Birss v Tien Lung Taekwon-Do Club, 2017 ABQB 518

Court of Queen’s Bench of Alberta Citation: Birss v Tien Lung Taekwon-Do Club, 2017 ABQB 518 Date: 20170825 Docket: 1203 01778 Registry: Edmonton Between: Kevin Birss by His Litigation Representative Melissa Birss, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Tien Lung Taekwon-Do Club, Authentic South Side Taekwon-Do Club and Nicholas Pagnotta Defendants Corrected judgment: A corrigendum was issued on September 5, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of L.A.

Smart , Master, Court of Queen's Bench of Alberta _______________________________________________________ Introduction [ 1 ] Plaintiff/Respondent, Kevin Birss (“Mr. Birss”), suffered a subdural hematoma after participating in a black belt test organized and run by the Defendants/Applicants, Tien Lung Taekwon-Do Club and Authentic South Side Taekwon-Do Club (the “Defendant Clubs”). The final test event Mr. Birss participated in was three sparring matches, the last one, in part, against the Defendant/Applicant, Nicholas Pagnotta (“Mr. Pagnotta”), an instructor working for the Defendant Clubs.

Before the events in issue, Mr. Birss had signed a membership agreement document with the Defendant Clubs, which included a waiver of liability. [ 2 ] The Plaintiffs, Mr. Birss and his wife, Melissa Birss (“Mrs. Birss”), sued Mr. Pagnotta for battery and negligence and the Defendant Clubs alleging vicarious liability and negligence. [ 3 ] The Plaintiffs seek to amend their Statement of Claim to add allegations of breach of fiduciary duty. The Defendants seek

summary dismissal of the entirety of the Plaintiffs’ action on the grounds that (

i) the proposed amendment lacks merit and (ii) implied consent and the waiver of liability provide complete defences to the Plaintiffs’ other claims of battery and negligence.

[ 4 ] For the following reasons, the amendment application is granted and the

summary dismissal application is dismissed. Facts [ 5 ] In September 2007, Mr. Birss signed up for a trial taekwon-do membership with the Defendant Clubs. At that time, he signed a two-page trial membership agreement that included waiver of liability terms (the “September Agreement”). The September Agreement provides: THE MEMBER/PARENT/GUARDIAN agrees to undertake sole responsibility in attending the facilities of Tien Lung. ...

The Member/Parent/Guardian agrees to hold Tien Lung, its officers, agents and employees harmless from any claim, liability or demand of any kind or on account of personal injury, property damage or loss of any kind, in whole or in part, upon the members/guests claim that he or she had not agreed to assume the risks specified above. … I understand and agree that the school will not be held liable for injuries, damages, etc. not caused by or resulting from the negligence of the owners, operators, employees or persons in charge of such establishment. [ 6 ] After his trial membership period ended, in November 2007, Mr.

Birss signed up for a full taekwon-do membership with the Defendant Clubs. He signed a new three-page membership agreement that included different waiver of liability terms (the “November Agreement”). When Mr. Birss signed the November Agreement, his wife and the chief instructor of the Authentic Defendant Club, Marc Gaudet (“Mr. Gaudet”), were present. The top of the third page of the November Agreement reads: “ Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement. By signing this document you will waive certain legal rights, including the right to sue.

Please read carefully! ” The November Agreement provides: I am aware that activities in any way relating to Taekwon-Do, including Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition (“Taekwon-Do Activities”) involves many RISKS AND DANGERS . I understand and acknowledge that known and unknown risks and dangers associated with my/my child’s participation in Taekwon-Do Activities may result in personal injury, death, property damage or loss.

I understand as well that personal injury, death, property damage or loss may be caused or contributed to by the NEGLIGENCE OR CARELESSNESS of myself/my child or others. In consideration of T.L.

