Canada: Case Summary: Quilichini v Wilson's Greenhouse & Garden Centre Ltd. And Velocity Raceway Ltd.

Last Updated: November 6 2019
Article by Brian Vail, QC

An electronic contract, executed electronically, including a liability exclusion form, was held to be effective to bar a defendant’s liability for a sports accident. 

Quilichini v. Wilson’s Greenhouse & Garden Centre Ltd. and Velocity Raceway Ltd., 2017 SKQB 10, per Scherman, J. 

Facts + Issues

The Plaintiff, Quilichini, sued for damages for personal injury suffered while driving a go-kart owned and operated by the Defendant, Velocity Raceway (Velocity), on Velocity’s premises. Notwithstanding a factual dispute as to the cause of the accident, Velocity applied for summary dismissal on the grounds that Quilichini had electronically completed an electronic contract, which contained a waiver form in the following terms before participating in the go-karting activity:



In consideration of Velocity Raceway Ltd. permitting me access to their premises and use of their equipment and facilities, I hereby acknowledge and agree as follows:

ASSUMPTION OF RISK I understand that this activity is dangerous and may become more hazardous or dangerous during the time I am on the premises of Velocity Raceway. … I am aware that the machines may travel at speeds of up to 80 kilometres per hour and that equipment failures or carelessness of other drivers are always possible. I understand the risk of injury from operating a go kart is significant, including the potential for serious bodily injury, paralysis and death; that I am aware of all the risks and hazards inherent with my operating a go kart at Velocity Raceway. It is entirely my choice to take part in this activity, and I therefore, accept and assume responsibility for any possible risk involved in my participating in this sport.

RELEASE I hereby acknowledge and forever discharge Velocity Raceway Ltd., its owners, employees, agents and affiliates, as well as their successors and assigns, from any and all claims, liabilities, demands, and/or actions for damages (including legal costs) arising in any way from my participation in go kart racing on their property. This release includes, inter alia, damages for personal injury, property damage and wrongful death and shall be binding on my heirs, successors and assigns.

All Velocity customers were required to first pass through a kiosk and execute an electronic contract with the release before being allowed to participate in go-karting:

[5] All persons wishing to participate in Velocity’s go kart races had to proceed through a kiosk system and execute the electronic waiver and release. Within this kiosk system, customers or participants:

  1. provide personal information, complete a membership application and pay for such membership;
  2. are photographed;
  3. go through a series of electronic pages on a computer screen and have to click “next” to move from one electronic page to the next; and
  4. agree to the terms of a waiver and release [e Waiver].

All participants are obligated to click the “I agree” icon or selection on the electronic waiver and release form presented to them on a screen before they are permitted to participate in a race.

On the day in issue, Quilichini had been processed through the kiosk system before engaging in go-karting. He had provided personal information, paid the fee, was photographed and had clicked the “I agree” icon.

Velocity argued that Quilichini’s electronic signature on the agreement was binding and that the e-Waiver provided a complete and absolute defence to his claim. Quilichini argued that a trial was necessary as to whether he actually executed the e-Waiver because the screen print of the e-Waiver form had signature spaces for both the participant and a staff member. He also argued that the exclusion of liability clause should be narrowly construed to be inapplicable because it did not expressly release Velocity from its own negligence.

HELD: For the Defendant; claim summarily dismissed. 

The Court held that the electronic contract formed by Quilichini having processed through Velocity’s kiosk system was binding, including with respect to the liability exclusion clause.

  1. The Court relied on Saskatchewan legislation, The Electronic Information and Documents Act, 2000, S.S. 2000, c. E-7.22, s. 18, which provided as follows:

Formation and operation of contracts

18(1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed:

  1. by means of information or a document in an electronic form; or  
  2. by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

(2) A contract shall not be denied legal effect or enforceability solely by reason that information or a document in an electronic form was used in its formation. 

  1. The Court concluded that the legislation clearly allowed for binding contracts to be formed electronically, and applied to have that effect in this case:

[10] The legislation is clear. Agreement to contractual terms can be expressed by touching or clicking on an appropriately designated icon or place on a computer screen. The fact that the contract could have alternatively been executed by printing a hard copy and having a participant sign a hard copy form does not detract from the foregoing. The fact that there are optional ways to execute the contract does not lead to the conclusion that using only one of those options does not constitute agreement.

