Court File and Parties

COURT FILE NO.: CV-19-81631 DATE: 2024/12/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sandra Bernier, Mérik Couture, minor, and Lydia Couture, minor, represented by their legal guardian Sandra Bernier, Plaintiffs -and- Ville d’Ottawa, GranFondo Ottawa and Greg Capello, Defendants -and- Nylene Canada Inc., Third Party -and- GranFondo Ottawa and Greg Capello, Fourth Parties

COUNSEL: Michel Sicotte, for the Plaintiffs Matthieu Charron, for Ville d’Ottawa Jonathan Tatner, for GranFondo Ottawa and Greg Capello Larry Reimer, for Nylene Canada Inc. (Third Party)

HEARD: April 19, 2024

REASONS FOR DECISION

WILLIAMS, J.

[1] Sandra Bernier started this action on behalf of herself and her two children to seek compensation for injuries she suffered while participating in a cycling event in 2018.

[2] The defendants/fourth parties GranFondo Ottawa and Greg Capello and the third party Nylene Canada Inc. (collectively, “the moving parties”) have brought summary judgment motions to dismiss the plaintiffs’ action.

[3] The defendant Ville d’Ottawa named Nylene Canada Inc. as a third party. Nylene Canada Inc. defended the main action and is seeking dismissal of the action against Ville d’Ottawa.

[4] The moving parties argue that the plaintiffs’ action is barred by a waiver signed by Ms. Bernier and that a plain reading of the waiver exonerates them from liability for the plaintiffs’ losses. GranFondo and Mr. Capello also argue that Ms. Bernier voluntarily assumed the risk of injury.

[5] Ms. Bernier and Mr. Capello were examined for discovery. Transcripts of their examinations were included in the record on the motions. The record also included affidavits sworn by Ms. Bernier, Mr. Capello, Ms. Bernier’s partner Dean Holmes and Ms. Bernier’s friend Isabelle Vezina, and transcripts of cross-examinations on these affidavits.

THE FACTS

[6] The plaintiffs are Ms. Bernier and her two children, Merik and Lydia Couture. Ms. Bernier’s children are plaintiffs under s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3.

[7] On July 21, 2018, Ms. Bernier participated in a road cycling event organized by GranFondo, a corporation owned and operated by Mr. Capello.

[8] Ms. Bernier was injured when she fell off her bicycle during the event. Ms. Bernier fell at the intersection of a road known as Loggers Way and some railroad tracks.

[9] Ms. Bernier said that she slowed down before crossing the tracks and attempted to cross them at a 90-degree angle. She said the next thing she knew, she was on the ground, trying to get up.

[10] Ms. Bernier learned later that her friend Ms. Vezina fell at the same location.

[11] Ms. Bernier had volunteered to be what was known as a “ride ambassador” for the event. Ride ambassadors were experienced cyclists enlisted to assist the other participants. Ms. Bernier had been a ride ambassador for the event on at least one and possibly two previous occasions. (As I indicate below, I make no finding about whether Ms. Bernier participated in the event on more than one previous occasion, and whether she participated more than once previously has no bearing on my decision.)

[12] Ms. Bernier’s partner, Mr. Holmes, was also a ride ambassador. Mr. Holmes had been a ride ambassador on three previous occasions.

[13] In an email dated July 7, 2018, Mr. Capello had provided Ms. Bernier and the other ride ambassadors with a link to a registration form for the event and a liability waiver. In his email, Mr. Capello said, “[w]e need everyone to complete the pdf and send back the info page [with jersey size] and the signature page.”

[14] Ms. Bernier sent Mr. Capello an email on July 15, 2018, attaching the completed registration form and waiver.

[15] Whether Ms. Bernier signed the waiver is not in dispute.

[16] The waiver was titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement.” The first line was in the nature of a subtitle. It read: “GranFondoOttawa, Inc. registration, release and waiver of liability.”

[17] The first paragraph of the waiver included a warning that the form had legal implications:

Please read this document carefully before signing. This document has legal consequences and will affect your legal rights and will limit or eliminate your ability to bring future legal actions.

[18] The waiver included an acknowledgement that it was being signed on behalf of the person who was signing it as well as their spouse, children and others, including “anyone else who might claim or sue on my behalf.”

[19] Under the title “Risks”, the waiver provided as follows, in capital letters: “I HEREBY ACKNOWLEDGE AND ASSUME ALL OF THE RISKS OF PARTICIPATING IN THE EVENT.”

