Ehizode v. Ivanhoe Cambridge II Inc. et al. Date:, 2018 BCPC 17

Citation: Ehizode v. Ivanhoe Cambridge II Inc. et al. Date: 20180131 2018 BCPC 17 File No: 1759381 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOE EHIZODE CLAIMANT AND: IVANHOE CAMBRIDGE II INC. / IVANHOE CAMBRIDGE II INC. DEFENDANTS AND: WEST COAST FITNESS FIXATIONS INC. THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing on his own behalf: J. Ehizode Counsel for the Defendants: K. Lowe

H. Chun, A/S Counsel for the Third Party : C.K. Cairns Place of Hearing: Vancouver , B.C. Date of Hearing: January 24, 2018 Date of Judgment: January 31, 2018 INTRODUCTION [ 1 ] This is an application by the Defendant Ivanhoe Cambridge II Inc. / Ivanhoe Cambridge II Inc. (“ Ivanhoe ”) for the following orders: 1. To dismiss the Notice of Claim filed by Mr. Ehizode pursuant to Rule 16(6)(

o) of the Small Claims Rules . 2. That Mr. Ehizode pay Ivanhoe’s filing fees and service fees. 3. That Mr. Ehizode pay Ivanhoe’s’ reasonable legal expenses. [ 2 ] This application was set down pursuant to the order of The Honourable Judge MacLean made December 18, 2017. The power to dismiss a claim is normally reserved for a judge at a settlement conference but a number of decisions of this court have confirmed that this power can be exercised outside of a settlement conference: see Lura v. Jazz Forest Products

(2004) Ltd ., 2014 BCPC 14 and Chen v Melville and Scott , 2014 BCPC 380 . [ 3 ] An application to dismiss a claim has occurred in a number of situations, one of which is the

interpretation of a contract: Lura v. Jazz Forest Products, supra , at paragraph 12(e). [ 4 ] Ivanhoe seeks to dismiss the claim on two bases: 1. Mr. Ehizode signed a document that releases any claims against Ivanhoe in relation to the use of an exercise room. 2. The Occupiers Liability Act

section 5 says that if an independent contractor is liable for the damage, the occupier (being Ivanhoe) is not liable. Ivanhoe contracted with West Coast Fitness Fixations Inc. (“ West Coast ”) to maintain fitness equipment and say that if there was any negligence in relation to the equipment, it was West Coast’s responsibility. As such, Ivanhoe issued a Third Party Notice against West Coast. BACKGROUND [ 5 ] On April 15, 2016, Mr. Ehizode signed a document called “Fitness Centre Release Form - New Member” (the “ Release ”). [ 6 ] The document indicates that Mr.

Ehizode will pay $15.75 a month in exchange for “a license to use, for their intended purposes, the exercise equipment, shower and changing room facilities, all as located in the Fitness Centre (the “Fitness Centre”) situated on the fourth floor, Metrotower II on the terms and conditions herein set forth (the “License”).” [ 7 ] Clause 5 of the Release reads as follows: I acknowledge that I am aware of the risk, dangers and hazards to myself and to my property, by accident, injury, illness, loss, damage, death or otherwise as a result of the use of the Fitness Centre and agree that I am voluntarily and completely at my own risk.

For good and valuable consideration, the receipt of which is hereby confirmed I, for myself and my heirs, executors, administrators, successors and assigns, hereby release, waive and forever discharge Ivanhoe Cambridge Inc., Ivanhoe Cambridge I Inc., Ivanhoe Cambridge II Inc., Metrotower Office Complex and their respective officers, directors, agents, employees, workers, officials, servants, contractors, representatives, successors and assigns (hereinafter referred to as the “Releasees”) of and from all claims, demands, damages, costs, expenses, actions and causes of action whether in law or in equity, in respect of death, accident, injury, illness, loss or damage to myself or my property howsoever caused or arising directly or indirectly as a result of or in any way connected with this License in my use of the Fitness Centre, notwithstanding that the same may be contributed to or occasioned by the negligence of the Releasees.