[11] As s. 18(1) of the Act provides, “Unless the parties otherwise agree ...”, the formation of a contract may be expressed in electronic form. There is no evidence here of the parties having agreed otherwise.

[12] I do not need a trial or to hear further evidence. I can make a fair and just determination of the issue of whether or not the plaintiff provided agreement in electronic form based on the affidavit evidence before me. I am satisfied from the uncontradicted evidence of the applicants that the plaintiff had an opportunity to read the waiver and release on screen while progressing through the kiosk system and that he, in fact, indicated his agreement to these terms in an electronic form.

[13] The fact that there was a hard copy alternative for a traditional signature does not alter the fact that the plaintiff gave an electronic agreement to the waiver and release. I am satisfied from the evidence that had he not done so, he would not have been permitted to participate in the go kart races in question.

  1. The Court summarized the principles relating to contractual limitations or waivers of liability:

[14] As stated in Fraser Jewellers (1982) Ltd. v Dominion Electric Protection Co. (1997), 1997 CanLII 4452 (ON CA), 148 DLR (4th) 496 (Ont CA) [Fraser]:

[30] As a general proposition, in the absence of fraud or misrepresentation, a person is bound by an agreement to which he has put his signature whether he has read its contents or has chosen to leave them unread. Cheshire, Fifoot & Furmston’s Law of Contract, 13th ed. (Toronto: Butterworths, 1996) at p. 168. Failure to read a contract before signing it is not a legally acceptable basis for refusing to abide by it. A businessman executing an agreement on behalf of a company must be presumed to be aware of its terms and to have intended that the company would be bound by them. The fact that Mr. Gordon chose not to read the contract can place him in no better position than a person who has. Nor is that fact that the clause is in a standard pre printed form and was not a subject of negotiations sufficient in itself to vitiate the clause. L’Estrange v. F. Graucob Ltd., [1934] 2 K.B. 394 at 403; Craven v. Strand Holidays (Canada) Ltd. (1982), 1982 CanLII 1859 (ON CA), 40 O.R. (2d) 186 at 194, 142 D.L.R. (3d) 31 (C.A.).

[31] This is not a case in which the clause limiting liability was so obscured as to make it probable that it would escape attention. This contract was printed and contained on essentially one sheet of paper. The limitation provision was highlighted in bold block letters. The language is clear and unambiguous. There was no need to resort to a magnifying glass to see it or a dictionary to understand it. Nothing was done to mislead a reader. Had Mr. Gordon perused the contract, he would have been aware of the limitation. The fact that he did not is irrelevant to the question of the fairness or conscionability of the contract.

[15] While Fraser was a decision dealing with a businessman signing a contract for commercial services, that principle has consistently been applied to contracting parties generally. See CED (online), Contracts “Formation of Contract – Offer and Acceptance” (II.6) at paras 91 94 (WL) (9 January 2017), and in particular those cases listed under footnote 10 dealing with releases signed by participants in activities sometimes classified as dangerous.

[16] Karroll v Silver Star Mountain Resorts Ltd. (1988), 1988 CanLII 3094 (BC SC), 33 BCLR (2d) 160 (BCSC), sets out the test to be applied in determining whether a waiver or release from liability is enforceable. Chief Justice McLachlin (as she was then) ruled, at page 164, that the applicable legal principles are as follows:

The key, in my opinion, is recognition of the limited applicability of 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. It is not a general principle of contract law establishing requirements which must be met in each case. Rather, it is a limited principle, applicable only in special circumstances.

One must begin from the proposition set out in L’Estrange v. F. Graucob, supra, at pp. 406 407, that “where a party has signed a written agreement it is immaterial to the question of his liability under it that he has not read it and does not know its contents”. ...

  1. Scherman, J. concluded that Velocity’s kiosk process involved reasonable measures to ensure that the waiver was brought to the attention of go-karting participants and was thus binding on Quilichini:

[17] The evidence here satisfies me that Velocity took reasonable measures to ensure that its customers received notice of the waiver and release provisions. Their kiosk system was designed so as to ensure the waiver and release page was presented to its customers and customers had to indicate acceptance before they could participate. The plaintiff’s evidence does not challenge the evidence of the defendants in this respect. Further, the activity involved was of a nature where it was normal for participants to expect to have to sign a waiver and release. The plaintiff would have understood that if he did not sign a release, he did not get to participate. He had freedom to choose.

