IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150721

Docket: 14-0358

Registry:
Victoria

Between:

Rosanna
Chamberlin

Plaintiff

And:

Canadian
Physiotherapy Association, Physiotherapy Association of British Columbia (A
branch of the Canadian Physiotherapy Association), David Koretchuk, Marjorie
Belot, Christine Balkwill, Jennifer Lee, and Leif Cope

Defendants

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment

Introduction

[1]            
The plaintiff claims she was injured when she participated in a continuing
education course that was organized and administered by the defendant, the Canadian
Physiotherapy Association (the “Course” and the “CPA”).

[2]            
The defendants say the plaintiff signed a waiver releasing them from any
responsibility for any injuries or losses attributable to her participation in
the Course. They also maintain they are not liable because the plaintiff willingly
assumed the risks participation in the Course posed to her.

[3]            
By notice of application filed 14 June 2014, the defendants seek to
have the plaintiff’s claims dismissed by summary trial, pursuant to Rule 9-7 of
the Rules of Court.

Background Facts

The Parties

[4]            
The plaintiff, Ms. Chamberlin, is a physiotherapist registered with
the College of Physical Therapists of British Columbia (the “College”). Ms. Chamberlin
was a recent graduate when she enrolled in the Course in January 2012.

[5]            
The CPA is a professional organization that provides continuing education
to practicing physiotherapists. The Physiotherapy Association of British
Columbia (“PABC”) is a branch of the CPA. The CPA and PABC are separate legal
entities.

[6]            
David Koretchuk, Marjorie Belot, and Christine Balkwill are registered
physiotherapists with the College. They served as CPA-certified instructors for
the Course.

[7]            
Jennifer Lee and Leif Cope are registered physiotherapists who were,
along with Ms. Chamberlin, participants in the Course.

The Course

[8]            
The Course that the CPA hosted was entitled “Advanced Manual and
Manipulative Therapy: Level 2 Upper Quadrant” and was designed to train physiotherapists
in advanced manual and manipulative techniques for upper quadrant
musculoskeletal conditions. It took place over a period of four consecutive
months, one weekend per month, at the University of British Columbia campus in
Vancouver. The actual dates were:

1.    
Weekend #1:     17 to 19 February, 2012;

2.    
Weekend #2:     16 to 18 March, 2012;

3.    
Weekend #3:     27 to 29 April, 2012; and

4.     Weekend #4:     18
to 20 May, 2012.

[9]            
It appears that a total of 84 hours of training time was scheduled on
these dates, inclusive of breaks.

[10]        
When Ms. Chamberlin registered for the course in early 2012 she was
aware that it had a practical “hands-on” aspect to it that would involve the
physical manipulation of her body. She believed Course participants were
expected to take part in the practical exercises, but they could “opt-out”
where a pre-existing injury would prevent safe participation. She explained that
she attended the Course as part of her ongoing professional obligation to the
College to remain current in the field of physiotherapy.

[11]        
Prior to the commencement of the Course, Ms. Chamberlin received an
email from the CPA confirming her registration. Attached to the email was a
two-page document which included the address of the Course, the dates and times
of the various sessions, and other relevant information. The second page of the
document included the following:

LIABILITY

Participants are responsible for
their own well being while attending the course. It is also their
responsibility to inform the instructor and their fellow participants if there
is some contraindication to examination or treatment for a part of their
musculo-skelatal system and therefore they should not act as model in the
practical sessions.

PARTICIPANT
PREPARATION FOR COURSES

It is expected the participant
will review the appropriate musculo-skelatal anatomy prior to the course. All
participants must be physically able to take part in the practical sessions.

[12]        
The end of the document provides in bold: “Proof of completion of
previous courses is required for you to start the course.” Nowhere in the email
or the attachments to it is there any mention of a requirement to sign a waiver.

The Waiver

[13]        
Ms. Chamberlin says that she first learned of the requirement for
her to sign a waiver on 17 February 2012, the first day of the Course. The
waiver was included in a course manual that was provided to her and it reads as
follows (the “Waiver”):

Canadian physiotherapy
association —
Diploma of Advanced Orthopaedic Manual and Manipulative
Physiotherapy courses

WAIVER OF COURSE LIABILITY

I accept that there are risks involved in this course’s techniques and
procedures and thereby waive any and all claims which I might have at any time
have (sic), against the:

1.   Canadian Physiotherapy Association,
2.   Orthopaedic Division, Education Committee,
3.   Provincial Orthopaedic Division Course Representative,
4.   Members of 1.-3. staff and agents,
5.   Site of Course

in any manner whatsoever relating
to my participation in this Diploma of Advanced Orthopaedic Manual and
Manipulative Physiotherapy Course.

