Court File and Parties
CITATION: Atkinson v. Scouts Honour Inc., 2026 ONSC 2632
NEWMARKET COURT FILE NO.: CV-22-00003178-0000
DATE: 20260504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENESSA ATKINSON
Plaintiff/Responding Party
– and –
SCOUTS HONOUR INC.
Defendant/Moving Party
Counsel: Monique Meloche for Plaintiff, for the Plaintiff/Responding Party Rovena Hajderi and Kayla Sager, for the Defendant/Moving Party
HEARD: February 3, 2026
REASONS FOR DECISION
DE SA J.:
OVERVIEW
[1] This action arises out of alleged personal injuries suffered by the Plaintiff, Jenessa Atkinson, while she was participating in the filming of a commercial on October 15, 2020 and October 16, 2020. The Plaintiff commenced the within Action on October 6, 2022.
[2] The Plaintiff alleges negligence, negligent misrepresentation, breach of contract, breach of fiduciary duty and breach of duty of honest performance.
[3] On July 14, 2023, the Defendant served their Statement of Defence. In their Statement of Defence, the Defendant pleads that the within action is barred pursuant to the AFBS Release and Waiver for Accident on Set (“AOS”) Insurance Program signed by the Plaintiff on or about March 22, 2021, which released the Defendant from any liability with respect to the injuries alleged in the Statement of Claim.
[4] The Defendant brings this motion for summary judgment seeking to enforce the Release and Waiver executed by the Plaintiff. The Defendant submits that the Release and Waiver precludes the Plaintiff from recovering against it for the injuries and/or damages allegedly suffered while on set. Accordingly, there is no genuine issue requiring a trial pursuant to Rule 20 of the Rules of Civil Procedure.
[5] Having reviewed the materials and the Release and Waiver, I agree with the Defendant that the action is barred, and summary judgment should be granted.
[6] The action is dismissed. The reasons for my decision are outlined below.
SUMMARY OF FACTS
Background
[7] The Plaintiff, Janessa Atkinson, is a self-employed actor and model in the film, TV and commercial industry. She has been working in the industry for approximately 17 years.
[8] The Plaintiff has been working with the same agency, Sherrida, since she obtained her first acting job in 2010. Sherrida, assists the Plaintiff with bookings, contracts and confirmations.
[9] The Defendant, Scouts, is a television productions company who was responsible for filming and overseeing the Commercial for Aeroplan and the shoot for Air Canada.
[10] At the time of the alleged incident, the Plaintiff was a performer who participated in the filming of a commercial on October 15, 2020 and October 16, 2020 (the “Commercial”).
[11] Prior to the filming of the Commercial, the Plaintiff had previously worked with Scouts in filming other commercials. She had also worked on several Alliance of Canadian Cinema, Television and Radio Artists (“ACTRA”) productions.
[12] Prior to filming the Commercial for Aeroplan and the shoot for Air Canada, the Plaintiff had to obtain an ACTRA permit. She had previously obtained approximately a dozen permits and was familiar with the process.
[13] The Plaintiff was not a union member with ACTRA. Therefore, as a non-union member, she also had to pay and apply for a permit to obtain the benefits of a union member on the production.
The Injury
[14] The Plaintiff had open communication with many members of the production team including the director, Mr. Kevin Foley, the production coordinator, Ms. Chelsey Strachan, and the assistant director, Mr. Eric Kaskens.
[15] Prior to the incident, while on break for lunch, Ms. Strachan spoke to the Plaintiff and informed her of the scenes that were to take place in the afternoon, including a fall scene which would require the Plaintiff to stand and fall back onto two thick cushion mats.
[16] When the Plaintiff arrived on set, she spoke with Mr. Foley, explaining her fear of heights. Mr. Foley wanted the Plaintiff to feel comfortable and demonstrated what was required in the scene. The Plaintiff attempted the scene a dozen times.
[17] On the twelfth shot, the Plaintiff reported that she did not feel comfortable continuing with the scene. At that time, the Plaintiff reported a prior concussion. Upon hearing that information, the Defendant immediately stopped filming. On October 16, 2020, when they resumed, there were no falling scenes.
[18] The Plaintiff alleges that as a result of her participation in the filming of the Commercial, she sustained personal injuries, including a concussion.
Signing the Release and Obtaining the Benefits
[19] Following the filming of the Commercial, the Plaintiff applied for and was approved by the ACTRA Fraternal Benefit Society (“AFBS”) to receive Accident on Set (“AOS”) Benefits as part of the AOS Insurance Program.
[20] To obtain coverage under the AOS Insurance Program, the Plaintiff was required to execute the AFBS Release and Waiver (the “Release and Waiver”). The Release and Waiver signed by the Plaintiff provides, among other things:
I confirm that the injury I incurred is as a result of an accident on the set of Project Loyalty (the “Production”) and I understand that I am eligible to apply for Accident on Set Benefits (the “Policy”) as provided through AFBS under Policy 20000, Certificate Number 50450 held by the Production. I further understand that payment of any Accident on Set benefits to which I may be eligible is subject to my signing this Release and Waiver.