I further undertake to hold and save harmless and agree to indemnify the Releasees from and against any and all liability incurred by it arising directly or indirectly as a result of or in any way connected with this License. [ 8 ] While Ivanhoe and West Coast relied upon affidavits, I allowed Mr. Ehizode to simply explain his case to me as permitted by Rule 10 of the Small Claims Court Rules in light of the fact that Mr. Ehizode was representing himself in this matter. [ 9 ] Mr. Ehizode explained that the Release form was emailed to him.

When he received it, he phoned the Fitness Centre to ask about the Release and was told that he had to sign the Release as a condition of membership. Mr. Ehizode read the Release and said he thought it only applied if he misused the equipment. Mr. Ehizode said he was never told that it would be his responsibility for any injury if one of the exercise machines did not function properly. It appears however that Mr. Ehizode never made any inquiries about what the Release covered. [ 10 ] Mr.

Ehizode signed the Release underneath a blurb written in capital letters and bold print which stated: I HAVE READ AND UNDERSTOOD THE ABOVE BEFORE SIGNING

[11] Ivanhoe did not provide any evidence of the circumstances surrounding the execution of the Release. [12] On July 5, 2016 Mr. Ehizode was using a piece of exercise equipment in the Fitness Centre. Mr. Ehizode says that a power barbeing used by him snapped and fell onto his head causing injuries and resulting losses. [13] A description of the exercise equipment can be found in the owner’s manual for this machine found at Exhibit A to the affidavitof Emily Nguyen sworn December 12, 2017.

This affidavit was provided to me at the hearing by counsel West Coast but it has not beenfiled with the court. [14] I direct counsel for West Coast to file the original of Ms. Nguyen’s affidavit with the court. [15] Based on the owner’s manual, I understand that Mr. Ehizode was using an exercise machine called a “mid-row/pulldown”. Theuser of this machine is seated facing the machine and pulls down on a metal bar, called an aluminum "lat bar”, which is attached to anoverhead cable.

That cable runs up to a pulley system and then back down to a series of rectangular weight plates which provide theresistance for the exercise. I understand that the cable attached to the aluminum lat bar snapped while Mr. Ehizode was pulling down onthe bar, causing it to strike his head. [16] As a result of this incident, Mr. Ehizode sought compensation for injuries allegedly resulting from this incident by filing aNotice of Claim against Ivanhoe on August 25, 2017. [17] In turn Ivanhoe issued a Third Party Notice against West Coast, alleging that if Ivanhoe is liable to Mr.

Ehizode, then WestCoast should be paying the claim. ANALYSIS [18] Ivanhoe argues that the Release protects it from any claims. West Coast joins in that submission. West Coast is only involvedas a Third Party and so if the claim against Ivanhoe is dismissed, the Third Party claim against West Coast will also end. As analternative, West Coast says that the Release applies to them as well. [19] It is clear that the Release was a term of a contract between Mr. Ehizode and Ivanhoe. Mr.

Ehizode agreed to pay a monthly feeand to provide the executed Release in exchange for the right to use the Fitness Centre. [20] A number of court cases confirm that a party may contract out of the right to claim compensation from another party. Thosecases include the following: 1. Blomberg v. Blackcomb Skiing Enterprises Ltd., , which was in relation to skiing at Blackcomb Mountain 2. Clarke v. Action Driving School Ltd., (BC SC), which was in relation to motorcycle driving lessons. 3. Dixon v. B.C. Snowmobile Federation, 2003 BCCA 174, which was in relation to the use of a snowmobile. 4. Karroll v.

Silver Star Mountain Resorts, (BC SC), which was in relation to a downhill skiing competition. [21] As discussed in the Clarke decision at paragraph 4, there are three issues I need to address: 1. Were the terms of the Release sufficiently brought to the claimant's attention? 2. Does the Release, properly construed, exclude liability for negligence? 3. Is the Release unconscionable? Were the terms of the Release sufficiently brought to the Claimant’s attention? [22] Mr. Ehizode confirmed that he received the Release and contacted the Fitness Centre to ask about it, he read the Release andthen he signed it.

