discovery transcripts, in which she testified that she always used “somewhat two-toned balls”.
[64] In examination in chief, she stated that Ms. Coda gave no instructions regarding the slam ball exercise. In cross-examination, using her examination for discovery testimony, she was impeached. In discoveries, she testified that she could not recall specific instructions “as it was such a traumatic experience”, and then stated that she couldn’t recall specifically how Ms. Coda instructed them to do the exercise. However, at trial, she testified that, despite the fact that 3½ years before, at examination for discovery, she stated that she did not remember the specific instructions given, she now recalls specifically that no instructions were given.
[65] Despite the seemingly definitive answers which she gave in examination in chief, and which supported her version of the facts, in cross-examination she seemed to back away from some of her categorical answers. I found her answers to be inconsistent and, in some cases, contradictory.
[66] I did not find her testimony to be forthright. She was defensive and her evidence was unreliable. Where there are discrepancies between her evidence and that of the defendant, I prefer the evidence of the defendant unless stipulated otherwise.
[67] Carrie Mandel: I found Ms. Mandel’s evidence to be less than forthright, particularly as regards those facts material to this action. She was defensive, argumentative and unwilling to accept or concede even simple facts put to her. She often failed to answer direct questions, responding with non-responsive answers.
[68] She testified that Ms. Coda had, previously, always provided instruction prior to exercises, but insisted that on the day of the incident, she did not give instructions, verbal or visual.
[69] She thereafter, in cross-examination, began to back away from her adamant denial of any instruction being given, stating first that she did not believe that the defendant, Ms. Coda, gave any demonstration or gave much of any instruction, that she did not remember any verbal instruction, and did not believe they were provided. While she had testified that Ms. Coda gave each participant a ball and no mats were used, she subsequently recanted on that answer, stating that she did not specifically recall how she was provided with a ball and that it was possible that Ms. Coda had placed the balls on the ballet bars for the women to select. I found her answers on this seminal issue to be inconsistent and contradictory.
[70] She initially denied that mats were used for the exercise, then modified that answer stating that none were used to the best of her recollection and, finally, agreed that it was possible that she did not recall using a mat.
[71] I did not find her to be forthright in her evidence. She was defensive and argumentative. She attempted to give evidence consistent with the plaintiff’s theory of the case, from which she then continuously backed away. Her evidence was inconsistent and unreliable.
[72] Where her evidence differs from that of the defendant, I prefer that of the defendant, unless otherwise stated.
[73] Tara Berze: Ms. Berze’s evidence was of little assistance. She did not recall many details of the day of the incident. When she did recall certain things, the evidence she gave often differed from that of the other participants in the class, and was more consistent with that of the defendant.
[74] She had done the slam ball exercise prior to November 24, 2016, had used air-filled balls on a thick mat, knew the difference between air-filled and sand-filled balls as they felt different, and air-filled balls were coloured. She stated that the balls may have been placed on the ballet bar for the participants to select before exercise.
[75] She stated that it was possible that Ms. Coda provided verbal instructions on how to do the slam ball exercise, although she was not sure about the detail of the instructions, and could not recall what was said.
[76] Her evidence, generally, was unreliable and vague.
[77] Given that she could not recall specific details regarding the instructions given on the day of the incident, I do not place great weight on her evidence.
[78] Kris Padman: I did not find the expert evidence of Mr. Padman to be consistent with his obligations under Rule 53. His evidence appeared to be biased and he appeared throughout to be advocating on behalf of the plaintiff, rather than providing independent evidence to assist the court.
[79] He failed to answer questions directly and failed to admit even the simplest propositions. He had to be directed by the Court on numerous occasions to answer the questions asked, rather than deflecting the questions.
[80] He based his opinions on assumptions and conclusions he derived therefrom, which conclusions were, in effect, disputed facts to be determined by this Court based on all of the evidence.
[81] I found his evidence to be unreliable and biased, and do not place great weight on it.
[82] Vanessa Coda: I found Ms. Coda’s testimony to be reliable and consistent. She did not attempt to deflect or avoid answering questions, did not attempt to change evidence to fit her version of the facts, but acknowledged shortcomings as necessary. I found her evidence to be direct, forthright and credible.
[83] Marci Figuer: I found Ms. Figuer’s testimony to be forthright and direct. She was the owner of the Detox Club and very experienced in the fitness domain. As the action against the Detox Club had been withdrawn, she had no personal interest in the outcome of the case. I found her evidence to be independent and credible.
[84] Nathane Jackson: I found Mr. Jackson’s evidence to be straightforward, forthright, independent and of assistance to this Court. He properly fulfilled his obligations as an expert witness and I found him to be credible throughout in his testimony.