Exclusive Remedy and Covenant Not to Initiate a Claim
I specifically agree that the application for and receipt of any benefits pursuant to the Policy shall be my exclusive remedy as well as the exclusive remedy of my heirs, estate trusts, administrators, agents, successors and assigns, for any accident, illness, injury or property damage that is sustained by me as a result of such accident on set. Furthermore, I agree and covenant not to, either directly or indirectly, initiate, commence or maintain any claim, demand, cause of action or other proceeding against any party or otherwise participate in any claim, demand, cause of a proceeding against any party relating to such accident on set. I agree that this paragraph shall be binding on me, my heirs, estate trustees, administrators, agents, successors and assigns regardless of my execution of the Release.
Full and Final Release of Liability and Waiver of Claims (the “Release”)
In consideration for the application and receipt of any benefits under the Policy, the receipt and sufficiency of which is hereby acknowledged, I, my heirs, estate trustees, administrators, agents, successors and assigns (the “Releasor”) do hereby release, acquit, remise and forever discharge the Producers of the Production in which the accident on set occurred, their assistants, employees, performers, staff, independent contractors, agents, successors and assigns and all persons from whom the Producers have obtained goods and services in connection with the Production (collectively, the “Releasees) from any and all actions, causes of action, suits, debts, dues, accounts, covenants, contracts, demands, proceedings and claims for injuries, losses or damages of any kind whatsoever, which the Releasor has had, now has or may hereafter have against the Releasees for or by reason of any cause, matter or thing whatsoever existing up to the present time, relating to any accident on set for which the Releasor has received any benefits pursuant to the Policy.
[21] Prior to signing the Release and Waiver, the Plaintiff requested time to consult a lawyer and to review the documents. The Plaintiff was given an extension of time to do so.
[22] During that time, the Release and Waiver was explained to the Plaintiff by members of AFBS, and she asked many questions about it, all of which AFBS tried to answer.
[23] In exchange for receiving benefits under the AOS Insurance Program, on or about March 22, 2021, the Plaintiff executed the Release and Waiver.
[24] The Plaintiff was approved for benefits for the period of October 19, 2020 to December 12, 2021. She received $870.00 per week throughout the entire benefit period.
[25] The Plaintiff received benefits for lost wages, as well as medical expenses including physiotherapy, medication and vestibular therapy.
[26] During the duration of the benefit period, the Plaintiff received monthly correspondence from AFBS with respect to her AOS Benefits that clearly states that “[b]enefits under the Accident on Set Policy will terminate on… the date which you return to work…”
[27] The Plaintiff’s coverage ended at the end of 2021, after the completion of the benefit term, and upon the Plaintiff’s return to work.
The Claim is Issued
[28] The Plaintiff exhausted the benefits under the AOS Insurance program, returned to work and shortly thereafter, commenced this action.
[29] The Statement of Claim was issued on October 6, 2022. The Plaintiff has claimed as against Scouts Honour Inc. for damages for negligence, negligent misrepresentation, breach of contract, breach of fiduciary duty and breach of duty of honest performance ../../../../../DESAC/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/HVK1FLZ5/Factum of the Plaintiff Atkinson - Revised - Aug-27-25.docx - _bookmark4.
ANALYSIS
General Principles for Summary Judgment
[30] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Animating the interpretation of Rule 20.04(1) is Rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.
[31] A trial is not required if the judge on the motion can: 1) achieve a fair and just adjudication; 2) make the necessary findings of fact; 3) apply the law to those facts; and 4) determine that the motion is a proportionate, more expeditious and less expensive means to achieve a just result rather than going to trial.
[32] As the Supreme Court explained in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 50:
These principals are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute.
Are the Plaintiff’s Claims Barred by the Release and Waiver Signed by the Plaintiff?
[33] The Plaintiff submits that the Release and Waiver is invalid and does not bar the within action for a number of reasons, including:
i) The Waiver referred to an “accident” on set, not a stunt, and accordingly, the Plaintiff’s damages fall outside the scope of the Waiver.
ii) The language of the Waiver is ambiguous and in a standard form.
iii) The Waiver did not name the Defendant as a party.
iv) The Waiver did not waive any rights to pursue a claim in negligence breach of contract or other relief pleaded in the Statement of Claim.
v) The Platiniff maintains that she was not familiar with contracts, was confused with the terms, communicated her confusion and was suffering from cognitive and other injuries.
vi) The Plaintiff advised of her difficulty understanding the documents and process, was economically disadvantaged and felt that she had no choice but to proceed.
vii) The Waiver was overly harsh and the Plaintiff did not communicate a clear intention to waiving her rights.
viii) AFBS and/or the Defendant were aware that any insurance benefits would be limited under the policy and that the Plaintiff would be deprived of rights.
ix) If summary judgment is granted dismissing the action as against Scouts Honour Inc., the Plaintiff submits she will suffer non-compensable damages for pain and suffering, income losses, out-of-pocket expenses and other claims and expenses.
