Hindley v Rocky View Schools, 2023 ABKB 95

Court of King’s Bench of Alberta Citation: Hindley v Rocky View Schools, 2023 ABKB 95 Date: 20230221 Docket: 1801 03339 Registry: Calgary Between: Emma Hindley Respondent/Plaintiff - and - Rocky View Schools Appellant/Defendant - and - Cochrane Curling Club Society Respondent/Third Party _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________

Introduction [ 1 ] This appeal raises questions concerning the standard of care required of school authorities charged with supervising students and of facility operators renting their premises to schools. Master Mason, as she then was, declined to summarily dismiss a claim against Rocky View Schools (“RVS”) that asserted that helmets should have been provided to students on a high school curling team and that a head injury sustained by a student could have been mitigated or prevented by the use of a helmet.

In the same decision, Master Mason summarily dismissed RVS’s third party claim seeking contribution and indemnity against the Cochrane Curling Club (“CCC”) which rented the curling facility to RVS. [ 2 ] An appeal from a Master, now an Applications Judge, is heard de novo : Agrium v Orbis Engineering Field Services , 2022 ABCA 266 at para 30 . Background and Decision of Master Mason [ 3 ] The Plaintiff, Ms. Hindley, was a student at Bow Valley High School (“BVHS”) in Cochrane in 2015. While trying out for the BVHS curling team at the CCC, she slipped on the ice and fell and hit her head, suffering a concussion.

Mr. Hindley claims that RVS, the school board responsible for BVHS, did not meet the required standard of care because it failed to take appropriate safety precautions, including requiring students to wear helmets while on the ice. As a result of the concussion, Ms. Hindley claims that she has suffered serious post-concussion symptoms that have affected her ability to participate in school and have affected her quality of life. [ 4 ] RVS and CCC brought applications for

summary dismissal before Master Mason. RVS asserted that there was no established practice of wearing helmets while curling in 2015 so it is obvious that RVS met the required standard of care. The CCC asserted that it only rented the facility to BVHS, it had no duty to supervise the activity or to provide safety equipment. Master Mason issued an unpublished endorsement dismissing the RVS application and allowing the CCC application. She dismissed the RVS application on the basis that “[c]onforming with a recognized or general practice is not always a complete answer to a negligence claim”: Endorsement at para 20.

She granted the CCC application on the basis that “[t]here is no evidence that its conduct or the state of its premises caused or materially contributed to Ms. Hindley’s injuries”: Endorsement at para 36. [ 5 ] RVS’s appeal of Master Mason’s decision not to grant

summary dismissal of Ms. Hindley’s claim turns on the question of the appropriate standard of care to be exercised in respect of an extra-curricular activity – curling – for which there are inherent risks. Is it a genuine issue requiring a trial that the standard of care in November 2015 required students participating in curling as part of a school activity to be provided with helmets? RVS’s appeal of Master Mason’s decision to grant

summary dismissal of the Third Party Claim against CCC turns on the question of whether in November 2015 an operator of a curling facility was obliged under the Occupiers’ Liability Act , RSA 2000, c O-4 to require minors to use helmets while curling or to supply helmets to minors using the curling facility.

Summary Dismissal Standard [ 6 ] A five-member panel of the Court of Appeal set out the approach to

summary disposition applications in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 . Slatter JA, writing for the Court, summarized the “key considerations” at para 47 as follows:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute [emphasis in original]. [ 7 ] Following Weir-Jones , some confusion remained over what was meant by a “genuine issue requiring a trial.” Wakeling and Feehan JJA clarified in Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 at paras 158-161 that the definition of a “genuine issue requiring a trial” to be used in Alberta is that set out by Karakatsanis J in Hryniak v Mauldin , 2014 SCC 7 at para 49 : There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits.

This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 8 ] The direction from the Court of Appeal to Applications Judges and Justices of this Court is to summarily determine cases where it is procedurally fair to do so.

RVS’s Causation Argument [9] RVS submits that the failure to require helmet use did not cause Ms. Hindley to fall. Without causation, RVS cannot beliable in negligence. RVS says that the lack of helmet use is relevant only to the question of damages. RVS, asserts in its written brief: The enquiry into whether the School is liable for the Plaintiff’s fall concerns only whether steps could have been taken to prevent thefall. The liability analysis does not consider which factors existed that may have worsened the consequences of the fall, such as whetherthe Plaintiff was wearing a helmet.