He said he knew he was releasing certain rights although he thought to himself it only related to misuse of theequipment. [23] I am satisfied that the terms of the Release were brought to Mr. Ehizode’s attention. Mr. Ehizode received the Release by emailand he called the Fitness Centre to inquire about it. He was told that the Release was required as a condition of his membership. Mr. Ehizode had the opportunity to ask further questions about the Release but did not do so. He relied only upon himself for hisunderstanding of the effect of the Release.

Does the Release, properly construed, exclude liability for negligence? [24] The Release makes specific reference to: . . . the risk, dangers and hazards to myself and to my property, by accident, injury, illness, loss, damage, death or otherwise as a result ofthe use of the Fitness Centre and agree that I am voluntarily and completely at my own risk. [25] It goes on to state that Mr.

Ehizode releases, waives and forever discharges Ivanhoe from: . . . all claims, demands, damages, costs, expenses, actions and causes of action whether in law or in equity, in respect of death, accident,injury, illness, loss or damage to myself or my property howsoever caused or arising directly or indirectly as a result of or in any wayconnected with this License in my use of the Fitness Centre, notwithstanding that the same may be contributed to or occasioned by thenegligence of the Releasees.

[26] The wording of the Release is clear in that it applies to any injury to Mr. Ehizode caused, whether directly or indirectly, as aresult of or in any way connected to the use of the Fitness Centre. The Release applies regardless of whether or not there was negligenceon the part of Ivanhoe or the other named Releasees. [27] I am satisfied that the wording of the Release applies to the circumstances that are the basis for Mr. Ehizode’s claim againstIvanhoe.

Is the Release unconscionable? [28] A release may be unconscionable if it was obtained in circumstances where an unfair advantage was taken or where there wasan inequality of bargaining power arising out of the ignorance, need or distress of one party. Any unfairness must be substantial: seeClarke v. Action Driving School Ltd. at paragraph 13, which is a case I referred to earlier, and which cited the decision Harry v.Kreutziger (1978), (BC CA), 9 BCLR 166, which in turn referred to Morrison v.

Coast Finance Ltd., (1965), (BC CA), 54 W.W.R. 257. [29] There is no indication that the Release was signed in circumstances where it would be unconscionable to enforce. This was asimple contract for the use of an exercise room. I see no basis to conclude that the circumstances surrounding the execution of theRelease were unconscionable. [30] I will also address some further considerations raised in the decision Karroll v. Silver Star Mountain Resorts, another casewhich I referred to earlier.

In Karroll, the court was dealing with a situation where the Plaintiff claimed to not have had a reasonableopportunity to read a release of claims document before signing it. The court stated at paragraph 16: The key, in my opinion, is recognition of the limited applicability of the rule that a party proffering for signature an exclusion of liabilitymust take reasonable steps to bring it to the other party's attention. It is not a general principle of contract law establishing requirementswhich must be met in each case.

Rather, it is a limited principle, applicable only in special circumstances. [31] The court went on to state at paragraph 22 that there is no general requirement that the party tendering a document takereasonable steps to apprise the party signing of the terms of the document or to ensure that he reads and understands the terms. Applyingthat decision to the case before me, Ivanhoe had no general duty to tell Mr. Ehizode of the terms of the Release or to ensure that he readand understood it. [32] The court in Karroll said there are exceptions to this general rule where a party has not read the terms of a release.

Thoseexceptions do not apply here though because Mr. Ehizode confirmed that he read the terms of the Release. [33] On the facts before me, there is no indication that Ivanhoe knew or ought to have known that Mr. Ehizode was not consenting tosigning the Release. There is no evidence that Ivanhoe misrepresented to Mr. Ehizode the nature or character of the Release. Nor isthere any evidence that Ivanhoe knew or ought to have known that Mr. Ehizode was mistaken about the terms of the Release. [34] Ivanhoe only advised Mr. Ehizode that the Release was required as a condition of membership in the Fitness Centre. Mr.

