Waiver Enforceability - Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380

October 23, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Zaky v. 2285771 Ontario Inc. (Sky Zone Indoor Trampoline Park)

Date of Decision: July 16, 2020
Heard Before: Conlan, J

LIABILITY: is the mere presence of a waiver enough to make the waiver valid and enforceable; the Occupiers’ Liability Act; making importance of waiver evident;

Mr. Zaky visited a Sky Zone trampoline park and injured himself seriously while attempting a backflip on the trampoline. He landed on his head and fracture his C7 vertebra. He required surgery. As a result of his injuries, Mr. Zaky brought an action in negligence against Sky Zone under the Occupiers’ Liability Act.

Mr. Zaky had signed an electronic waiver document at a computer kiosk before using the facilities. The waiver contained an explicit warning about the legal nature of the waiver. It explicitly contained an assumption of risk clause. The waiver also contained a warning about the risk of broken bones and specifically mentions that flipping was an activity that carried the risk of serious injury. The waiver also detailed that it covered claims of negligence and of breach of the Occupiers’ Liability Act regardless of the cause of harm or injury to the guest.

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Sky Zone and to waive any and all claims, demands, or causes of action that I have or may have in the future against Sky Zone and to release Sky zone from any and all liability for any loss, damage, expense or injury including death that I may suffer or that my family, heirs, assigns, personal representatives and estate may suffer as a result of my participating in Sky Zone trampoline games or activities 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, R.S.O. 1990, C. O. 2 ON THE PART OF SKY ZONE AND FURTHER INCLUDING THE FAILURE ON THE PART OF SKY ZONE TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF SKY ZONE TRAMPOLINE GAMES OR ACTIVITIES.

Sky Zone moved for a summary judgement dismissing the action on the basis of the waiver on the basis that Mr. Zaky had not established any basis that the waiver is not valis or enforceable. This is regardless of whether it was read or understood. Sky Zone argued it had taken all reasonable and necessary steps to bring the waiver to the attention of Mr. Zacky and that on this basis Mr. Zaky’s motion was contractually barred.

The issue at question is whether Sky Zone’s motion for Summary Judgement to dismiss the action on the basis of the waiver is valid. Does the waiver signed by Mr. Zaky form a full defence in the case? Did Sky Zone take reasonable steps to bring the terms of the waiver to Mr. Zaky’s full attention.

Mr. Zaky takes the position that this was his only time signing the waiver and that he was not familiar with its contents. He argues he was rushed through the signing process by the employee who pointed him to the kiosk and told him to hurry up as his friends were already jumping. He went to the kiosk where he scrolled down and selected the agree button. He says that none of the important terms of the waiver were highlighted, bold, or in other colours. None of the dangers of the activity were emphasized to him. He also argues the employee did not at the kiosk and did not mention the waiver. Mr. Zaky argues that on this basis he was not aware he was giving up his full legal rights.

Sky zone took the position that Mr. Zaky did not establish any reason that would justify departing from the general rule that the waiver is valid and enforceable regardless of whether he understood or even read it. Sky Zone also argues that they took all reasonable steps to bring the waiver to Mr. Zaky’s attention and that on the basis of these facts there is no issue requiring a trial and the action is contractually barred.

The court dismissed the motion for the following reasons:

1.         There is genuine issue whether Sky Zone rook reasonable septs to bring the terms of the waiver to Mr. Zaky’s attention.

2.         Although Mr. Zaky was not cross-examined on his evidence “other than the unchallenged evidence of Zaky, there is no evidence before this Court from anyone, on behalf of Sky Zone or otherwise, who was present when Zaky visited Sky Zone’s premises.”

3.         Given those facts Justice Conlan stated that “it would be dangerous to conclude on balance that there is no genuine issue for trial on the question of whether Sky Zone took reasonable steps to bring the terms of the waiver to the attention of Zaky.”

The Court agreed with and followed the precedent set in Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 (CanLII). The case was similar in that the Plaintiff submitted she was rushed and the employee had not emphasized the nature of what she was signing. The Plaintiff failed to understand she was waiving all rights to sue. The Court dismissed the Summary Judgement Motion emphasizing that the circumstance and conditions under which someone signs a waiver are important considerations.

The Court stated that:

 Interestingly, if one examines carefully paragraph 38 of the factum filed on behalf of Sky Zone dated June 8, 2016, which paragraph sets out eight steps that have been found in the case law to constitute reasonable efforts by a defendant to alert the plaintiff to the terms of a waiver, one is able to conclude that almost all of them do not exist on our facts, given the evidence presented by Zaky:

(a), the website is not relevant;

(b), posted signs about the waiver is not relevant;

(c) the simple requirement to sign a waiver before participating, that was in existence at Sky Zone;

(d) through (g), specific safeguards contained in the content of the waiver document itself, none applies to our situation; and finally

(h), sufficient time to peruse the document, not according to Zaky.

[31] Surely, the mere fact that there was a waiver requirement cannot, in law, constitute reasonable steps to bring the terms of the waiver to the attention of the participant.

[32] In the circumstances, there is no need for this Court to assess the alternative arguments put forward on behalf of Zaky, namely, that (i) the waiver document did not cover the specific act that was performed by Zaky and which led to his serious injury (a single backflip on a trampoline) and (ii) from a human factors perspective, the waiver document was deficient in several respects.

Conclusion:

The motion for summary judgement is dismissed.

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