[18] The plaintiff had a full opportunity to read the waiver and release and that there was nothing obscure in the presentation of waiver and release or the choice whether to accept or not. The plaintiff does not suggest in his reply affidavit that he did not have an opportunity to read the waiver and release nor that he did not know what he was agreeing to when he clicked his agreement.

The Court concluded that the language of the e-Waiver covered Velocity’s own negligence so as to provide a complete defence, even though it did not expressly purport to exclude such negligence.

  1. The Court passed on the principle of interpretation which provides that exclusion of liability clauses are to be strictly construed:

[20] In Bank of British Columbia Pension Plan v Kaiser, 2000 BCCA 291 (CanLII), 137 BCAC 37, the court, dealing with the interpretation of exclusion of liability clauses in contracts, said:

[17] Chitty on Contracts sums up the relevant case law with respect to the interpretation of a discharge of a contract or release as follows (pp. 1074 5):

  1. No particular form of words is necessary to constitute a valid release. Any words which show an evident intention to renounce a claim or discharge the obligation are sufficient.  
  2. The normal rules relating to the construction of a written contract also apply to a release, and so, a release in general terms is to be construed according to the particular purpose for which it was made.  
  3. The court will construe a release which is general in its terms in the light of the circumstances existing at the time of its execution and with reference to its context and recitals in order to give effect to the intention of the party by whom it was executed.  
  4. In particular, it will not be construed as applying to facts of which the party making the release had no knowledge at the time of its execution or to objects which must then have been outside his contemplation.  
  5. The construction of any individual release will necessarily depend upon its particular wording and phraseology.

[21] While various courts have said that a rule of strict construction applies to exclusion of liability clauses, that proposition must not turn strict construction into strained construction. In Hunter Engineering Co. v Syncrude Canada Ltd., 1989 CanLII 129 (SCC), [1989] 1 SCR 426, the court said there is nothing inherently unreasonable about exclusion clauses and they should be applied unless there is compelling reason not to give effect to the agreement of the parties. At page 462, it stated:

… If on its true construction the contract excludes liability for the kind of breach that occurred, the party in breach will generally be saved from liability. Only where the contract is unconscionable, as might arise from situations of unequal bargaining power between the parties should the courts interfere with agreements the parties have freely concluded. …

[22] In Tercon Contracting Ltd. v British Columbia, 2010 SCC 4 (CanLII), [2010] 1 SCR 69 [Tercon], a case involving the unique considerations of contract tendering, the Court held (summarized in the headnote (QL) to the decision) that:

… With respect to the appropriate framework of analysis the doctrine of fundamental breach should be “laid to rest”. The following analysis should be applied when a plaintiff seeks to escape the effect of an exclusion clause or other contractual terms to which it had previously agreed. The first issue is whether, as a matter of interpretation, the exclusion clause even applies to the circumstances established in evidence. This will depend on the court’s interpretation of the intention of the parties as expressed in the contract. If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable and thus invalid at the time the contract was made. If the exclusion clause is held to be valid at the time of contract formation and applicable to the facts of the case, a third enquiry may be raised as to whether the court should nevertheless refuse to enforce the exclusion clause because of an overriding public policy. The burden of persuasion lies on the party seeking to avoid enforcement of the clause to demonstrate an abuse of the freedom of contract that outweighs the very strong public interest in their enforcement. Conduct approaching serious criminality or egregious fraud are but examples of well accepted considerations of public policy that are substantially incontestable and may override the public policy of freedom to contract and disable the defendant from relying upon the exclusion clause. …

  1. The Court accepted a three-stage analysis for interpreting liability exclusion forms as set out in Isildar v Kanata Diving Supply, 2008 CanLII 29598 (Ont Sup Ct):

[24] In a detailed judgment of over 700 paragraphs, Roccamo J. held that a three stage analysis was required to determine whether a waiver of liability in such circumstances was valid and enforceable. The elements of his analysis are as follows:

  1. Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?  
  2. What is the scope of the release and is it worded broadly enough to cover the conduct of the defendants?  
  3. Should the release not be enforced because it is unconscionable?
  1. The Court applied these principles to conclude that the scope of Velocity’s e-Waiver covered their own negligence and thus provided a complete defence:

[30] The language of the “Assumption of Risk” portion of the subject e Waiver is in plain English and expressly makes the points that:

  1. the activity is dangerous; and  
  2. equipment failures are always possible.