Diploma of Advanced Orthopaedic Manual and Manipulative Physiotherapy Course
Level: ____________________

Senior or Chief Instructor Name: ____________________
Senior or Chief Instructor Registration Number: ____________________

If Applicable:
Co-Instructor Name: ____________________
Co-Instructor Registration Number: ____________________

Lab Assistant Name: ____________________
Lab Assistant Registration Number: ____________________

Participant’s printed name in full: ____________________

Participant’s Signature: ____________________

Date signed: ___________________

[14]        
I will note parenthetically at this point, that during his submissions,
counsel for the defendants acknowledged that there was grammatical problem with
the first full sentence of the Waiver. To correct the problem and to allow the
sentence to make grammatical sense, counsel proposed that the second “have” be
deleted.

[15]        
Attached as an exhibit to Ms. Belot’s affidavit #1 sworn 13 June
2014, is a copy of the speaking notes she used during her introductory comments
to the participants on the first day of the Course. The notes include the
following as the sixth item to address:

“Signed Waivers (Advocate for
yourself and protect your body; give honest feedback)”.

[16]        
Ms. Belot asked all of the participants to sign and return the Waiver.
She also asked them to confirm that they had passed the course’s predecessor:
“Advanced Manual and Manipulative Therapy: Level 1 Upper Quadrant.”

[17]        
In evidence is a copy of the Waiver that Ms. Chamberlin completed
and returned to the Course organizers. Under the heading “Diploma of Advanced
Orthopaedic Manual and Manipulative Physiotherapy Course Level”, the phrase “2
Upper Quadrant” is handwritten. The fields relating to senior or chief
instructor name and registration number, co-instructor name and registration
number, and lab assistant name and registration number are all blank. Ms. Chamberlin’s
printed name and what appears to be her signature are handwritten on the
document. The date of “Feb 17, 2012” is also handwritten.

[18]        
There is no dispute among the parties that the Waiver was brought to the
attention of the Course participants, including Ms. Chamberlin. However,
what Ms. Belot said about the Waiver, and what Ms. Chamberlin
understood to have signed, remains contentious.

[19]        
Consistent with Ms. Belot’s speaking notes, Ms. Chamberlin
says the participants were told they were responsible for their bodies and
needed to give honest feedback to the instructors. However, she maintains the Waiver
was simply presented as a form for participants to review and sign so that the
course could continue. According to Ms. Chamberlin, the Waiver and its
implications were not otherwise explained to the participants. At paragraph 11
of her affidavit #1 sworn 16 July 2014, Ms. Chamberlin explained how
she was made aware of the Waiver and what she was told about it:

[11]      The first I learned of
the waiver was when it was presented as part of our course materials. We were
told that we were responsible for our bodies and we needed to give honest
feedback. The waiver was presented as a form for us to review and sign so we
could continue in the course. I was never told about the meaning of the waiver.
My review of the waiver was that I would not be able to make any claims about
soreness or trips and falls on the premise.

[20]        
According to Ms. Belot, she told the participants that they could
not proceed in the Course without first reading and signing the Waiver. She
also contends that she emphasized the importance of the Waiver and told the
participants that they were responsible for their own bodies. At paragraph 6
of her affidavit #2 sworn 28 July 2014, Ms. Belot described what she
said to the participants at the outset of the Course:

[6]        In response to
paragraph 11 of the Plaintiff’s Affidavit, during the first day of the
Course I indicated to participants that it was important to read and sign
the Waiver, as participants could not proceed with the Course’s practical
session without having done so. As even the Plaintiff acknowledges, I told
participants that they were “responsible for their own bodies” at the same time
I asked for the Waiver to be signed. As indicated in my prior Affidavit, I
advised of the Course Format. [Emphasis added]

[21]        
Aside from confirming that she told the Course participants that it was
“important” for them to “read and sign the Waiver” and that they were
“responsible for their bodies”, Ms. Belot provides no further evidence on
the topic of the Waiver or what she said about it, including anything to
address Ms. Chamberlin’s assertion that she was given no explanation of
its meaning.

[22]        
In their evidence, both Ms. Lee and Mr. Cope say that Ms. Belot
gave the participants sufficient time to read the Waiver. Moreover, they
explained that no one appeared to ask any questions about the Waiver during the
first day of the course. They say they believed the Waiver would prevent
participants in the Course from pursuing a legal claim in negligence against
the CPA, the Course instructors, or any of the participants.

