Canada: A Sports Liability Waiver Provides An Effective Defence In A Fitness Facility Accident Where Appropriately Brought To The Attention Of A Sophisticated Plaintiff

Urbanson v. Western Canadian Place, 2016 ABQB 32, per Master Prowse 

I. FACTS AND ISSUES

The Plaintiff was injured while using a treadmill that malfunctioned. She sued HSG Health Systems Group Limited as the operator of the fitness centre where this took place, pleading in negligence and occupiers' liability. The Defendant HSG applied for summary dismissal of the case, based on a signed waiver it had obtained from the Plaintiff.  

The form of waiver was contained on its own separate page under a bolded heading, in large font and capital letters reading: "INFORMED CONSENT AND AGREEMENT AND RELEASE FORM". Just below that heading, the Waiver provided as follows, in bold font: "Please read carefully before signing." 

The waiver contained the following wording (In non-bolded font, the same size as the balance of the document other than the heading):

I, for myself, my heirs, executors, and administrators, release and forever discharge ... HSG ...and each of their successors and assigns and each of their affiliates, directors, officers, employees, agents, member instructors and independent (collectively called the "Released Parties") from any claims, actions, costs, expenses and demands in respect of death, injury, loss or damage to my person or property (Including without limitation, under the Occupiers' Liability Act) wherever or however caused, including, without limitation, the negligence of one or more of the Released Parties, arising out of or in connection with the use or intended use of Western Canadian Place Fitness Centre.

[Emphasis added by the Court]

The final paragraph, just above the Plaintiff's signature, provided as follows:

I declare that I have read, understood and agree to the contents of this INFORMED CONSENT AGREEMENT & RELEASE FORM in its entirety, and I have signed it voluntarily.

The Plaintiff could not positively swear that she had not read the form but acknowledged that she signed it. She could not recall the circumstances of its signature.

HSG's witness did not have any recollection of engaging in any discussion about the signing of the release. He testified to having followed a standard procedure for signing up a new member to the fitness club. His procedure was to give a tour of the club, to provide the perspective customer with a twelve-page bundle of documents, one page of which was the one-page waiver form and to ask the customer to read the material. He would indicate that he would answer any questions that the customer might have. He did not claim that his standard procedure included drawing attention to the form of waiver or to say anything about the form of waiver with a perspective new customer. The Court noted that "he appeared to allow the waiver form to speak for itself (unless a perspective customer chose to ask questions about it)."

Neither the HSG witness nor the Plaintiff could recall any discussion about the waiver form in question.

The Plaintiff had been a paralegal for fourteen years, with respect to tax, corporate, real estate, personal injury and oil and gas law.

II. HELD: For the Defence; Summary Judgment granted and case dismissed  

1. The Court held that the case was capable of being resolved by way of summary proceedings because the record before the Court allowed an adjudication and disposition that could be fair to both parties for Whitecourt Power Limited Partnership v. Elliott Turbo Machinery Canada Inc., 2015 ABCA 252. Given that neither the Plaintiff nor the Defendant's representative had any recollection of what happened when the waiver was signed there was "no suggestion that a trial judge would have any better evidence before them in order to adjudicate the effectiveness of the release" (paragraph 27).

2. The Court held that the party asserting waiver bears the onus of establishing its effectiveness:Gallant v. Fanshawe College of Applied Arts & Technology, 2009 Carswell Ont. 5734, at paragraph 25.

3. The Court summarized the law with respect to the obligation on a released party to bring the fact and contents of a liability waiver to the attention of the signing party:

[10] The issue of whether HSG owed a common law duty to bring the waiver to the attention of the plaintiff in order for it to be effective was dealt with by McLachlin C.J.S.C. (as she then was) at para. 24 of Karroll v. Silver Star Mountain Resorts Ltd., 1988 Carswell BC 439, [1988] B.C.J. No. 2266:

It emerges from these authorities that 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. For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission.

4. In addition, in occupiers' liability cases, section 8(1) of the Occupiers' Liability Act, R.S.A. 2000 c. 0-4 was held to require the released party to take reasonable steps to bring the liability exclusion to the attention of the signing party.

5. The Court referred to a number of British Columbia cases that held liability waivers to be effective where they were on a separate piece of paper, signed by a relatively sophisticated party, clearly labeled as a release or waiver and where the signing party was given sufficient time to read the waiver: Karroll v. Silver Star Mountain Resorts Ltd., 1988 Carswell BC 439 (B.C.S.C.); Arndt v. Ruskin Slo Pitch Assn., 2011 Carswell BC 2939; Mayer v. Big White Ski Resort Ltd., Carswell BC 836 (BCSC); Loychuk v. Cougar Mountain Adventures Ltd., 2011 BCSC 193; Ocsko v. Cypress Bowl Recreations Ltd., 1992 CanLII 671 (BCCA); Clarke v. Action Driving School Ltd., 1996 Carswell BC 1004 (BCSC). The Court noted that a waiver has been held to be ineffective where the evidence established that the Plaintiff had not read it (Crocker v. Sundance Northwest Resorts Ltd. [1988] 1 SCR 1186; or where the waiver clause was not on a separate page and printed in small font (Parker v. Ingalls, 2006 BCSC 942) or where the waiver clause was hidden within a larger document and the signing party was not given the opportunity to read it.

6. The Court held that the two issues that have to be considered in determining the validity of a waiver are:

(a) Does the wording of the waiver encompass the Plaintiff's claim?; and

(b) If so, do the circumstances surrounding the execution of the waiver prevent the Defendant released party from relying on it?

7. In this case, the Court held that: "[o]n its face, the wording of the waiver encompasses the claims asserted by Ms. Urbanson" (paragraph 9).

8. The Court found the Plaintiff to be a sophisticated party with insight into what she was signing:

[17] The plaintiff has been a paralegal for fourteen years in the areas of tax, corporate, real estate, personal injury and oil and gas law. Common sense would indicate that more efforts need to be taken to communicate the import of a release to a less sophisticated person than to a sophisticated person. Given the plaintiff's work experience it is apparent that she would be considered a sophisticated person as her background would give her insight as to the importance of signing a release.

9. The Court held that the fitness facility was "one of moderate risk" where the risk of injury from using the treadmill could be foreseen, but which involved a lower inherent risk than other activities such as skydiving, ice diving, snowmobile racing or ice cave climbing. The Court held that "the more dangerous the activity the more effort should be taken to bring the nature in effect of the waiver to the attention of the participant" (paragraph 18).

10. The Court held that the Defendant health club had made the reasonable efforts required to bring the import of the waiver to the Plaintiff's attention:

[23] There was nothing in the evidence to suggest that the plaintiff was pressured, rushed or otherwise prevented from reading the waiver.

[24] Given the relative sophistication of the plaintiff and the formatting of the waiver, it is my view that HSG fulfilled its duty to make reasonable efforts to bring the import of the waiver to the attention of the plaintiff. Or, to use the language in the Karroll decision, supra, there were no circumstances to indicate to HSG that the plaintiff was not consenting to the terms in question.

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