Taekwon-Do Development Ltd., Tien Lung Taekwon-Do Club, Terrence Joseph Wisniewski, Kari Leah Wisniewski, Authentic South Side Taekwon-Do Club, Diversified Health Lifestyles Systems Ltd., Marc Douglas Gaudet, Evelyn Lisa Charlotte Gaudet and any of their officers, directors, employees, contractors, sub-contractors, volunteers or agents (the “Taekwon-Do Entities”) allowing my/my child’s participation in all activities in any way relating to Taekwon-Do, including without limitation, Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition (“Taekwon-Do Activities”), I agree, on behalf of myself, my heirs, assigns, personal representatives and next- of-kin, that: a.

I ASSUME AND ACCEPT, WITHOUT LIMITATION, ALL RISKS AND DANGERS associated with my/my child’s participation in Taekwon-Do Activities. … c.

I RELEASE, WAIVE AND FULLY DISCHARGE the Taekwon-Do Entities and any other person, organization or entity involved in Taekwon-Do Activities from any and all claims, demands, obligations and liabilities of any kind or nature whatsoever arising from or connected, directly or indirectly with my/my child’s presence at or participation in Taekwon-Do Activities due to any cause whatsoever, including NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF ANY STATUTORY DUTY OR OTHER DUTY , on the part of the Taekwon-Do Entities or otherwise, and I accept that this release covers and includes, but is not limited to, all unknown and unforeseen claims, injuries, damages and losses, and any consequences thereof. d.

I will INDEMNIFY AND HOLD HARMLESS the Taekwon-Do Entities from any damage, loss, liability, legal costs and other expenses that they may suffer or incur by reason of any claim against them arising from or connected, directly or indirectly, with my/my child’s presence at or participation in Taekwon-Do Activities, including any claim based on NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF STATUTORY DUTY OR OTHER DUTY . I HAVE READ THIS DOCUMENT THOROUGHLY. I UNDERSTAND THAT BY SIGNING THIS DOCUMENT, I GIVE UP IMPORTANT LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.

I UNDERSTAND THAT THE WORDS “I”, “MY” AND “MYSELF” HEREIN SHALL IMBIBE AND APPLY TO ANY SIGNATORIES TO THIS AGREEMENT. [ 7 ] Mr. Birss continued his participation with the Defendant Clubs for three-and-a-half years until he took his black belt test on March 18 and 19, 2011. The black belt test included the following: a running test, a fitness test, a kicking skills test, a patterns test, and three two-minute sparring matches. Mr. Birss completed all of these. The sparring matches were the last events.

[ 8 ] Mr. Birss faced off against different opponents in each of the three matches. However, halfway through the third match, Mr. Gaudet pulled out Mr. Birss’ opponent and substituted in Mr. Pagnotta. [ 9 ] At the time, Mr. Pagnotta was an instructor with the Defendant Clubs and held a third degree black belt. He was an experienced taekwon-do practitioner and had competed at national and international levels. Mr. Pagnotta had never instructed Mr. Birss and the sparring match was their first direct interaction. All of the other opponents Mr.

Birss faced off against held black belts but were not taekwon-do instructors. [ 10 ] Cell phone videos of the sparring matches were submitted as evidence. The evidence shows Mr. Pagnotta as the most aggressive opponent Mr. Birss faced. Upon Mr. Pagnotta entering the match the intensity of the sparring escalated. At one point an unidentified individual intervened to allow retrieval of Mr. Birss’ mouth guard that had been knocked from his mouth. While Mr. Birss sustained strikes from all of his opponents, the strikes delivered by Mr.

Pagnotta, most notably the head strikes were markedly more forceful. [ 11 ] Following his sparring match with Mr. Pagnotta, Mr. Birss complained of a headache. Shortly thereafter he began to vomit before losing consciousness. He was rushed to the hospital where he underwent surgery for a subdural hematoma. Mr. Birss continues to suffer permanent injury affecting his vision, mobility, and mental capacity. Issues [ 12 ] The first issue to determine is whether the Plaintiffs should be allowed to amend their Statement of Claim. [ 13 ] The second is the Defendants’ application for

summary dismissal. That application raises several issues: 1. Assuming the Plaintiffs’ amendments are allowed, is there merit to the breach of fiduciary duty allegations? 2. Does the defence of implied consent warrant the

summary dismissal of the Plaintiffs’ claims of battery and negligence? 3. With respect to the defence of waiver of liability: a. Did the Defendants take reasonable steps to bring the terms of the waivers to Mr. Birss’ attention, thereby binding him? b. Do the battery and negligence alleged fall within the scope of the waivers? Discussion Application to Amend Statement of Claim [ 14 ] The Plaintiffs seek to amend their Statement of Claim to add breach of fiduciary duty allegations.

Test to Amend Pleadings [ 15 ] Rules 3.62 and 3.65 of the Rules of Court , AR 124/201 (the “ Rules ”) allow the Court to permit an amendment after pleadings close. [ 16 ] The threshold for allowing an amendment is low: “The classic rule is that an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side, and even that is no obstacle if it is repaired” ( Balm v 3512061 Canada Ltd , 2003 ABCA 98 at para 43 [ Balm ]). [ 17 ] Alberta courts have routinely held that there are four main exceptions to this “classic rule” (see eg Dow Chemical Canada Inc v Nova Chemicals Corp , 2010 ABQB 524 at para 21 ).

In this case, the most relevant exception is that of the “hopeless” amendment: an amendment that does not reveal a cause of action or is “so inconsistent with the record that it could fairly be described as “hopeless”” ( Attila Dogan Construction & Installation Co v AMEC Americas Ltd , 2014 ABCA 74 at para 27 [ Attila ]). An applying party does not have to demonstrate that the amendment will be proven at trial, but some minimal amount of evidence must be put forward to justify the amendment ( Attila at para 26 ).

Given that the overarching threshold for allowing an amendment to be made is low, the threshold for finding that an amendment is hopeless is high ( Kasko (Estate) v Lethbridge Regional Hospital , 2006 ABQB 280 at para 26 ). Application of the Test to Amend Pleadings [ 18 ] The Plaintiffs submit that the Defendants owed Mr. Birss a fiduciary duty in light of their student-teacher relationship and differing levels of taekwon-do skills.

This amendment is significant, the Plaintiffs argue, because the waivers only discuss “breach of any statutory duty or other duty” and such vague wording cannot shelter the Defendants from breaches of fiduciary duty. [ 19 ] The Defendants submit that the facts of this case do not fit into any of the traditional fiduciary relationships, and that the elements of an ad hoc fiduciary relationship are not met.

Therefore, this cause of action cannot be made out and the amendment should not be granted. [ 20 ] At this stage, it is unnecessary to determine whether the Plaintiffs would be successful at trial on this cause of action; what must be determined is whether there is some evidence that can justify the amendment ( Balm at para 29 ). There has been a broadening

recognition of fiduciary duties owed beyond the confines of traditional fiduciary relationship. The relationship between Mr. Birss and theDefendants was predicated on a student-teacher relationship and there may be elevated duties owed in context of heightened risk, such astaekwon-do practice. With the “classic rule” in mind, the amendment to the Statement of Claim is granted. Application for

Summary Dismissal [21] The Defendants seek

summary dismissal of the entirety of the Plaintiffs’ action on the grounds that the proposed amendmentlacks merit, and that implied consent and the waiver/release of liability provisions contained in the November Agreement providecomplete defences to the Plaintiffs’ claims of battery and negligence. The Test for

Summary Dismissal [22] Rule 7.3 of the Rules provide that: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. … [23] The Defendants rely upon Rule 7.3(1)(

b) in seeking

summary dismissal. [24] In 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 at paras 9-10, 593 AR 391, the Court of Appeal described the test forsummary dismissal this way: … From the process perspective,

summary judgment can be given if a disposition that is fair and just to both parties can be made on theexisting record by using that alternative method for adjudication: Combined Air Mechanical Services Inc v Flesch, 2014 SCC 8, [2014]1 S.C.R. 126 (S.C.C.) [hereinafter Hryniak v Mauldin]. From the substantive perspective,

summary judgment can be granted if, in light of what that fair and just process reveals, there is nomerit to the claim. No “merit” means that, even assuming the accuracy of the position of the non-moving party as to any material andpotentially decisive matters — matters which would usually require ordinary forensic testing through a trial procedure with viva voceevidence and which could not be resolved through the fair and just alternative — the non-moving party's position viewed in the roundhas no merit in law or in fact. [25] The burden of proof rests with the moving party, in this case, the Defendants.

The non-moving party is not obligated toprovide evidence; however, if the moving party discharges its evidentiary burden based on a balance of probabilities, the burden shifts tothe non-moving party to show that there is arguable merit to its claim (Can v Calgary Police Service¸ 2014 ABCA 322 at para 80, citingBeier v Proper Cat Construction Ltd, 2013 ABQB 351 at paras 66-67). [26] The task before this Court is not to make definitive findings on the issues, but to determine whether there is merit to the action(that is, whether a trial is warranted to appropriately resolve the action) (Pelechytik v Snow Valley Ski Club, 2005 ABQB 532 at para 9citing Western Canadian Place Ltd v Con-Force Products Ltd, (Alta QB)).

Is There Merit to the Allegations of Breach of Fiduciary Duty? [27] Historically, fiduciary obligations have been confined to discrete categories of relationships that, “because of their inherentpurpose or their presumed factual or legal incidents, the courts will impose a fiduciary obligation on one party”.

Examples of suchrelationships include directors and corporations, lawyers and clients, and trustees and beneficiaries (LAC Minerals v InternationalCorona Resources, (SCC), [1989] 2 SCR 574 at 646, 61 DLR (4th) 14 [LAC Minerals]). [28] More recently, the law has expanded to allow for the recognition of ad hoc fiduciary relationships. Characteristics of theserelationships were set out by Wilson J., dissenting, in Frame v Smith, (SCC), [1987] 2 SCR 99 at 136, 42 DLR (4th) 81[Frame], and adopted in subsequent Supreme Court decisions (see eg LAC Minerals at 599): 1.

The fiduciary has scope for the exercise of some discretion or power; 2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and 3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [29] The Defendants submit that the facts of this case do not meet the Frame test. Although the Defendant Clubs are able toexercise some discretion in scheduling classes and organizing testing, this does not in any real way affect students’ legal or practicalinterests. Similarly, instructors like Mr.

Pagnotta are not in a position to affect students’ interests. Furthermore, Mr. Pagnotta’s onlyinteraction with Mr. Birss was as a sparring partner, and not as an instructor or employee, and Mr. Birss was not “peculiarly vulnerable”because he was an adult of sound mind who freely chose to participate.

[30] The Plaintiffs argue that a fiduciary duty applies because of the student-teacher relationship and relative levels of taekwon-doexperience between Mr. Birss and the Defendants. Drawing on cases such as Smith v Horizon Aero Sports Ltd, 130 DLR (3d) 91, (BCSC), the Plaintiffs urge the Court to place less weight on Mr. Birss’ age and more weight on his taekwon-doinexperience and the possible risks he faced. [31] Such factors may be more applicable in determining whether a duty of care was owed by the Defendants to Mr. Birss, ratherthan a fiduciary duty.

Although the law has gradually allowed for more recognition of ad hoc fiduciary obligations, this does not meanthat courts have been given carte blanche to add the fiduciary label to any relationship involving some imbalance. However, there is apaucity of Canadian case law discussing the possibility of fiduciary obligations arising in sporting or recreational activity contexts. Does the Defence of Implied Consent Warrant the

Summary Dismissal of thePlaintiffs’ Claims of Battery and Negligence? [32] Given that the defence of implied consent acts as a complete bar to recovery, courts have elected only to apply it “in situationswhere the plaintiff has assumed both the physical and the legal risk involved in the activity” (Crocker v Sundance Northwest ResortsLtd, (SCC), [1988] 1 SCR 1186 at 1202 [Crocker]).

In Dube v Labar, (SCC), [1986] 1 SCR 649 at 658the Supreme Court explained how narrowly this defence is to be applied: Thus, [implied consent] will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certainrisk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part.

Theacceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such asthe present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed noresponsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to. [33] It is generally accepted that by agreeing to participate in an activity, the participant is accepting or consenting to the inherentrisks of the activity.

However, in Levita v Crew, 2015 ONSC 5316 ([Levita], Firestone J. surveyed a number of cases and found thatsome conduct is so far removed from the inherent risk of an activity that it cannot be within the scope of implied consent. Such conductincludes (Levita at paras 88-91): • “unprovoked battery unrelated to the advancement of the game” or “a deliberate unilateral attack” (from Leonard v Dunn, (Ont Sup Ct J) [Leonard]); • intentionally injurious conduct (from St.

Laurent v Bartley, (MB KB), [1998] 8 WWR 373 ); • negligence of other players (from Kempf v Nguyen, 2013 ONSC 1977); and • reckless conduct (Nichols v Sibbick, (Ont Sup Ct J)). [34] In determining whether the defence of implied consent is so likely to be successful on the facts of this case that it warrants thesummary dismissal of the Plaintiffs’ claims of battery and negligence, I must consider whether the risks that arose were risks that wereclear to Mr. Birss, and thereby accepted by him, and whether the conduct that occurred was within the scope of implied consent. [35] The Defendants submit that Mr.

Birss was aware of the inherent risks of taekwon-do, including the specific activities thatwould be asked of him at the black belt test. By agreeing to participate in taekwon-do lessons and the black belt test, Mr. Birss providedhis implied consent and assumed all responsibility for the associated risks. The Defendants rely on the following facts to support theirposition: • Mr. Birss participated in taekwon-do for four years prior to the black belt test; • Mr. Birss observed a black belt test prior to his own black belt test; • Mr.

Birss knew that he would have to participate in three sparring matches in his black belt test; and • Mr. Birss was aware that head contact might take place in his black belt test. [36] Further, the Defendants argue that the kinds of conduct falling outside the scope of implied consent outlined in Levita are notapplicable in this case because the contact between Mr. Birss and Mr. Pagnotta took place during the sparring match, in which Mr. Birssfreely participated. The Defendants suggest that the situation may be different if Mr. Pagnotta had struck Mr.

Birss after a refereeintervention, for example. [37] Although Mrs. Birss confirmed that her husband observed a black belt test prior to participating in his own, it is not clear whatexactly he observed. When he observed a sparring match, did he see the participants exchange strikes to the head? If he did, were thestrikes of similar force to those he received in his sparring match? No further evidence was provided to establish what Mr. Birss observedprior to his own black belt test, so it is impossible to determine what risks Mr.

Birss was aware of and consenting to by participating. [38] Second, there was no indication that Mr. Birss was aware that he might have to spar against a taekwon-do instructor with athird degree black belt. Evidence somewhat related to this point came from Mr. Pagnotta’s questioning in which he stated that over theten years he had been involved in such events he had never seen a substitution of sparring partners made in a black belt test before. Noevidence was provided as to why Mr. Gaudet removed the original third sparring opponent and replaced him with Mr. Pagnotta. It istherefore not clear if Mr.

Birss was aware of the possibility of having to face off against an instructor, or if this was indeed such standardpractice that it would be an inherent risk of the activity. [39] Third, the Plaintiffs have tendered conflicting evidence on the topic of head contact. Lisa Gaudet (“Ms. Gaudet”) acted as

head instructor at the Authentic Defendant Club. She stated at her questioning that contact was always limited to light touching and fullblows were never permitted, even in black belt testing. Terrence Wisniewski (“Mr. Wisniewski”), the head instructor at the Tien LungDefendant Club, disagreed with Ms. Gaudet and stated that it was only at the lower levels that contact was restricted to light touching Assuch, it is not possible to determine whether Mr. Pagnotta’s conduct during the sparring match was a known risk that Mr. Birss wassigning on to; or whether Mr.

Pagnotta’s conduct fell into the categories identified in Levita as falling outside the scope of impliedconsent. [40] Lastly, there is conflicting evidence concerning Mr. Pagnotta’s supposed intention. Mrs. Birss and Garrett Plester, Mr. Birss’nephew, have sworn that they both overheard Mr. Pagnotta on the morning of March 19, 2011 making comments to the effect that hewanted to aggressively fight a black belt candidate. Mr. Pagnotta denies that he made such statements. It is not possible to resolve thisconflicting evidence. Mr.

Pagnotta’s intention is certainly a relevant issue to determining the availability of the defence of impliedconsent. Did the Defendants Take Reasonable Steps to Bring the Terms of the Waivers toMr. Birss’ Attention? [41] The Defendants also rely on the defence of waiver of liability for

summary dismissal. [42] It is first necessary to determine whether Mr. Birss was bound by the terms of the waivers he signed (see eg Van Hooydonk vJonker, 2009 ABQB 8 at para 36, 466 AR 196 [Van Hooydonk]).

In Karroll v Silver Star Mountain Resorts Ltd, (BCSC) at para 17 [Karroll], McLachlin CJSC (as she then was) held that “[w]here a party has reason to believe that the signing party ismistaken as to a term, then the signing party cannot reasonably have been taken to have consented to that term, with the result that thesignature which purportedly binds him to is it not his consensual act.” In situations where a reasonable person should have known thatthe signing party was mistaken, the party tendering the document is required to take reasonable steps to bring the terms to the signingparty’s attention (Karroll at para 16). [43] The Defendants submit that the November Agreement is binding on Mr.

Birss. Mr. Birss worked as a general sales manager ata car dealership and was therefore familiar with contracts. The waiver of liability terms were not hidden amongst the membershipdocument, but featured identifying features such as bolded font. Mrs. Birss also confirmed that she was present at the time Mr. Birsssigned the November Agreement, and she understood that the waiver constituted an acknowledgement of risks for which the Defendantscould not be held responsible. Furthermore, Mr. Gaudet was also present at the signing and so Mr.

Birss had full opportunity to makeinquires as to the extent of the waiver. [44] The Plaintiffs, on the other hand, assert that the Defendants were required to, and failed to, bring the applicable waiver ofliability terms to Mr. Birss’ attention.

The September Agreement states: “I understand and agree that the school will not be held liablefor injuries, damages, etc. not caused by or resulting from the negligence of the owners, operators, employees or persons in charge ofsuch establishment.” In contrast, the November Agreement expressly provides for the waiver of claims arising out of “negligence, grossnegligence, breach of contract and breach of any statutory duty or other duty”.

The November Agreement contains a much broaderwaiver of liability, and the Defendants should have taken reasonable steps to specifically bring this difference to the attention ofMr. Birss. [45] Additionally, the Plaintiffs assert that the Defendants were obliged to bring to Mr. Birss’ attention the specific risk of headcontact. At their questioning, Ms. Gaudet and Mr. Wisniewski appear to agree that head contact is not permitted at the introductorylevels. Therefore, if head contact is permitted at later points, the Defendants should have explicitly brought this to Mr.

Birss’ attention. [46] In Arndt v Ruskin Slo Pitch Assn, 2011 BCSC 1530 at para 27, Humphries J. reviewed a number of cases concerning thebinding nature of waivers in sporting and recreation contexts.

This survey of case law illustrated that courts will typically find thatplaintiffs are bound to the waivers they signed, so long as the waiver was not “hidden” in a document such as an entry form or paymentplan (see eg Crocker, Parker v Ingalls, 2006 BCSC 942, 2006). [47] With respect to the facts of this case, the waiver of liability terms in both the September and November Agreements wereplain and clear in the documents proffered to Mr. Birss. There is nothing in the evidence to suggest that Mr. Birss was pressured to signanything, and indeed Mr.