[20] The waiver included the following specific acknowledgements:

I acknowledge that: (a) this athletic Event is an extreme test of a person's physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to, those caused by terrain, facilities, temperature, weather, condition of athletes, lack of hydration, equipment, vehicular traffic, actions of other people including, but not limited to, participants, volunteers, spectators, journalists, Event officials, Event monitors, and/or producers of the Event. The risks are not only inherent to athletics, but are also present for volunteers and support staff. I hereby assume all of the risks of participating and/or volunteering in this Event; (b) it is my responsibility to remove myself from participation in the Events if I sense or observe any unsafe condition, including if at any time I feel unable or unfit to safely continue for any reason; (c) as a result of these risks, I, as a participant and/or volunteer, may suffer serious bodily injury, including permanent disability, paralysis and even death, as well as theft and property loss; (d) some of these risks are foreseeable, but others are not; (e) it is my sole responsibility to be familiar with the Event course and route, agenda, rules and regulations and agree to comply with all such rules and regulations; (f) I am responsible for the condition and suitability of my equipment and any equipment provided for my use in connection with the Event; (g) none of the Released Parties assume any responsibility whatsoever for my safety during my preparation for or participation in the Event; (h) there are risks inherent in cycling on roads travelled by motor vehicles, I am aware of those risks and have adequately prepared myself to safely share roads with motor vehicles.

[21] Under the title “Liability”, the waiver read as follows:

In consideration of my registration and being permitted to participate in this Event, I hereby take action for myself, my executors, administrators, heirs, next of kin, successors, and assigns as follows: (I) Waive, Release and Discharge from any and all liability for my death, disability, personal injury, property damage, property theft or actions of any kind, .which may hereafter accrue to me or my traveling to and from this Event, even if arising from the negligence, gross negligence or negligent rescue by THE FOLLOWING ENTITIES OR PERSONS: GranFondoOttawa, Inc., Greg Capello, their directors, officers, employees, volunteers, coaches, representatives, and agents, the Event holders, Event sponsors, Event directors, Event volunteers, all provincial, city, town, and other governmental bodies, and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Event or segments of the Event take place, and each of their respective parent. subsidiary and affiliated companies, licensees, officers, directors, partners, board members, shareholders, members, supervisors, insurers, agents, employees, volunteers, and other participants and representatives (" Released Parties "); [1] (II) Indemnify and hold harmless the Released Parties from any and all liabilities or claims made by other individuals or entities as a result of any of my actions during this Event; (III) I further covenant and agree not to sue any of the Released Parties for any of the claims that I have waived, released, or discharged herein.

[22] The waiver required the person signing it to acknowledge that they understood and agreed to obey all applicable traffic laws.

[23] The waiver concluded with an acknowledgement, in capital letters, that the person signing the waiver read it, understood its content, understood the nature of the event and was signing the waiver intentionally and voluntarily.

THE PLAINTIFFS’ POSITION

[24] The plaintiffs argue that the waiver Ms. Bernier signed is not enforceable against them.

[25] The plaintiffs argue that the waiver did not apply to Ms. Bernier because she was a volunteer who was assisting with the cycling event, and not a paying participant.

[26] The plaintiffs also argue that the waiver was sent to Ms. Bernier by email without any explanation.

[27] The plaintiffs submit that GranFondo and Mr. Capello were negligent when they planned the event in that they failed to identify and alert participants to hazards on the route, specifically, the location of Ms. Bernier’s fall, where Loggers Way was intersected by railroad tracks. The plaintiffs argue that what GranFondo called a “hot spot” sign should have been erected before the intersection to warn the cyclists that there was danger ahead.

[28] Although the focus of the plaintiffs’ factum and oral submissions was on their claim against GranFondo and Mr. Capello, they pleaded in their statement of claim that Ville d’Ottawa was negligent in that it had failed to maintain the roadways where the cycling event took place.

[29] The plaintiffs submit that the waiver does not protect the defendants from their negligence.

[30] The plaintiffs maintain that the issue of whether the waiver protects the defendants from the consequences of their negligence is an issue requiring a trial.

SUMMARY JUDGMENT

[31] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows a plaintiff to move for summary judgment with supporting affidavit material or other evidence once the defendant has delivered a statement of defence. Subrule 20.04(2)(b) provides that a court hearing a summary judgment motion shall grant judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or defence.

