Urbanson v Western Canadian Place Ltd, 2016 ABQB 32

Court of Queen ’ s Bench of Alberta Citation: Urbanson v Western Canadian Place Ltd, 2016 ABQB 32 Date: 20160118 Docket: 1301 04074 Registry: Calgary Between: Tammie Urbanson Plaintiff - and - Western Canadian Place Ltd., HSG Health Systems Group Limited, Core Industries LLC, doing business as Star Trac, Unisen Inc., formerly doing business as Star Trac, Ford Insolvency Management Services Inc., formerly known as Ford-ABC 864736 Inc., and John Doe Defendants Corrected judgment: A corrigendum was issued on January 28, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of J.T.

Prowse , Master in Chambers _______________________________________________________

[1] The plaintiff Tammie Urbanson was injured when a treadmill she was using malfunctioned. She sued a number ofdefendants, including the defendant HSG Health Systems Group Limited (“HSG”), to recover damages for the injuries she suffered.HSG operated the fitness center where the treadmill was in use. [2] HSG applies for

summary dismissal pursuant to Rule 7.3 on the basis that any claim which Ms. Urbanson may have againstit has been waived by a written waiver agreement that Ms. Urbanson signed when she initially joined the fitness facility. [3] The dismissal application is narrow in scope. It deals only with the efficacy of the waiver, and does not engage the issue ofwhether Ms. Urbanson would have a cause of action were it not for the written waiver. [4] The issues which I will now consider are: (

i) Does the wording of the waiver encompass Ms. Urbanson’s claim? (ii) If the answer to (

i) is yes, do the circumstances surrounding the signing of the waiver prevent HSG from relying on it? [5] As a matter of procedural law, it is clear that the onus of proof on this

summary dismissal application rests on HSG. [6] As a matter of substantive law, where a party such as HSG asserts waiver, the onus is on HSG to establish it: Gallant v.Fanshawe College of Applied Arts & Technology, 2009 CarswellOnt 5734, [2009] O.J. No. 3977 at para. 25. The wording of the waiver [7] Here is the relevant wording of the subject waiver (emphasis added): I, for myself, my heirs, executors, and administrators, release and forever discharge ...

HSG ...and each of their successors and assignsand each of their affiliates, directors, officers, employees, agents, member instructors and independent (collectively called the “ReleasedParties”) 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, thenegligence of one or more of the Released Parties, arising out of or in connection with the use or intended use of Western Canadian PlaceFitness Centre. [8] The statement of claim asserts against HSG claims for negligence and for liability under the Occupiers’ Liability Act, R.S.A.2000, c.

O-4. [9] On its face, the wording of the waiver encompasses the claims asserted by Ms. Urbanson. Steps taken to bring the waiver to the attention of the plaintiff [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 beeffective was dealt with by McLachlin C.J.S.C. (as she then was) at para. 24 of Karroll v. Silver Star Mountain Resorts Ltd., (BC SC), 1988 CarswellBC 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 reasonablesteps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances aresuch that a reasonable person should have known that the party signing was not consenting to the terms in question, that such anobligation arises.

For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission. [11] The duty to take reasonable steps to bring the exclusion of liability to the attention of the plaintiff is statutorily confirmed bysection 8(1) of the Occupiers’ Liability Act, R.S.A. 2000, c.

O-4, which states: 8(1) The liability of an occupier under this Act in respect of a visitor may be extended, restricted, modified or excluded by expressagreement or express notice but no restriction, modification or exclusion of that liability is effective unless reasonable steps were taken tobring it to the attention of the visitor. [12] The Karroll case was applied in Arndt v. Ruskin Slo Pitch Assn., 2011 BCSC 1530 , 2011 CarswellBC 2939, 343D.L.R. (4th) 356, 92 C.C.L.T. (3d) 160. [13] The Court in Arndt summarized a number of decisions in which the court had found waivers to be enforceable, namely Mayerv.

Big White Ski Resort Ltd., 1997 CarswellBC 836 (B.C. S.C. [In Chambers]); Loychuk v. Cougar Mountain Adventures Ltd., 2011BCSC 193 (B.C. S.C.); Ocsko v. Cypress Bowl Recreations Ltd., (1992), (BC CA), 74 B.C.L.R. (2d) 159 (B.C. C.A.);and Clarke v. Action Driving School Ltd.,(1996), 62 A.C.W.S. (3d) 1240 (B.C. S.C.) [1996 CarswellBC 1004 (B.C.

S.C.)] [14] The summarized cases, referred to above (including Karroll), were similar to the case at hand in that they dealt with situationswhere the release was usually placed on a separate piece of paper, the plaintiff was a relatively sophisticated party, the document wasclearly labelled as a release or waiver, and the parties were given sufficient time to read the waiver. [15] On the other hand, in the Arndt case itself, and in two cases noted in Arndt, the waiver was found to be not enforceable, forthe following reasons: • In Crocker v.