The evidence shows that all reasonable steps were taken to prevent the fall: the Plaintiff received instruction; she was prohibited fromwearing sliders; and she was supervised to ensure she employed safe technique. The Plaintiff still would have fallen had she been wearing a helmet.

The alleged negligent act of failing to provide the Plaintiff a helmetdid not cause her to fall [emphasis in original]. ... the use of a helmet is an enquiry relevant only to the assessment of damages, not liability. [10] RVS submits that this logic dictates that “the Court need only ask: ‘did the School satisfy the requisite standard of care bytaking reasonable steps to prevent the Plaintiff from falling?’” No caselaw was cited to support this argument. [11] The error that RVS makes is that it focuses on the fall and not the injury.

Causation in negligence is concerned with causationof the injury: Clements v Clements, 2012 SCC 32 at para 6. The contributing causes to an injury like Ms. Hindley’s may extend beyondthe triggering event of a fall. For example, in a no-fault automobile accident where a child who is a passenger in a car is injured, an adultdriver responsible for supervising the child may still be liable in negligence for not ensuring that the child was using a seat belt (ie.safety equipment that could have mitigated or prevented the injury).

Justice Major explained in Athey v Leonati, (SCC), [1996] 3 SCR 458 at para 14: It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury.There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring.

To borrow anexample from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is . . . caused not onlyby the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty thebasket and so forth”. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was notenough to create the injury.

There is no basis for a reduction of liability because of the existence of other preconditions: defendantsremain liable for all injuries caused or contributed to by their negligence. [12] The present case is analogous to Myers v Peel County Board of Education, (SCC), [1981] 2 SCR 21 where astudent practicing gymnastics fell off the rings and broke his neck. The school was alleged to be negligent for failing to provideadequate supervision and for failing to use appropriate matting to protect against injuries.

With respect to the latter allegation, McIntyreJ held at 35: “The plaintiff is bound to prove, according to a balance of probabilities, that the failure of the school authorities to providemore adequate matting and insist upon its use contributed to the accident.

On all the evidence before him the trial judge reached theconclusions that such proof had been made and, in my opinion, he was justified in that finding.” The inadequate matting in issue inMyers, just like the absence of a helmet in the present case, did not cause the student to fall and yet it was considered by the SupremeCourt of Canada to have contributed to the causation of the injury. [13] RVS’s causation argument is without merit.

My conclusion on this point of law does not foreclose RVS from adducingevidence at trial showing that, as a matter of fact, use of a helmet would not have mitigated or prevented Ms. Hindley’s injury. Has RVS Established that it Satisfied the Standard of Care? Standard of Care Principles [14] RVS submits that the standard of care is determined by custom or general practice and that it is clear on the evidence beforethe Court that its conduct was consistent with the custom or general practice.

RVS concedes that other issues may be triable, but thoseother issues do not come into play if it met the requisite standard of care. [15] Standard of care is a question of mixed fact and law: Meghji v British Columbia (Ministry of Transportation andHighways), 2014 BCCA 105 at para 44. The Court must determine both the legal standard and the relevant facts. What is required bythe standard of care in any given case is determined contextually.

The parties agree that the prudent parent standard applies but disagreeon what that standard requires in the circumstances of the present case. [16] The plaintiff bears the burden of proving on a balance of probabilities each of the elements of negligence including theapplicable standard of care. Where, however, the defendant relies on a custom or general practice, the onus shifts and the defendant bears the burden of proving the custom or general practice exists: Lewis N. Klar & Cameron S.G. Jeffries, Tort Law, 6th ed, (Toronto:Thomson Reuters, 2017) at 423.

The Prudent Parent Standard [17] The Supreme Court of Canada set out the standard of care required of school authorities in Myers. Justice McIntyre, writingfor the Court, adopted the careful or prudent parent standard that has its roots in nineteenth century England: Williams v Eady (1893), 10

TLR 41 (CA). Justice McIntyre explained at para 14: The standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they areresponsible is that of the careful or prudent parent....

Its application will vary from case to case and will depend upon the number ofstudents being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and trainingwhich the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, thecompetence and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case,may affect the application of the prudent parent standard to the conduct of the school authority in the circumstances [citations omitted]. [18] The Supreme Court of Canada contrasted the prudent parent standard with the reasonableness standard found in many otherareas of negligence law in KLB v British Columbia, 2003 SCC 51 at para 14.

The Court explained that the prudent parent standarddemands a “heightened degree of attentiveness.” [19] Ms. Hindley’s father gave evidence that whenever he supervised his daughter in activities on ice, he required that she wear ahelmet. Though the prudent parent test requires a heightened degree of attentiveness, it remains an objective standard. Whether Mr.Hindley would have required his daughter to wear a helmet is not the question for the Court.

The correct question is whether a prudentparent would have required an adolescent child participating in curling in late 2015 to wear a helmet. [20] The Defendant points to a number of cases where it was held that teachers and school authorities are required only to takereasonable steps to prevent injuries that fall outside the acceptable range of risk of injury inherent in the activity: Jones v BritishColumbia School District No 71, CarswellBC 320; Hamilton v Delta School District No 37, 2010 BCSC 712; Peters v Peel DistrictSchool Board, 2016 ONSC 4788; Thompson v Saanich, 2015 BCSC 1750; Murray v Belleville (City) Board of Education, (ON SC), [1943] 1 DLR 494 (ONSC). [21] The cases identified by the Defendant are consistent with the prudent parent standard articulated by the Supreme Court ofCanada.

The prudent parent standard does not require that children’s activities be risk-free. Bumps, bruises, sprained ankles, and evenbroken bones are sometimes just the price of an active childhood. As set out in Myers, the content of the standard in any given case isdetermined contextually with reference to the nature of the activity, the skill and experience of the participants, the equipment beingused, and other factors.

Customary Practice and the Prudent Parent Standard [22] RVS submits that the content of the prudent parent standard in the present case should be determined by reference to thecustom or general practice that existed within the curling community at the time the injury occurred. Curling Canada, the nationalgoverning body for the sport of curling, adopted a helmet policy only in 2017. The 2017 policy mandated headgear for children twelveand under and specified that parents of children older than twelve be required to sign a waiver if the child participated in curling withouta helmet.

RVS submits that Curling Canada’s lack of a helmet policy in late 2015 is indicative of the prevailing standard of care at therelevant time. RVS further contends that the evidence of the supervising teacher, Ms. Bauer, that over her 35 years of experience incurling she had not known 15-year-old children to be recommended to wear helmets while curling is indicative of standards in the curlingcommunity. [23] The idea that standard of care is determined by custom or industry practice has deep roots.

The Privy Council in McDaniel vVancouver General Hospital, (UK JCPC), [1934] 4 DLR 593 (JCPC) at 597 held: “A defendant charged withnegligence can clear his feet if he shows that he has acted in accord with general and approved practice.” However, the view inMcDaniel that proof that a defendant acted in accordance with a custom is dispositive of the question of reasonable conduct has been“discredited”: Klar & Jeffries at 423. [24] Justice Major in Ryan v Victoria (City), (SCC), [1999] 1 SCR 201 outlined the current approach todetermining standard of care.

He explained at para 14 that in determining standard of care a Court “may look to external indicators ofreasonable conduct, such as custom, industry practice, and statutory or regulatory standards” [emphasis added]. Klar and Jeffries explainat 423 that under the current approach, custom or general practice “is only a relevant factor in deciding what is reasonable, the weight ofwhich varies depending on the circumstances....” [25] Custom plays a lesser role in determining standard of care where the prudent parent standard applies.

This can be seen in thediffering approaches of the Alberta Supreme Court Appellate Division and the Supreme Court of Canada in Dziwenka v Alberta (1970), (AB CA), 16 DLR (3d) 190 rev’d (SCC), [1972] SCR 419. Dziwenka was a case where a deafstudent was injured using a table saw without a guard. Allen JA, writing for the Alberta Supreme Court Appellate Division and citingMcDaniel, held: “Normally, conformity to common practice in any given circumstance is prima facie evidence that the proper standardof care is being taken”: Dziwenka (AB Sup Ct, App Div) at 200.

On further appeal, Laskin J, as he then was, writing for the majority ofthe Supreme Court of Canada, overturned Allen JA, holding at 432-33: “The duty of care owing to a student, especially a handicappedone as in this case, in respect of his personal safety while operating dangerous machinery, is a stricter one than that owed by an employerto an employee working with dangerous machinery.” Laskin J’s reasons show that even in an era when proof that a defendant acted inaccordance with custom was typically dispositive, a different and higher standard applied for the supervision of minors. [26] Outside the specific context of a teacher or other adult standing in place of a parent, where a custom or general practice isestablished, it is open to a plaintiff to demonstrate that the custom or general practice should not be accepted by the court as the standardof care.

The Supreme Court of Canada made this point in Waldick v Malcolm, (SCC), [1991] 2 SCR 456 holding that“the existence of customary practices which are unreasonable in themselves, or which are not otherwise acceptable to courts, in no wayousts the duty of care....” Lowry JA in Murao v Blackcomb Skiing Enterprises Ltd Partnership, 2005 BCCA 43 at para 12 made thesame point at greater length: Where, however, there may be no recognized or general practice, or where any practice that does exist is contended to be woefullyinadequate, a plaintiff is entitled to adduce evidence to establish the standard of care required in any given instance.

It is for the trier of

fact to determine the standard of care having regard for the nature and foreseeability of the risk and the utility of measures by which itcould be minimized.

The standard may be derived from evidence of a general practice that prevailed, or from evidence of what mightreasonably have been done to prevent the injury that gives rise to the cause of action, or from the simple application of common sensewhere the circumstances permit it. [27] A plaintiff is also allowed to attempt to prove a custom or general practice is unsafe and should not be the basis for thestandard of care in circumstances where the prudent parent standard applies.

The Manitoba Court of Appeal in James v River EastSchool Division (1975), (MB CA), 64 DLR (3d) 338 considered a circumstance where an explosion occurred in a highschool chemistry class. The school authority contended that the safety protocols followed in the chemistry class were consistent withpractices in other schools. Accordingly, it was asserted, the school authority met the standard of care. Matas JA, writing for the Court,rejected this submission at 349.

Instead, he upheld the trial judge’s decision to accept expert evidence that rejected the general andaccepted practice as unsafe for use in a high school setting. Evidence [28] The Court in Weir-Jones explained that a defendant moving for

summary dismissal must establish on a balance ofprobabilities that there is no merit to the plaintiff’s claim. In the context of the present application, that requires the Court to determinewhether RVS has proven on a balance of probabilities: (

a) the applicable standard of care; and (

b) that RVS’s conduct was consistentwith the applicable standard of care. Both questions can be reduced to the simple issue of whether the standard of care required helmetuse at the time of the incident. [29] RVS did not adduce any expert evidence as to the prevalence of helmet use by minors for curling in late 2015 or evidence ofthe safety practices of other schools or school boards where students participated in curling. RVS relies on three pieces of evidence asestablishing that it was customary for students to not use helmets while curling. First, RVS relies on the evidence of Ms.

Bauer, thesupervising teacher, who testified that she was not familiar with helmet use by adolescents in curling over her more than thirty years ofexperience. Second, RVS relies on the evidence of the CCC affiant who deposed that CCC does not require adolescents to wear helmetswhile curling. Third, RVS relies on expert evidence adduced on behalf of Ms. Hindley which states that Curling Canada did not adopt ahelmet use policy until 2017. [30] The evidence relied upon by RVS does not establish on a balance of probabilities that it was customary for students not to usehelmets while curling. The evidence of Ms.

Bauer speaks only to her personal experience and is not indicative of a custom or generalpractice in the community. Similarly, the evidence concerning the CCC’s practice is limited to CCC. Both Ms. Bauer’s evidence andthe evidence concerning the CCC’s practice are consistent with the existence of a custom or general practice, but it is insufficient toprove on a balance of probabilities that such a custom or general practice existed. To prove that, RVS should have adduced evidencedemonstrating that the custom or practice is widely accepted and followed.