It continues with the participants stating they understand the risks and that it is entirely their choice to participate in the activity and that they accept and assume responsibility for “any possible risk involved ….”

[31] The language of the “Release” portion of the e Waiver is similarly plain English and expressly provides a discharge “from any and all claims, liabilities, demands and/or actions for damages (including legal costs) arising in any way from my participation in go kart racing ....”

[32] As stated in Tercon, the first issue is whether, as a matter of interpretation, the exclusion clause even applies to the circumstances established in evidence. This will depend on the court’s interpretation of the intention of the parties as expressed in the contract. There can be no question but that the plaintiff understood that the assumption of risk and waiver of claims set out in the e Waiver applied to his participation in the go kart races. His acceptance was required for him to participate. The choice for him could not have been clearer.

[33] In my opinion, there can be no question but that when the plaintiff clicked “I agree”, he was intending to accept and assume responsibility for any possible risk involved and knew he was agreeing to discharge or release the defendants from all claims or liabilities arising, in any way, from his participation. The words “all claims, liabilities, demands and/or actions for damages (including legal costs) arising in any way from my participation in go kart racing” mean what they say and include claims arising from negligence. This language is at least as encompassing as words such as “howsoever arising” or “from any cause whatsoever” as used in Clarke or Simpson.

[34] I am of the opinion that while the e Waiver does not include the word negligence, it was clear the intent of the document was to release the defendant Velocity from liability of all claims or liabilities arising from his participation which includes claims that may be based on negligence of the defendants and should have reasonably been so understood by the plaintiff. The affidavit evidence establishes that Velocity was the sole owner and operator of the go kart racing facility and that Wilson’s, while a related corporation, was in no way involved.


Alberta has similar legislation to Saskatchewan’s Electronic Information and Documents Act, s.18 which, in our opinion, would lead to the same result in Alberta in conjunction with the common law cited in this case. Alberta’s Electronic Transactions Act, R.S.A. 2000, c. E-5.5, ss. 27 – 29 provide as follows: 

Formation and operation of electronic contracts

27  Unless the parties otherwise agree, an offer, the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed 

  1. by means of information or a record in electronic form, or  
  2. by an act that is intended to result in electronic communication, such as
  1. touching or clicking on an appropriate icon or other place on a computer screen, or  
  2. speaking.

Involvement of electronic agents

28  A contract may be formed by the interaction of an electronic agent and a person or by the interaction of electronic agents.

Errors re transactions with electronic agents 29  An electronic transaction between a person and another person’s electronic agent has no legal effect if 

  1. the person makes a material error in the electronic information or an electronic record used in the transaction,  
  2. the electronic agent does not give the person an opportunity to prevent or correct the error,  
  3. on becoming aware of the error, the person promptly notifies the other person, and  
  4. in a case where consideration is received as a result of the error, the person 
  1. returns or destroys the consideration in accordance with the other person’s instructions or, if there are no instructions, deals with the consideration in a reasonable manner, and  
  2. does not benefit materially by receiving the consideration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
17 Oct 2019, Webinar, Calgary, Canada

Business succession is a principal and critical component of personal succession for owners of closely held businesses. This is a long-term, complex process that must be managed with a structured approach. 

19 Nov 2019, Seminar, Edmonton, Canada

One year after Canada legalized cannabis for recreational use, this panel will discuss the implications in the workplace, society, and to our country overall. The panel will explore all angles of post-legalization and feature experts from workplace safety and standards, a producer, and a licensed retail store.

21 Nov 2019, Webinar, Calgary, Canada

Possession and use of cannabis has now been legal in Canada for one year and edibles became legal on October 17, 2019. What has the year looked like and what new considerations do edibles add to the mix?

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions