July 22, 2020 by Greg Meckbach
An indoor trampoline operator has lost its bid to have a personal injury lawsuit from a customer dismissed on the grounds of a waiver.
In Zaky v. 2285771 Ontario Inc., Ontario Superior Court Justice Clayton Conlan ruled there is a genuine issue requiring a trial in court. The ruling pertains to an ongoing lawsuit filed by Rafik Zaky against the numbered firm, which operates as Sky Zone Indoor Trampoline Park in Mississauga.
While on a trampoline at Sky Zone in July 2014, Zaky landed hard on his head and suffered serious injuries – including a C7 vertebra fracture that required surgery.
Allegations that Sky Zone is liable have not been proven in court.
The waiver at issue was presented at an electronic kiosk, the plaintiff said in an affidavit. The plaintiff reported that he typed his personal information into the kiosk, scrolled to the end of a document, and pressed an “agree” button on the last page.
The issue requiring a trial is the question of whether Sky Zone “took reasonable steps” to bring the terms of the waiver to the plaintiff’s attention, Justice Conlan wrote in his decision released July 16. As a result, Sky Zone’s motion for summary judgement to dismiss the case was denied.
Court documents indicate that Zaky said he entered the facility at 8:05 p.m. At the time his friends were already using the trampoline. The electronic signature was obtained at 8:11 p.m.
The plaintiff was not cross-examined on the evidence presented on the motion. On the defence side, no evidence was given from anyone who was present at the time the plaintiff visited the premises, Justice Conlan noted.
For its part, the defendant argued that by agreeing to its waiver, the guests voluntarily assume all risks associated with their participation in trampoline games or activities at Sky Zone. In particular, the customers agree their participation is purely voluntary and the elect to participate in spite of the risks. Specific risks mentioned in the waiver include broken bones and serious injury that can result from flipping.
The waiver says customers release Sky Zone from liability for, among other things, injury “due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupiers’ Liability Act.”
Justice Conlan agreed with the defendant’s point that it is immaterial that the waiver was signed at a kiosk and not by an ink signature on printed paper. This is because Ontario’s Electronic Commerce Act stipulates that a contract may be formed by a person “touching or clicking an appropriate icon or other place on a computer screen” and a contract “is not invalid or unenforceable by reasons only of being in electronic form.”
Previous court rulings have held that it is immaterial if a plaintiff has not actually read a waiver, Justice Conlan noted.
“Although a person who signs a waiver without reading it does so at his or her own risk, the safest course of action for recreational operators is to implement and follow a policy which requires instructions to be provided to all participants to take their time to carefully read waivers and to ask questions if there is anything they do not understand,” wrote Brian Sunohara, partner and litigation lawyer with Rogers Partners LLP, in a blog post on CanLII Connects, commenting on Zaky v. 2285771 Ontario.
In Ontario, previous court rulings say waivers are not in an of themselves to be considered unreasonable or unconscionable in the context of dangerous sports and activities, Sky Zone said in its factum.
But there are exceptions to the enforceability of waivers. One is “where the defendant knew or ought to have known that the plaintiff did not intend to be bound by the waiver and, therefore, the defendant had a duty to bring the terms of the waiver to the plaintiff’s attention.”
Feature image via iStock.com/MaximFesenko