[32] A trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of facts and apply the law to those facts and 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 para. 4.

[33] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before them, without using the fact-finding powers set out in ss. 20.04(2.1) and (2.2) (“the new powers”): Hryniak, at para. 66.

[34] Rule 20.04(2.1) permits the motion judge to: (1) weigh the evidence, (2) evaluate the credibility of a deponent and (3) draw any reasonable inference from the evidence. Rule 20.04(2.2) permits the motion judge to order that oral evidence be presented by one or more of the parties, for purposes of exercising any of the powers under r. 20.04(2.1).

[35] If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers. The judge may use these powers provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

[36] In determining whether summary judgment is appropriate, the court must consider the entire evidentiary record and the Hryniak analytical framework: Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 23.

[37] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue requiring a trial. Once and only after this burden has been discharged, the responding party must prove that its claim has a “real chance of success”: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, citing Connerty v. Coles, 2012 ONSC 5218, at para. 9.

[38] The responding party cannot rely on the prospect that additional evidence may be tendered at trial; the responding party must put its best foot forward in response to a motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878.

THE ISSUES

[39] The issues are whether the plaintiffs’ action is barred either by the waiver Ms. Bernier signed or because Ms. Bernier voluntarily assumed the risk of injury.

[40] To decide this issue, I will need to decide whether the waiver is enforceable, given that Ms. Bernier was a volunteer and not a paying participant in the cycling event, and that she received the waiver by email, without any explanation.

[41] If the waiver applies to Ms. Bernier, a further issue is whether the waiver bars the plaintiffs’ claims for negligence.

[42] As the motions before me are for summary judgment, I must decide whether I can fairly decide these issues on a motion or whether there is an issue requiring a trial.

ANALYSIS

ISSUE #1: Is the waiver enforceable against the plaintiffs?

The plaintiffs’ position in respect of Issue #1

[43] The plaintiffs argue the waiver does not apply to Ms. Bernier because she was a volunteer known as a “ride ambassador” and not a regular, paying participant.

[44] The plaintiffs also submit the waiver was brought to Ms. Bernier’s attention only through an email from Mr. Capello, which requested the jersey sizes of the volunteers. The plaintiffs argue that the first page of the emailed document set out route options and registration fees for the event and that this information was clearly intended for participants and not for volunteers. The plaintiffs say that no explanation or instructions were provided in conjunction with the waiver.

[45] The plaintiffs did not suggest that the enforceability of the waiver should be negated by fraud or unconscionability or for policy reasons.

[46] The plaintiffs also did not suggest that Issue #1 was an issue requiring a trial.

Analysis of Issue #1

a) Did the waiver apply to volunteers?

[47] The waiver included several clear and unequivocal references to volunteers.

[48] The waiver included an acknowledgement that the event “carries with it the potential for death, serious injury and property loss” and, significantly, that the risks “are not only inherent to athletics, but are also present for volunteers and support staff” (emphasis added).

[49] The waiver also stated: “I hereby assume all of the risks of participating and/or volunteering in this Event” (emphasis added).

[50] The waiver also included the following acknowledgement: “as a result of these risks, I, as a participant and/or volunteer, may suffer serious injury, including permanent disability, paralysis and even death, as well as theft and property loss” (emphasis added).

[51] I am satisfied that Issue #1(a) is not an issue requiring a trial. It is an issue that turns on an interpretation of the waiver.

[52] It is evident from the plain wording of the waiver that the waiver was intended to apply to volunteers as well as to paying participants in the cycling event. This intention would have been evident to any reasonable person reading the waiver.

[53] I do not accept the plaintiffs’ argument that the waiver did not apply to Ms. Bernier because she was a volunteer “ride ambassador”. I find that the waiver applied to volunteers, such as Ms. Bernier, as well as to paying participants in the event.

b) Is the waiver unenforceable because it was provided to Ms. Bernier without explanation?

[54] The plaintiffs submit the waiver does not apply to Ms. Bernier because she received it via email and GranFondo and Mr. Capello made no effort to ensure that she understood what she was signing. Ms. Bernier says that GranFondo and Mr. Capello did not explain the waiver to her. Ms. Bernier admitted that she did not read the waiver word-for-word before signing it.