Ehizode did not ask questions about the actual terms of the Release or engage in any discussion with Ivanhoe that should have putIvanhoe on notice that Mr. Ehizode was mistaken about the terms of the Release. [35] In light of the above, I conclude that the Release is effective in preventing Mr. Ehizode from pursuing his claim againstIvanhoe. As a result, I dismiss the claim against the Defendant. As that claim has been dismissed, it follows that the Third Party claimagainst West Coast is also dismissed. [36] Pursuant to Rule 20(2) of the Small Claims Court Rules, Mr.

Ehizode will pay to Ivanhoe its filing fee of $50, the filing feefor the Third Party Notice of $25, and the service fees. Mr. Ehizode will also have to pay West Coast $25 for the filing fee for the Replyto the Third Party Notice, as well as their service fees. I ask the Registry to determine the total amount of these fees.

Claim for Reasonable Legal Expenses [37] Ivanhoe claims its reasonable legal expenses based on wording in the Release that stated: I further undertake to hold and save harmless and agree to indemnify the Releasees from and against any and all liability incurred by itarising directly or indirectly as a result of or in any way connected with this License. [38] Section 19(4) of the Small Claims Court Rules states:

(4) The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees toanother party to the proceeding. [39] The legislation is clear then that the Provincial Court cannot make an order for payment of legal fees. However, a distinctionmay be drawn between a claim for legal fees which is covered by section 19(4) and a claim to enforce a contractual agreement to paylegal fees. [40] Ivanhoe referred me to the decision Shelley Morris Business Services v. 890 West Pender Ltd., 2003 BCPC 267.

Atparagraph 19 of the decision, The Honourable Judge Romilly considered the terms of a lease that read as follows: The Tenant shall indemnify and save harmless the Landlord and its directors, officers, employees, agents, successors and assigns, fromany and all liabilities, actions, damages, claims, losses, costs and expenses whatsoever (including without limitation, the full amount ofall legal fees, costs, charges and expenses and the costs of removal treatment, storage and disposal of Contaminants and remediation,which may be paid by, incurred by or asserted against the Landlord or its directors, officers, employees, agents, successors or assigns

under, or the escape, seepage, leakage, spillage, discharge, emission or other release of any Contaminants from, any part of the leasedpremises into the environment including without limitation into or upon any real or personal property or the atmosphere. [EmphasisAdded] [41] Based on the specific wording of the Lease, Judge Romilly made an order for payment of legal fees owed pursuant to the leaseagreement. [42] I refer to the decision International Knitwear Architects Inc. v.

Kabob Investments Ltd., (BC CA),where the court stated at paragraph 17: In my opinion, s. 19(4) of the Small Claims Act does not debar a litigant in that court from recovering an amount due under a contractualterm relating to costs and expenses. Such a claim is in substance a claim in debt. But even if it does, the provisions of that Act areirrelevant in this Court. [43] The decision Wetterstrom et al. v. Craig Management Enterprises Ltd., 2009 BCPC 165 commented on theInternational Knitwear decision, stating: [12] There is some suggestion in the obiter of Southin JA in International Knitwear Architects Inc. v.

Kabob Investments Ltd. that Ican award legal fees in a small claim proceeding so long as it is not solicitor client costs. Such costs should not be awarded lightly but incircumstances clearly warranting such an award. If the legislature wished the Provincial Court to award costs to successful litigants, thelegislation could be amended to reflect that desire. It may well be that, with the increases in the jurisdiction of this court, it is anappropriate time to review whether costs should be available to litigants.

