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July 2021

Enforceability of Waivers: An Update

Case Study: Arksey v. Sky Zone Toronto, 2021 ONSC 4594

Alan Drimer
Alan Drimer,

By Alan Drimer

On June 28, 2021, the Ontario Superior Court of Justice led by Myers J., released a decision in Arksey v. Sky Zone Toronto, 2021 ONSC 4594.

Generally, this was a summary judgement based on the terms of a waiver and the release of liability by the plaintiff. Specifically, whether the plaintiff waived her right to sue arising from injury caused by the defendant's failure to supervise and follow its injury policies.

The plaintiff attended the defendant's facility, Sky Zone Toronto, to play a game of trampoline dodgeball. The plaintiff alleged that she was allowed to begin playing without any instruction on the rules of the game or safety protocols. There was no employee present to monitor the game.

While the plaintiff was playing, another participant threw a ball that struck the back of her knee. Following this, the plaintiff experienced some discomfort and briefly left the game. An employee tended to the plaintiff but suggested that that the plaintiff go back into the game as her injury did not seem significant. The plaintiff then re-entered the game, however, when she began bouncing, her right knee imploded, causing significant pain.

The defendant's witness on discovery agreed that its policies were not followed by the employee who came to the plaintiff's aid after her first injury. At a minimum, he should have reported the injury to the manager and given the plaintiff ice.

It was the plaintiff's position that the defendant failed to instruct the plaintiff on the rules of the game and failed to supervise the participants. Additionally, that they failed to follow their policies in reporting the accident, and urging the plaintiff to re-enter the game when she was significantly injured.

The Court began its analysis by citing the British Columbia Court of Appeal decision Apps v Grouse Mountain Resorts Ltd., 2020 BCCA, wherein there is no obligation on the defendant to ensure that the plaintiff has read the contract she voluntarily signed. Furthermore, there was no indicia based on the facts of the case that the defendant ought to have known that the plaintiff was not consenting to the terms.

The Court held that there was no issue that the plaintiff did not consent to the terms of the waiver.

...the wording present in the waiver made it clear that the plaintiff was accepting the risk...

Further, the Court held that the wording present in the waiver made it clear that the plaintiff was accepting the risk that employees might give incomplete warnings or instructions:

Sky Zone employees... may give incomplete warnings or instructions... I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary and I elect to participate in spite of the risks.

Furthermore, the plaintiff released all claims for any cause whatsoever as a result of her participation in the game including negligence, breach of contract, and the Occupiers' Liability Act.

The court found that the waiver, by its express terms, warned of the risk that employees may not give complete instructions and warning and that these risks could result in the employees negligently not protecting her from the dangers of playing.

The Court also found that the defendant took reasonable steps to bring the terms of the plaintiff's attention. Short of standing over the plaintiff and forcing her to read terms and say out loud to a video recorder that she agreed to play at her own risk despite injury, the Court found that there was nothing else the defendant could have done to alert the plaintiff.

The plaintiff exercised her autonomy to weigh the risks and benefits of the proposed transaction. She then entered into an agreement that affected her legal rights. That is exactly what consumers are entitled to expect and to do.

Accordingly, the action was dismissed.
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