[85] Video evidence: Certain witnesses, including Ms. Moskowitz and Ms. Figuer, demonstrated the slam ball exercise, which was then videotaped and entered as exhibits to this trial. The plaintiff’s expert also produced two videotapes in which he had two different individuals demonstrate the slam ball exercise. The first was a man, 6’4” and 230 pounds. The second, a woman, who was a golf professional, was described by Mr. Padman as “stronger than most men he knows”. I note that these latter two individuals would be far stronger than Ms. Moskowitz, could throw the ball against the floor with much greater force than could Ms. Moskowitz, and were not representative of the circumstances of the incident, nor of Ms. Moskowitz or her strength.
[86] I note, as well, that the other video exhibits used different balls, on different flooring, and therefore would also not be representative of how a ball at the Detox Club would bounce. The evidence was that different balls would bounce differently due to different materials used in their construction, the quality of the different materials used, the extent to which they were inflated (pounds per square inch of pressure) and also due to different types of flooring on which they are used, whether a mat is used, whether the mat is folded or laid flat, and depending on the user and weight of the ball. As a result, I take all of this into account in reviewing the video evidence.
[87] The fourth unidentified participant: Based on the evidence given, there was a fourth participant in the exercise class on November 24, 2016. She attended the class as a “class pass” participant, who could access classes at various clubs. She had apparently attended previous classes taught by Ms. Coda according to Ms. Coda. She apparently did all of the exercises properly and was not injured on the day of the incident. She was not identified and not called upon to provide evidence. I give no weight to any of this.
Issues
[88] The issues to be determined in this action are as follows:
The standard of care to be met;
Whether the applicable standard of care was met by Ms. Coda;
Whether Ms. Coda was liable for the incident;
If so, whether Ms. Moskowitz was contributorily negligent; and
Whether the waiver signed by Ms. Moskowitz is enforceable.
Analysis
The Standard of Care
[89] Based on the applicable case law, the duties of a fitness instructor at a gym would include the duty to properly train and instruct the participants in a fitness class. In the recent case of Hosseinkhani v QK Fitness Inc., 2019 ONSC 70, the court considered whether the exercise and skills involved were inherently dangerous, and whether the equipment used represented an unusual hazard or were not reasonably safe for the purpose for which they were intended.
[90] The Court in Isildar v Rideau Diving Supply, 2008 CanLll 29598, citing the Supreme Court of Canada, outlined factors to consider in determining the appropriate standard of care, including the relationship of the plaintiff to the defendant; the experience of the plaintiff with the activity; the magnitude of the risk; and the degree of harm that may flow from the risk. The court noted the significance of industry standards or practices in the analysis of standard of care and, at para. 43, stated that those who act in accordance with the general practice of their trade or profession may be exonerated from civil liability.
[91] The inherent risks associated with activities were discussed in Kempf v Nguyen, 2013 ONSC 1977. The court stated as follows:
Certain activities, particularly sporting activities, are fraught with risk and this fact cannot and should not be ignored. However, the duty of care is established by the relationship between the parties. The nature of the risks inherent in a given activity is relevant to what the proper standard of care is in a specific situation. Put differently, the question of what constitutes reasonable care is affected by what risks a person participating in a sporting event could reasonably have expected to face.
Was the Applicable Standard of Care Met
[92] In the present case, based on all of the evidence, I do not find the slam ball exercise to be an inherently dangerous exercise or activity. Nor do I find it to be a complicated exercise. It was a normal exercise used at fitness centres, according to Ms. Figuer, Ms. Coda and Mr. Jackson. While Mr. Padman opined that an air-filled ball should not be used for the slam ball exercise, I do not find his evidence to be convincing. Mr. Jackson testified that “certain drills require a bounce, while others do not. In the case of an overhead slam, both types of balls are in fact interchangeable.” Both Ms. Figuer and Ms. Coda testified that they used the air-filled ball for the slam ball exercise and Ms. Coda indicated that that was the only ball which she used. She stated that she chose the medicine ball for cardiovascular purposes, as she wanted a “quick return” to the start position which allows for more repetitions of the exercise. Indeed, even the evidence of Ms. Berze was that she had used both the air-filled and sand-filled balls for the slam ball exercise at Detox Club and other clubs.
[93] I am satisfied, based on the evidence adduced, that there is an industry standard of using the air-filled medicine ball for the slam ball exercise, as well as using the sand-filled ball.
[94] Further, the evidence indicated that the only balls used by Ms. Coda were two-toned yellow/black and green/black, which weighed 8 pounds and 8.8 (4 kg) pounds. This was confirmed by Ms. Berze. Ms. Moskowitz also stated that they always used “somewhat two- toned balls”. The only two-toned balls at the Club were air-filled. I am satisfied that the balls used by Ms. Coda for the slam ball exercise were air-filled and not sand-filled.
[95] I have considered that Ms. Coda stated that she always used two green/black and two yellow/black air-filled balls for the slam ball exercise and that she used those balls on the day of the incident. Ms. Figuer indicated, based on the photographs of the balls at the Club taken in 2021, that she had two 8-pound air-filled balls (green/black), one 8.8-pound (4 kg) air-filled ball (yellow/black) and one 12-pound air-filled ball. It is unclear whether there is actually a discrepancy between the evidence of Ms. Coda and Ms. Figuer regarding the number of air-filled balls on November 24, 2016, and whether Ms. Figuer’s evidence is based on the photograph taken five years later. I do note that Ms. Coda indicated that one of the yellow/black balls split and was no longer able to be used sometime following the incident.
[96] In any event, the issue is not the weight of the ball used (8 pounds, 8.8 pounds or 12 pounds) but the nature of the ball used, whether a sand-filled (non-bouncing) or air-filled (bouncing) ball.
[97] I am further satisfied that Ms. Coda prepared the exercise space for the participants prior to the Total Body Toning class, placed the balls on the ballet bar and placed the mats at the front for the participants to select. I am satisfied that Ms. Coda used a mat with this exercise for purposes of shock absorption and muffling of sound. Ms. Figuer described Ms. Coda’s use of the mat as “her thing”.
[98] I am satisfied that Ms. Moskowitz had experience in doing the slam ball exercise. I am satisfied that she had been given instructions in the past as to how the exercise was to be performed. Based on the evidence and the Joint Statement of Agreed Facts, I am satisfied that instruction was given by Ms. Coda on the day of the incident, being to raise the ball over your head, with your arms held at shoulder width, engage your abs, throw the ball to the floor and catch it.
[99] While Ms. Moskowitz was adamant initially that Ms. Coda had not given any instruction, in cross-examination, she was inconsistent as regards that fact, stating that she could not remember what instructions were given and could not recall the specifics of any instructions. Ms. Mandel provided similar evidence, backing away from her initial absolute denial of any instruction being given to being equivocal in cross-examination about instructions being given.
[100] I am satisfied that Ms. Coda did give instructions to stand with feet shoulder width apart, engage the abdominals, hold the ball over the head, slam the ball to the ground and catch the ball. I am further satisfied that she gave a visual demonstration of the exercise, without the ball. She knew the participants, knew that they had done this exercise before, with the air-filled ball which she always used, and assumed that they would be able to perform the exercise, seeing a demonstration, without having to see a demonstration with the ball.
[101] As regards Ms. Moskowitz’s evidence that she squatted to pick the ball up, I am satisfied that that was not an instruction given by Ms. Coda. Moreover, I note that Ms. Coda turned immediately at the sound from Ms. Moskowitz and saw her standing, not squatting. She saw all participants standing. I am not satisfied that Ms. Moskowitz had squatted. If she had, she was not following the instructions given.
[102] Ms. Figuer’s evidence with regard to the instructions given was that she knew from what Ms. Coda had told her that she gave directions to execute correctly. Mr. Jackson, having reviewed the instructions given by Ms. Coda, opined that she did her due diligence with respect to the instruction. Mr. Jackson further stated that it is not always necessary to show that the ball bounces and, in cross-examination, stated that when someone is asked to catch the ball, the ball must be in the air and that an individual could catch the ball on the way up or the way down. He further, in his report, opined that “in addition, having used the different balls for this four plus year period, I would anticipate Ms. Moskowitz knows the difference, or defining characteristics, between the air-filled ball and the sand-filled ball, such as colour, tread, density and maybe even weight. I find, on the basis of all of the evidence, that her [Ms. Coda’s ] instruction met the standard of care”.
[103] I further find, based on the explanation given by Ms. Coda, that she used the air-filled ball to achieve a specific goal, namely a quick retrieve to the start position which allowed for more repetitions of the exercise, that she selected the appropriate choice of ball.
[104] I do not accept the argument of the plaintiff that it was negligent of Ms. Coda to turn around to start the timer for the exercise. She had turned her back briefly to start the timer when the incident occurred. Mr. Jackson stated that using a timer is appropriate. I do not accept Mr. Padman’s evidence that it was improper or negligent for Ms. Coda to look at a timer to start it.
Was Ms. Coda Liable for the Incident
[105] In conclusion, based on all of the above, I find that Ms. Coda met the standard of care required of her in the circumstances. I do not find that that she was negligent and do not find that she is liable for the incident.
[106] In the event that Ms. Moskowitz was injured by the slam ball exercise, which she alleges, she was the author of her own misfortune.
[107] Given my conclusion, I need not determine the issue of the enforceability of the Waiver.
Costs
[108] I strongly urge the parties to come to an agreement as regards costs in this matter. Should they be unable to do so, the parties are to provide me with their bills of costs, limited to three pages total within 60 days of release of these Reasons for Judgment.
C.J. Brown J.
Released: July 22, 2022
COURT FILE NO.: CV-17-575728
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA LYNNE MOSKOWITZ et al.
and
DETOX CLUB INC. et al.
REASONS FOR JUDGMENT
C.J. Brown J.
Released: July 22, 2022