For example, RVS could have adduced evidence concerningthe following: (

a) guidance or lack of guidance from the governing body for curling in Alberta; (

b) RVS safety policies that apply toextracurricular activities, including curling; (

c) policies and practices of other schools and school boards where students participate incurling; and (

d) policies and practices of curling clubs and leagues where adolescents participate. [31] RVS’s reliance on the expert evidence adduced on behalf of Ms. Hindley is misplaced. That evidence, though limited inmany respects, suggests that awareness of head injuries in curling was on the rise at the time of the incident and implies that custom orgeneral practice in the curling community may have been in transition. The expert evidence asserts that the risk of head injuries wasgenerally understood within the curling community and that Curling Canada was slow to act. Ms.

Hindley’s expert further states thatmany schools have discontinued their curling programs because of the risk of injury. The expert evidence does not support RVS’scontention that there was an established custom or general practice which the Court should adopt as the applicable standard of care. [32] My conclusion that RVS has not established the existence of a custom or general practice on a balance of probabilities isreinforced by my conclusion that, as a matter of law, establishing the existence of a custom or general practice alone is not sufficient todecide the question of standard of care.

The law set out above is that custom or general practice is relevant to, but not necessarilydeterminative of, standard of care. The prudent parent standard may demand more caution than prevailing custom or general practice asrepresented by a guideline or rule promulgated by an authority. For example, prudent parents may have required their children to wearbicycle helmets before they were mandated by law in 2002: Vehicle Equipment Regulation, Alta Reg 322/2002. Similarly, prudentparents may have adopted helmet use for their children in downhill skiing before various authorities recommended helmet use.

As such,in the present case, even if RVS could show on a balance of probabilities that there was a custom or general practice of non-use ofhelmets in curling at the time of the incident, that alone would not be enough to establish the content of the prudent parent standard on abalance of probabilities given that the prudent parent standard entails a heightened degree of attentiveness. Liability of the Third Party, Cochrane Curling Club Society Occupiers’ Liability Act [33] RVS contends that it would be “absurd” for there to be different standards of care for RVS and CCC.

Specifically, RVSsubmits that “[w]e cannot have a standard requiring helmets placed on the School and another standard not requiring helmets placedon the Curling Club” [emphasis in original]. No authority was cited to support this bold claim. [34] The CCC rented the curling facility to RVS. The evidence is clear that despite RVS’s pleading, neither party believed thatCCC was responsible for supervising the students at the curling facility.

As the party with control over the curling facility but with noother relationship to the students, the CCC’s standard of care is exclusively defined by the Occupiers’ Liability Act: Stefanyk v SobeysCapital Incorporated, 2018 ABCA 125 at para

Section 5 provides that:

An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the caseis reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited orpermitted by the occupier to be there or is permitted by law to be there. [35] The CCC is subject to the reasonableness standard in the Occupiers’ Liability Act whereas RVS is subject to the prudentparent standard. As explained earlier in these reasons, the prudent parent standard involves a heightened degree of attentiveness.

Thereis nothing absurd about there being two different legal standards in the present case because RVS’s duty stems from its supervisory roleover the students whereas CCC’s duty arises from its control of the facility. [36] The Third Party Claim issued by RVS pleads the Occupiers’ Liability Act and states that CCC failed to meet its duty invarious ways including failing to supervise the students and failing to provide safety equipment, including helmets. [37] The Supreme Court of Canada has held that an occupier only has a duty to warn of “unusual danger”: Mitchell v CanadianNational Railway Co, (SCC), [1975] 1 SCR 592 at 597.

The Alberta Court of Appeal put the same idea in differentwords in Wood v Ward, 2009 ABCA 325 at para 4 saying that where “the risk was obvious, there was no duty to warn.” [38] The logic that underlies the requirement that an occupier warn only of unusual danger is that, in the absence of a warning, avisitor can take precautions to avoid or mitigate only obvious risks. The risk in the present case was that the ice was slippery and couldcause students to fall and become injured. That risk was obvious, so the law did not require CCC to warn RVS. [39]

Section 5 of the Occupiers’ Liability Act provides that an occupier must take “such care as in all the circumstances of the caseis reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited orpermitted by the occupier to be there....” If helmets were required for RVS students to be “reasonably safe in using the premises” forcurling, then CCC could have complied with the standard of care in s. 5 in two ways. First, CCC could have imposed a rule prohibitingpeople under the age of 18 from curling without a helmet.