[55] As with Issue #1(a), I find that Issue #1(b) is not an issue requiring a trial. It is a narrow issue. It does not require that I resolve any factual disputes or make any findings with respect to credibility. I am satisfied that, based on the record before me which I described earlier in these reasons, I am able to make any necessary findings of fact, apply the applicable law to the facts and reach a fair and just conclusion in respect of this issue.

[56] In Arksey v. Sky Zone Toronto, 2021 ONSC 4594, at paras. 21-24, Myers J. summarized the law relating to waivers:

[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.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.]

[57] As I noted previously, whether Ms. Bernier signed the waiver is not in dispute.

[58] Although French is Ms. Bernier’s first language, Ms. Bernier is fluently bilingual and does not suggest that she did not understand the waiver because it was in English.

[59] Ms. Bernier received the waiver by email two weeks before the event and signed and returned it to Mr. Capello six days before the event. Ms. Bernier does not argue that she had insufficient time to read and consider the waiver. Ms. Bernier’s partner, Mr. Holmes, said that he had sufficient time to read the waiver and ask questions.

[60] Ms. Bernier had signed the same waiver the previous year, prior to the same event held in 2017.

[61] Ms. Bernier’s evidence was that she did not read the waiver carefully. She said she started to read it but stopped because she did not believe that it applied to volunteers such as herself. She said she read the entire waiver before signing it, but that she had read it “diagonally”. She said this meant that she read the titles and the portions that were in bold type.

[62] The waiver stated that the person signing it acknowledged and assumed all of the risks of participating in the event. The waiver also stated that the person signing it agreed not to sue any of the parties released by the waiver for any of the claims waived.

[63] As McLachlin C.J.S.B.C. (as she then was) noted in Karroll v. Silver Star Mountain Resorts (1988), 33 B.C.L.R. (2d) 160, at p. 166, there is no general requirement that a party tendering a document for signature take steps to ensure that the party signing it reads and understands any onerous terms. Such an obligation arises only when a reasonable person would know the party signing the documents was not consenting to the terms.

[64] There was no evidence to suggest that the defendants in the case before me would have had any way of knowing that Ms. Bernier had not read the waiver or that she did not believe it applied to her. Ms. Bernier signed the waiver and returned it to Mr. Capello. The waiver stated that the person signing it read the waiver and understood its contents.

[65] At its outset, the waiver clearly stated that it should be read carefully and that it had legal consequences that would affect the legal rights of the signor. I find that Ms. Bernier had sufficient time to read the waiver carefully had she chosen to do so. Further, she was already familiar with the waiver, having signed the same document the previous year. There was no language barrier.

[66] I am satisfied that the fact that Ms. Bernier received the waiver by email, without any explanation, has no bearing on its enforceability and that she is bound by its terms.

Conclusion with respect to Issue #1

[67] I am satisfied that the waiver applied to volunteers such as Ms. Bernier. I am also satisfied that the fact that the waiver was provided to Ms. Bernier by email and without any explanation has no bearing on its enforceability.

[68] As I noted previously, the plaintiffs do not argue that the enforceability of the waiver should be negated by fraud or unconscionability or for policy reasons.

[69] For these reasons, I find that the waiver is enforceable against Ms. Bernier.

ISSUE #2: Does the waiver bar the plaintiffs’ claims for negligence?

The plaintiffs’ position in respect of Issue #2

[70] The plaintiffs argue that Ms. Bernier may have agreed to release the defendants from injury caused by the inherent risks of road cycling but she did not agree to participate in a poorly organized event or to release the defendants if they failed to identify and flag dangers on the route.

[71] The essence of the plaintiffs’ claim against GranFondo and Mr. Capello is that they were negligent in their organization of the event, in that they selected a route which was in poor condition and they failed to warn participants, including Ms. Bernier, about the poor condition of the road at the location where she fell.

[72] In their statement of claim, the plaintiffs identify the defendant Ville d’Ottawa as being the municipality responsible for maintaining public roadways and sidewalks. They plead that Ville d’Ottawa was grossly negligent in its maintenance of the intersection between Loggers Way and the railroad track where Ms. Bernier fell, that it created a situation of danger and that it failed to warn participants, including Ms. Bernier, about the poor condition of the road at the location where she fell.

[73] The plaintiffs argue that whether the danger created by the defendants’ negligence was of the nature contemplated by the terms of the waiver is an issue requiring a trial. The plaintiffs submit that there are factual disputes relating to the organization of the event and the steps GranFondo and Mr. Capello took to ensure the safety of participants. The plaintiffs argue that some of these factual disputes will involve findings of credibility that require a trial to be resolved.