[34] I have considered the various concerns raised by the Plaintiff regarding enforcement of the Release and Waiver. I see no reason that the Release and Waiver should not be given full effect in the circumstances of this case.
[35] In Teron Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), the Supreme Court of Canada stated that effect will be given to a waiver in a contract when the following conditions are satisfied:[^1]
i) On its proper interpretation, the exclusion applies in the circumstances.
ii) The exclusion clause is not unconscionable at the time that the contract was made.
iii) The very strong public policy interest in the enforcement of a valid exclusion clause is not outweighed by another overriding public policy. [^2]
[36] In my view, the Release and Waiver clearly applies and unequivocally bars the Plaintiff from bringing any claim in relation to any accident on set: Kalash v. Carrier One Express, 2015 ONSC 5131; see also Arif v. Li, 2016 ONSC 4579, at paras. 78-79.
[37] The terms of the Release and Waiver are straightforward. By receiving the benefits, the Plaintiff agreed not to initiate, commence or maintain any claim, demand, cause of action, or other proceeding against any party or otherwise participate in any claim, demand, cause of action or proceeding against any party relating to such accident on set.
[38] The Release and Waiver also provides that if any claims or actions are brought in relation to any injury or accident, the Release and Waiver can be raised as a complete defence and absolute bar to any claim.
[39] There were no misrepresentations made regarding the character of the Release and Waiver. To the extent this position has been advanced by the Plaintiff, I do not accept it.
[40] The exclusion clause was not unconscionable. The Plaintiff was also given the opportunity to read and examine the Release and Waiver before signing it. She was encouraged to consult a lawyer and obtain independent advice. She was even given an extension to do so and the opportunity to ask numerous questions about the Release and Waiver.
[41] The defence of non est factum cannot succeed if one is careless or reckless in failing to read or makes no effort to understand the contract: Marvco Colour Research Ltd. v. Harris, 1982 63 (SCC), [1982] 2 S.C.R. 774, at paras. 24 and 25.
[42] In any event, I am satisfied that the Plaintiff here clearly understood the nature and character of the Release and Waiver and signed it voluntarily. I do not accept her assertions that she was confused and did not understand the effect of the Release and Waiver.
[43] The record makes clear that the Plaintiff was familiar with the contents of the Release and Waiver prior to signing it. This is evident from the following:
i) Prior to signing the Release and Waiver, in or around January 4, 2021, the Plaintiff spoke to AFBS staff, namely Charles Northcott, about the AOS process. Through that communication, the Plaintiff was provided with information that she needed and requested. At all times, AFBS staff tried to assist her.
ii) On January 6, 2021, she was advised by staff at AFBS (Vivienne Coelho) by email that the Release and Waiver was a legal document which offered protection to the Production. It was made clear in that email that by signing the document, she would be unable to pursue any legal action against the Production on which she was injured.
iii) On January 7, 2021, the Plaintiff was informed that benefits would terminate once she returned to work.
iv) On January 8, 2021, the Plaintiff again discussed the consequences of signing the Release and Waiver. The exchange makes clear that the Plaintiff understood AFBS would be providing coverage in exchange for releasing the production from any liability.
v) On January 11, 2021, AFBS staff provided the Plaintiff with the website containing AOS benefits information.
vi) From January 2021 up until March 22, 2021 when the Plaintiff signed the Release and Waiver, there was ongoing correspondence and phone calls on the contents of the Release and Waiver.
[44] While there may be public policy considerations that trigger the Court’s residual power to give relief against an exclusion clause, the Supreme Court made clear that the jurisdiction should be exercised sparingly.
[45] To avoid the effect of an exclusion clause, a plaintiff must identify the overriding public policy that it says outweighs the public interest in the enforcement of the contract.; Tercon Contractors Ltd., supra, at para. 120.
[46] In my view, no such public policy considerations apply here. On the contrary, it would clearly be unfair to allow the Plaintiff to pursue further recourse having signed the waiver and having received the benefits contemplated by the terms of the policy.
[47] As Donovan L.J. explained in Muskham Finance. Ltd. v. Howard, [1963] 1 Q.B. 904, [1963] 2 W.L.R. 87, [1963] 1 All E.R. 81 (C.A.), at p. 912:
Much confusion and uncertainty would result in the field of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he had signed.
[48] In light of the above, summary judgment is granted.
[49] The action is dismissed.
[50] I will receive costs submissions from the Defendant within 2 weeks of the release of this decision. The Plaintiff will have 2 weeks thereafter to respond.
Justice C.F. de Sa
Released: May 4, 2026
CITATION: Atkinson v. Scouts Honour Inc., 2026 ONSC 2632
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENESSA ATKINSON
Plaintiff/Responding Party
– and –
SCOUTS HONOUR INC.
Defendant/Moving Party
REASONS FOR DECISION
Justice C.F. de Sa
Released: May 4, 2026
[^1]: Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), 2010 SCC 4, at paras. 121-123 [“Tercon”].
[^2]: Karroll v. Silver Star Mountain Resorts Ltd., 1988 3094, at para. 10 [“Karroll”].