Gaudet was present at the time of signing the November Agreement to answer any questions. In my view thewaivers were binding upon Mr. Birss. Does the Alleged Battery and Negligence Fall Within the Scope of the Waivers? [48] Both parties agree that it is also necessary to consider whether the terms of the waivers apply to the circumstances giving riseto the claim (see eg Van Hooydonk at paras 37-44). [49] The Defendants submit that the November Agreement applies to the Plaintiffs’ claims of battery and negligence.

The broadwording of the November Agreement extends to claims arising out of students’ “presence at or participation in Taekwon-Do Activitiesdue to any cause whatsoever, including negligence, gross negligence, breach of contract and breach of any statutory duty or other duty,on the part of the Taekwon-Do Entities or otherwise”. “Taekwon-Do Activities” are defined as “including Taekwon-Do instruction,observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition”.

Blackbelt testing would appear to logically fall within the terms of the waiver. [50] The Plaintiffs assert that while the November Agreement provides for a waiver of liability with respect to negligence andgross negligence, it does not apply to wilful or wanton misconduct, or to battery. In support of this proposition, they cite the case ofLeonard, in which the defendant hockey player punched the plaintiff hockey player in the face after the referee blew the whistle to stopplay. The waiver in Leonard named negligence but the Ontario Superior Court of Justice found that this was not enough to offer

protection from a battery claim at para 16: However, if the purported intent of the document is that a signatory by signing the document waives and releases a releasee from injury caused by a battery, the document could and ought to have been clear and unequivocal in so stating.

A release in these circumstances should be construed contra proferentum and strictly, particularly vis a vis the defendant, whose position is derivative of that of the facility and who arguably has given no consideration. [ 51 ] The Court continued at para 20: However fraught with potential for injury, hockey is nevertheless a sport, a contest of skill and strategy to be carried out in competitive but sportsmanlike manner. It is not a bar room brawl.

When a player signs the game sheet agreeing to the terms of the waiver, he is assuming the risks inherent in playing the game; he is not volunteering to be the recipient of a battery (Emphasis added). [ 52 ] Based on the reasoning in Leonard in light of the evidentiary absences and conflicts noted in the above discussion of implied consent, it is not manifestly clear that the waivers signed by Mr.

Birss would constitute a full defence to the alleged battery Conclusion [ 53 ] In conclusion, given the low threshold for allowing amendments to pleadings, the Plaintiffs’ application to amend their Statement of Claim is allowed. Although the amendment is allowed if this was the only issue before me, without further evidence, it is doubtful it would succeed as a defence to

summary dismissal. Regardless, based on the factual record before me, notably, inter alia , the conflicting evidence on head contact and Mr. Pagnotta’s alleged statements going to intention together with Mr. Pagnotta’s unexplained substitution and demeanor, I am of the view that a fair and just determination cannot be made. Accordingly, the Defendants’ application for

summary dismissal of the action is dismissed. If the parties cannot agree on costs they may approach me within 60 days of the date of these reasons. In that regard I observe, however, that although the Plaintiffs have succeeded in both the amendment application and the resisting of

summary dismissal, consequential costs associated with additional questioning arising from the amendment should be borne by the Plaintiffs. Heard on the 5 th day of June, 2017. Dated at the City of Edmonton, Alberta this 25 th day of August, 2017. L.A. Smart M.C.Q.B.A. Appearances: Daniel Cavanagh Weir Bowen LLP for the Plaintiffs Daniel C.P. Stachnik, Q.C. and Robyn Meara Miller Thomson LLP for the Defendants _______________________________________________________

Corrigendum of the Reasons for Decision of L.A. Smart, Master, Court of Queen's Bench of Alberta _______________________________________________________ The Appearances should be Daniel Cavanagh for the Plaintiffs and Daniel C P Stachnik, QC and Robyn Meara for the Defendants