Such a rule is analogous to a “life jacket must be worn at all times” ruleimposed by a white-water rafting operator. A rule prohibiting use of the curling facility by minors without a helmet would have placedthe onus for supplying helmets on RVS or the students if they wished to use the curling facility. [40] Second, CCC could have supplied helmets. This latter option would have altered the terms of the economic arrangementbetween RVS and CCC and, on the evidence before the Court, the provision of helmets by CCC does not appear to have been in thecontemplation of either party.

Master Mason observed in her Endorsement at para 34 that no authority had been provided to support theproposition that CCC’s standard of care under the Occupiers’ Liability Act required the provision of safety equipment. Despite thepassage of more than a year and a half since her Endorsement, counsel for RVS was still unable to provide any case law examples wherean occupier’s obligation was held to require the provision of safety equipment.

The reason for the lack of any authority on this point is,in my view, explained by the fact that an occupier’s duty may equally be discharged by having a rule prohibiting use of the facilitywithout the relevant safety equipment. [41] CCC did not have a rule requiring helmet use by minors. Did the standard of care imposed by Occupiers’ Liability Act s 5require that CCC have such a rule (or supply helmets) in late 2015? I concluded above at para 30 that the evidence before the Court isnot sufficient to establish a custom or general practice with respect to helmet use by minors in curling in late 2015.

And, as set outearlier, proof of a custom or general practice is relevant to, but not determinative of, standard of care. The question of whether CCC wasrequired to have a rule mandating helmet use by minors to satisfy its obligation under the Occupiers’ Liability Act to ensure that visitorswere “reasonably safe in using the premises” in late 2015 is a genuine issue requiring a trial. [42] Though the content of the standard of care applicable to RVS and CCC are both genuine issues for trial, the legal standardsare different.

Nothing in this decision binds the trial judge with respect to what those standards require in the circumstances of thepresent case. Indeed, after a trial a judge may decide that the two standards call for different precautionary measures. The Rental Agreement Between RVS and CCC [43] RVS submits that there is a triable issue with respect to the terms of the rental agreement between RVS and CCC. There is nowritten agreement.

The only evidence of the terms of the agreement is in the testimony of the RVS and CCC witnesses. [44] RVS did not plead breach of contract in the Third Party Claim nor did it plead that the terms of the rental agreement betweenRVS and CCC varied CCC’s obligations under the Occupiers’ Liability Act.

Accordingly, if there were no genuine issue for trial underthe Occupier’s Liability Act, there would be no genuine issue for trial on the rental agreement between RVS and CCC. [45] The only reason that the terms of the rental agreement raise a genuine issue for trial is that I have found that CCC’s liabilityunder the Occupiers’ Liability Act is a genuine issue for trial and CCC pleaded the terms of the rental agreement as limiting its duty in itsThird Party Statement of Defence.

CCC asserted that the terms of the RVS and CCC agreement were that RVS was exclusivelyresponsible for supervision and supply of instruction and equipment and that RVS would indemnify CCC “from and against any and allactions, damages, costs, expenses, or liabilities” resulting from RVS’s use of the facilities. [46] CCC’s Third Party Statement of Defence may be read as pleading that its duty of care under s 5 of the Occupiers’ LiabilityAct was varied by the terms of the rental agreement with RVS as permitted by s 8 of the Occupiers’ Liability Act: 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. [47] I find that the terms of the rental agreement between RVS and CCC raise a genuine issue for trial.

Conclusion [ 48 ] RVS’s appeal of Master Mason’s decision dismissing its

summary dismissal application is denied. RVS’s appeal of Master Mason’s decision granting CCC’s

summary dismissal application is allowed. If the parties cannot agree on costs, they may make submissions in writing of 5 pages or less supported by a draft bill of costs within 30 days of these reasons. Heard on the 16 th day of February, 2023. Dated at the City of Calgary, Alberta this 21 st day of February, 2023. Colin C.J. Feasby J.C.K.B.A. Appearances: James Ludwar for the Respondent/Plaintiff Nabeel Peermohamed for the Appellant/Defendant Alice M.L. Wong for the Respondent/Third Party