However, that is not for this court to determine, but forlegislature. [44] The last case I will refer to on this issue is Machray v. Simpson, 2011 BCPC 309 , where the court stated: [27] There is also the issue of whether or not this court has the power to order one party to pay another party’s legal fees. Section 19(4)of the Small Claims Act reads as follows:

(4) The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees toanother party to the proceeding. [28] It has been held in this court that the intent of this

section is not restricted only to costs in the action before the court. The mandateof the Small Claims Court is to resolve matters in an inexpensive fashion. Awarding solicitor-client costs is not consistent with thatmandate. The Small Claims Court does not have the authority to award those costs either directly or indirectly. This court has heldaccordingly in a number of decisions including Canadian Imperial Bank of Commerce v. Washburn [1993] BCJ No. 2706; Lago v.Zimmerman [1998] BCJ No. 3269; Faulkner v. Sellars (1998) 9 C.C.L.I. (3d) 247; Gord Hill Log Homes Ltd. v.

Cancedar Log Homes(B.C.) Ltd. 2006 BCPC 480 ; McGillion v. Barnett 2007 BCPC 10 . [29] The only exceptions to this principle may be in the case of a lawyer who sues for payment of legal fees that are owing to him orher, or where a claimant is suing on a contract in which the defendant expressly agreed to pay such costs. In International KnitwearArchitects Inc. v.

Kabob Investments Ltd. (1997) (BC CA), 40 B.C.L.R. (3d) 70, Madam Justice Southin of theBritish Columbia Court of Appeal wrote at paragraph 7: “In my opinion, s. 19(4) of the Small Claims Act does not debar a litigant in that court from recovering an amount due under a contractualterm relating to costs and expenses. Such a claim is in substance a claim in debt.” [45] In the case before me, the wording of the Release does not specifically refer to legal fees.

Counsel for Ivanhoe argues that thewording is still broad enough to encompass legal fees. [46] The Release refers to “any and all liability incurred by it arising directly or indirectly as a result of or in any way connected withthis License”.

This is a condensed version of a clause referred to by Judge Romilly in the Shelley Morris decision, found at paragraph15, which stated: . . . the Tenant shall indemnify and save harmless the Landlord against any and all claims, actions, damages, losses, liabilities andexpenses in connection with loss of life, personal injury or damage to property arising from or out of the occupancy or use by the Tenantof the Leased Premises or any other part of the Development [47] Judge Romilly held at paragraph 16: I am of the opinion that this

section is a traditional

section set out in leases to protect the Landlord against third party actions, and doesnot refer to defaults occurring as a result of the non-payment of rent. [48] In my view, the reference to “any and all liability” found in the Release refers to legal liability for claims such as third partyactions against Ivanhoe, and not to the reimbursement of legal fees.

This document was drafted by Ivanhoe and if it wanted to extend theterms to include an indemnity for legal fees it should have used specific wording to that effect. [49] Assuming I do have a power to award legal fees based on a contractual agreement to pay such fees, I find that the wording ofthe Release is not specific enough to permit a contractual claim for legal fees. This claim is dismissed.

SUMMARY [50] Counsel for West Coast is directed to file the original of Ms. Nguyen’s affidavit with the court. [51] I order as follows:

1. The Notice of Claim of Joe Ehizode as against Ivanhoe Cambridge II Inc. / Ivanhoe Cambridge II Inc. is dismissed. 2. The Third Party Notice of Ivanhoe Cambridge II Inc. / Ivanhoe Cambridge II Inc. against West Coast Fitness Fixations Inc. is dismissed. 3. Joe Ehizode say pay to Ivanhoe Cambridge II Inc. / Ivanhoe Cambridge II Inc. the sum of $75 for its filing fees for the Reply and Third Party Notice, and also fees for service of the Reply and the Third Party Notice as determined by the Registry. 4.

Joe Ehizode say pay to West Coast Fitness Fixations Inc. the sum of $25 for the filing fee in relation to the Reply to the Third Party Notice and its service fees for the Reply as determined by the Registry. _________________________ The Honourable W. Lee Provincial Court Judge