Sundance Northwest Resorts Ltd., (SCC), [1988] 1 S.C.R. 1186, the plaintiff was injured in a tuberace run by the defendant. A few days before the race the plaintiff signed an “Official Entry Form and Waiver”. The trial judge found asa fact that the plaintiff had not read the waiver provision in the form. I note that such a finding is not possible on the evidence before me

in this case. The plaintiff in this case cannot positively swear that she did not read the form. She signed the page in question and cannot remember the circumstances i.e. she is not in a position to deny reading it. • In Parker v. Ingalls , 2006 BCSC 942 , the waiver was not on a separate page, the liability waiver portions were printed in a very small font, and it did not refer to negligence. • In the Arndt case itself, the waiver information was ‘hidden’ within a team roster sign up document and the plaintiff was not given the opportunity to read the waiver. [ 16 ] I will now comment on the following facts relevant to the enforceability of the waiver in this case: (

i) the background of the plaintiff. (ii) the nature of the activity to which the release relates. (iii) the circumstances surrounding the execution of the release, including what was done to bring the import of the release to the attention of the plaintiff. The background of the plaintiff [ 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 import of signing a release. The nature of the activity [ 18 ] The activity in question, that is the use of a fitness facility, is one of moderate inherent risk. One could forsee the risk of injury from this activity, but it would appear of lower inherent risk than skydiving, ice diving, snowmobile racing, or ice cave climbing.

The more dangerous the activity the more effort should be taken to bring the nature and effect of the waiver to the attention of the participant. The circumstances surrounding the execution of the release [ 19 ] HSG’s witness states that he had a standard procedure when signing up a new member such as the plaintiff, and he believes that he followed that procedure in this case. [ 20 ] His standard procedure was to: (

i) give a tour of the facility (ii) provide the prospective customer with a bundle of documents, approximately 12 pages in total, of which one separate page (requiring a separate signature) was the form of waiver (iii) ask the prospective customer to read over the package of materials and indicate that he would answer any questions they might have about those forms. [ 21 ] HSG’s witness did not claim that it was part of his standard procedure to draw attention to the form of waiver or to say anything about the form of waiver.

In other words, he appeared to allow the waiver form to speak for itself (unless the prospective customer chose to ask questions about it). Neither HSG’s witness nor the plaintiff has any recollection of engaging in any discussion about the release. [ 22 ] Insofar as the form of waiver speaking for itself, I would make the following observations: (

i) it was not presented as a separate document, but rather as one separate page contained in a 12 page bundle of documents (ii) it did have a bolded heading in a larger font and capitalized letters as follows: INFORMED CONSENT AND AGREEMENT AND RELEASE FORM (iii) it did have a bolded statement, in regular sized font, just below the heading, stating: Please read carefully before signing (iv) the operative paragraph, quoted in paragraph 7 of these reasons, was the third full paragraph of the document. It was in the same sized non-bolded font as the balance of the document. (

v) immediately following the operative paragraph was a shorter paragraph, separately initialled by the plaintiff, stating: I consent to taking all of the above noted and other risks by VOLUNTARILY PARTICIPATING in all and any fitness programs, which may or may not be designed and implemented by a qualified fitness consultant employed by Western Canadian Place Fitness Centre. (vi) the final paragraph of the waiver, immediately above the customer’s signature, stated 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.

[ 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. [ 25 ] Accordingly, on the basis of the written waiver, I allow HSG’s application for

summary dismissal. The appropriateness of

summary proceedings [ 26 ] A

summary determination should only be made if the record before the court can lead to an adjudication and disposition that is fair and just to both parties: Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc. , 2015 CarswellAlta 1379, 2015 ABCA 252 at para 9 . [ 27 ] In this case, neither the plaintiff nor HSG’s representative have any recollection of what happened on the day the waiver was signed. Thus there is no suggestion that a trial judge would have any better evidence before them in order to adjudicate on the effectiveness of the release.

For that reason I have proceeded to determine the matter summarily. Costs [ 28 ] If the parties cannot agree on costs they shall approach me for a ruling in that regard within the next 60 days. Heard on the 7 th day of January, 2016. Dated at the City of Calgary, Alberta this 18 th day of January, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: Murray D. MacKay Murray MacKay Professional Corporation for the Plaintiff Emmett Scrimshaw Parlee McLaws LLP for the Defendant HSG _______________________________________________________

Corrigendum of the Reasons for Judgment of J.T. Prowse Master in Chambers _______________________________________________________ Citation Line has been changed from Citation: Urbanson v Western Canadian Place, To Citation: Urbanson v Western Canadian Place Ltd,