[74] The plaintiffs rely on three summary judgment cases: Downs v. Georgian College, Pascoe v. Ball Hockey Ontario Inc. and Brown v. Blue Mountain Resort Ltd.. In each of these cases, all of which pre-date Hryniak, the motion judge concluded that whether a waiver signed by the plaintiff applied to the defendant’s alleged negligence was an issue requiring a trial.

Analysis of Issue #2

[75] On its face, the waiver Ms. Bernier signed releases the defendants from negligence.

[76] The waiver states that it applies to

...any and all liability for my death, disability, personal injury, property damage, property theft or actions of any kind, which may hereafter accrue to me or my traveling to be from this Event, even if arising from the negligence, gross negligence or negligent rescue by THE FOLLOWING ENTITIES OR PERSONS…. [Emphasis added.]

[77] The defendants, like the plaintiffs, rely on three summary judgment cases: Arksey, French v. Augusta Motorsports Park, 2021 ONSC 8385 and Arif v. Li, 2016 ONSC 4579. In each of these cases, the motion judge found a waiver signed by the plaintiff applied to the alleged negligence of the defendant and granted summary judgment, dismissing the plaintiff’s action.

[78] In Arksey, the plaintiff signed a waiver before participating in a game of trampoline dodgeball. The issue was whether the plaintiff had waived her claim for damages caused by the defendant’s alleged negligent failure to (a) instruct and supervise another player and (b) follow its injury policies.

[79] At para. 4, Myers J. concluded that the waiver signed by the plaintiff “brought home to a reasonable reader that liabilities of the type claimed by the plaintiff were waived and were not actionable.”

[80] At para. 42, Myers J. noted that a waiver must be interpreted to determine whether it waives the risks and claims asserted and that waivers are narrowly construed against the drafters.

[81] At para. 45, Myers J. said that the court adopts a narrow interpretation of exclusion clauses generally so as to avoid inconsistency with the purpose of the agreement overall. Exclusions should not be read expansively and should not overwhelm the rights bargained for by the parties.

[82] At para. 46, Myers J. noted that the use of the word “negligence” on its own is often insufficient to find that the plaintiff waived all possible forms of negligently caused injury. The words in the waiver 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.

[83] At para. 47, Myers J. quoted from Ochoa v. Canadian Mountain Holidays Inc., [1996] B.C.J. No. 2026, at para. 136, which concluded that, to bar a claim for negligent conduct, a waiver must include enough context for the word “negligence” to satisfy the court that the person signing the waiver could reasonably have been expected to understand its meaning:

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.]

[84] I take from Arksey and Ochoa that I must determine, through a consideration of both the wording of the waiver and Ms. Bernier’s familiarity with the cycling event, whether Ms. Bernier reasonably could have understood the waiver to exclude claims for damages caused by negligent organization of the event, negligent failure to identify and alert participants (including volunteers) to dangerous areas on the designated route or, in respect of the claim against Ville d’Ottawa, negligent maintenance of roadways.

[85] Turning first to the wording of the waiver, I consider the following excerpts from the waiver to be of particular relevance:

• The waiver was titled “Release and Waiver of Liability and Assumption of Risk and Indemnity Agreement”;
• The waiver provided that the person signing it was acknowledging and assuming “all of the risks of participating in the event” (emphasis added);
• The waiver stated that the event carried with it “the potential for death, serious injury and property loss”;
• The waiver stated that the risks associated with the event (all of which the person signing the release was agreeing to assume) included but were not limited to “those caused by terrain, facilities, temperature, weather, condition of athletes, lack of hydration, equipment, vehicular traffic, actions of other people including but not limited to, participants, volunteers, spectators, journalists, Event officials, Event monitors, and/or producers of the Event”;
• The waiver stated: “[I]t is my sole responsibility to be familiar with the Event course and route, agenda, rules and regulations and agree to comply with all such rules and regulations” (emphasis added);
• The waiver stated: “[N]one of the Released Parties assume any responsibility whatsoever for my safety during my preparation for or participation in the Event”;
• The waiver stated: “[T]here are risks inherent in cycling on roads travelled by motor vehicles. I am aware of those risks and have adequately prepared myself to safely share roads with motor vehicles”;
• The waiver provided that the person signing the release would “Waive, Release and Discharge from any and all liability for my death, disability, personal injury, property damage, property theft or actions of any kind, which may hereafter accrue to me or my traveling to and from this Event, even if arising from the negligence, gross negligence or negligent rescue by [the Released Parties]”.

[86] Turning now to Ms. Bernier’s familiarity with the cycling event, I note that Ms. Bernier was 45 years old in July 2018, when the event took place. She was a federal public servant and a university graduate. Before she participated in the event, she was an experienced road cyclist. She had participated in numerous cycling events previously, including the same GranFondo event on at least one previous occasion. [2] Ms. Bernier rode her bicycle to and from work on a regular basis. When Ms. Bernier was examined for discovery, she said that she was aware of the risk of falling while cycling on roadways, because of potholes and road conditions. She also said that, before her accident in July 2018, she had experience crossing railroad tracks on a bicycle. She also said that she probably previously cycled on Loggers Way, the road where her fall took place.

[87] The main thrust of the plaintiffs’ claim of negligence against GranFondo and Mr. Capello is that the defendants should have identified the railway tracks where Ms. Bernier fell as a hazard and should have erected what GranFondo described as a “hot spot” sign along the route before the tracks to warn participants of the danger ahead.

[88] The plaintiffs argue that Mr. Capello gave inconsistent evidence about the inspection of the route prior to the event and evidence that was contradicted by other witnesses about whether a “hot spot” sign was in place. The plaintiffs argue that because credibility findings must be made, a trial is required to determine whether the nature and scope of the defendants’ negligence is covered by the waiver.

[89] I disagree. The application of the waiver to these claims is a narrow issue turning on the interpretation of the waiver in the factual context and the application of the relevant case law. I am satisfied that, based on the record before me, I can make the necessary findings of fact and apply the law to those facts, which will result in a fair and just adjudication of the issue.

[90] Even if credibility findings were made against Mr. Capello and even if the defendants were found to have been negligent in the manner alleged by the plaintiffs, it would have no bearing on the outcome of the action, as Ms. Bernier had signed away the plaintiffs’ right to bring it.

[91] I am satisfied that, as in Arksey, the waiver in this case covered the context in which the risks occurred and, more specifically, Ms. Bernier’s claim of negligence against GranFondo and Mr. Capello. The waiver provided that the person signing it was releasing the “Released Parties”, which included the defendants, from “any and all” liability for personal injury caused by negligence or gross negligence. The waiver expressly stated that the risks associated with the event, which the person signing the waiver was agreeing to assume, included the terrain and the actions of other people including event officials and the producers of the event. The waiver provided that it was the sole responsibility of the person signing the waiver to be familiar with the event course and route. In my view, by signing the waiver, Ms. Bernier, an experienced road cyclist, expressly gave up her right to complain that the defendants were negligent in failing to identify and warn of hazards on the route: She agreed that it was her sole responsibility to be familiar with the event course and route. The waiver also included an acknowledgement that none of the “Released Parties” were assuming any responsibility for the safety of the person signing the release. I am satisfied that a reasonable person asked to sign the waiver would have understood that claims of the nature of those the plaintiffs have advanced against GranFondo and Mr. Capello would be barred by the waiver.

[92] I am also satisfied a reasonable person asked to sign the waiver would have understood that claims of the nature of those the plaintiffs have advanced against Ville d’Ottawa would be barred by the waiver. In my view, this would have been evident from the following references in the waiver: (a) to “terrain” being one of the risks of the event being assumed by the signor of the release; (b) to sole responsibility for being familiar with the event course resting with the person signing the waiver; and (c) to the release of “all provincial, city, town, and other governmental bodies, and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Event or segments of the Event take place” even if injury arose as a result of their negligence or gross negligence.

[93] The cases relied upon by the plaintiffs are distinguishable and do not assist them. Downs involved an obstacle course that was set up specifically for purposes of an event, and not an existing public roadway that was used for an event. The waiver in Downs also focused on the signor’s physical ability to participate in the event and not the organization of the event. The plaintiff in Pascoe claimed that he was injured because there was ice on a ball hockey rink. The motion judge found that the plaintiff was injured because of the condition of the surface of the rink, and not because of any activity normally associated with the playing of the game. He found that it was not contemplated that the waiver would apply to hazards that were “created and perpetuated by [the defendant]”: Pascoe, at para. 27. Brown did not involve a waiver that signed by the plaintiff; the waiver in Brown was on a ski lift ticket.

Conclusion with respect to Issue #2

[94] In conclusion, I find the waiver signed by Ms. Bernier applies to and bars the claims for negligence asserted by the plaintiffs against the defendants GranFondo Ottawa, Mr. Capello and Ville d’Ottawa in relation to the injuries suffered by Ms. Bernier as a result of her fall during the 2018 GranFondo event.

[95] The waiver signed by Ms. Bernier has the effect of barring Ms. Bernier’s claims as well as the claims of her two children. Under the Family Law Act, dependents do not have a right to sue unless the injured party has a right to sue. Section 61(1) of the Family Law Act provides that “[i]f a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages … the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sister of the person are entitled to recover….” (emphasis added). As Ms. Bernier is not entitled to recover damages, neither are her children.

ISSUE #3: Did Ms. Bernier voluntarily assume the risk of injury?

[96] As I have already found that the plaintiffs’ action is barred by the waiver, I will address this issue only briefly. Ms. Bernier was an experienced cyclist who was aware of the risks of road cycling, including falls caused by potholes and road conditions. By signing the waiver, Ms. Bernier expressly acknowledged that the cycling event was “an extreme test of a person's physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to, those caused by terrain, facilities, temperature, weather, condition of athletes, lack of hydration, equipment, vehicular traffic, actions of other people including, but not limited to, participants, volunteers, spectators, journalists….” By signing the waiver, Ms. Bernier also expressly acknowledged that there were risks inherent in cycling on roads travelled by motor vehicles and that none of the released parties was assuming any responsibility for her safety.

[97] I am satisfied that there was an understanding between Ms. Bernier on the one hand and GranFondo and Mr. Capello on the other that GranFondo and Mr. Capello assumed no responsibility for her safety and that she did not expect them to.

[98] I find that by signing the waiver and participating in the event, Ms. Bernier voluntarily assumed the associated physical and the legal risks and that the plaintiffs’ action is barred on this basis.

DISPOSITION

[99] I am satisfied that there is no genuine issue requiring a trial with respect to the plaintiffs’ claims.

[100] The waiver signed by Ms. Bernier applies to and bars the plaintiffs’ claims against the defendants Ville d’Ottawa, GranFondo Ottawa and Greg Capello. Further, Ms. Bernier voluntarily assumed the physical and legal risks associated with the cycling event.

[101] The moving parties’ summary judgment motions are granted.

[102] The plaintiffs’ action is dismissed.

[103] If any issues should arise between Ville d’Ottawa and Nylene Canada Inc. in respect of the disposition of the third party claim, either of these parties may request a case conference with me.

COSTS

[104] The parties are urged to settle the issue of costs. If they are unable to do so, the moving parties may deliver written costs submissions of no more than five pages in length, not including bills of costs, on or before January 10, 2025. The plaintiffs may deliver responding costs submissions, subject to the same page limit, within 21 days of receipt of the moving parties’ submissions.

Justice H. Williams Date: December 12, 2024

COURT FILE NO.: CV -19-81631 DATE: 2024/12/12 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Sandra Bernier, Mérik Couture, minor, and Lydia Couture, minor, represented by their legal guardian Sandra Bernier, Plaintiffs -and- Ville d’Ottawa, GranFondo Ottawa and Greg Capello, Defendants -and- Nylene Canada Inc., Third Party -and- GranFondo Ottawa and Greg Capello, Fourth Parties

COUNSEL: Michel Sicotte, for the Plaintiffs Matthieu Charron, for Ville d’Ottawa Jonathan Tatner, for GranFondo Ottawa and Greg Capello Larry Reimer, for Nylene Canada Inc (Third Party)

REASONS FOR DECISION WILLIAMS J.

Released: December 12, 2024

[1] The plaintiffs did not argue that the defendants were not “Released Parties” under the waiver. I am satisfied that the three defendants, Ville d’Ottawa, GranFondo Ottawa and Greg Capello are all parties who would be released by the waiver, if it is otherwise applicable.

[2] Ms. Bernier could not recall whether she participated in the GranFondo event in 2017, although she signed the waiver for this event. Mr. Holmes said that Ms. Bernier participated as a volunteer road ambassador in 2017. However, whether she participated in 2017 or not has no bearing on my decision.