[23]        
Ms. Chamberlin, however, says that she did not know or understand that
by executing the Waiver she might be relinquishing her rights to sue those
involved with the Course. At paragraph 12 of her affidavit #1, Ms. Chamberlin
explained:

[12]      I had no idea that the
CPA meant this document to waive all ability to sue for negligence on the part
of the instructors or my fellow participants. Had I know that the CPA wanted to
use this waiver for this purpose, I would not have signed it. There are other
courses that I could have attended and, in fact, have attended with the CPA
that did not require a waiver.

The Injuries

[24]        
At the first weekend session of the Course, in February 2012, Ms. Chamberlin
participated in all of the practical exercises. At the end of the weekend, she
began suffering from headaches and neck pain. Ms. Chamberlin missed a few
days of work the following week, and required massage therapy, physiotherapy,
and pain medication to alleviate her symptoms.

[25]        
In March 2012, at the second weekend session of the Course, Ms. Chamberlin
informed the defendant Ms. Balkwill of the injury to her neck from the
first session. According to Ms. Chamberlin, Ms. Balkwill showed
little concern. Moreover, Ms. Balkwill failed to investigate anything in
relation to the complaint or suggest any remedial steps to accommodate Ms. Chamberlin’s
situation. Ms. Chamberlin was left with the impression that her symptoms
were normal. Ms. Chamberlin knew Ms. Balkwill was a senior,
experienced physiotherapist and one of the instructors on the Course. As such, she
relied on Ms. Balkwill’s judgment and opinion to continue participating in
the Course.

[26]        
During this same weekend session, Ms. Chamberlin trained with a
fellow participant, Mr. Cope. At paras. 20 and 21 of her affidavit #1, Ms. Chamberlin
explained what happened during that training session:

[20]      During weekend 2, I
was practicing with the Defendant Leif Cope. I was hesitant and did not allow
Mr. Cope to perform any techniques on my neck, which made it difficult
because the instructors had not authorized me to not participate as a model.
Mr. Cope was not able to practice his techniques since there was not
enough time in the course for a group of three to practice together. As a
result, I allowed Mr. Cope to perform a “lateral shear test” on my neck
and he injured me instantly. The moment I stood up I fell to my knees crying,
feeling nauseous and light-headed.

[21]      I approached the
Defendant Marjorie Belot in tears explaining what happened and that something
was wrong. It was only at this point that Ms. Belot conducted an
assessment of me and said that my vertebrae were pushed off to the side
misaligning my neck. Ms. Belot re-aligned my neck and briefly told Mr. Cope
what he did wrong and said that no one else would perform neck techniques on
me. As she was doing this, Ms. Belot joked that I had signed the waiver. I
went and got an ice-pack and Advil.

[27]        
This evidence from Ms. Chamberlin went unchallenged on this summary
trial, and in particular Ms. Belot did not address it in her responsive affidavit
#2.

[28]        
In May 2012, at the fourth weekend session of the Course, Ms. Chamberlin
was partnered with the defendant Ms. Lee. Ms. Chamberlin informed the
Course instructors and Ms. Lee of a pre-existing condition in her
shoulder, which results in hypermobility of her joints. The defendant Mr. Koretchuk
used Ms. Chamberlin as a model to illustrate a shoulder test. She says
that Mr. Koretchuk commented to her that she had unusual joints, but he
did not caution Ms. Lee on using Ms. Chamberlin as a training
partner. According to Ms. Chamberlin, when Ms. Lee was performing on
her one of the techniques demonstrated by Mr. Koretchuk, Ms. Chamberlin’s
shoulder made a popping sound that startled Ms. Lee. Ms. Chamberlin
says that she reported this injury to Mr. Koretchuk, who was working on a
computer and not supervising any of the participants. Mr. Koretchuk did
not assess Ms. Chamberlin’s shoulder injury. According to Ms. Chamberlin,
Mr. Koretchuk joked with her that it was a good thing she had signed a
waiver. Aside from offering to place her arm in traction, Mr. Koretchuk
offered little other assistance to her.

[29]        
During the lunch break, Ms. Chamberlin purchased an ice-pack and
some ibuprofen. The pain in her shoulder increased during the afternoon to the
point where she could not move her arm. At the conclusion of this last session
of the Course, Ms. Chamberlin returned home.

The Plaintiff’s assumption of risk

[30]        
The defendants, who deny the plaintiff’s account of the events, say that
Ms. Chamberlin had pre-existing medical conditions relating to her neck
and shoulders. They also contend that she failed to adequately inform her
instructors, the CPA, or her fellow participants about these conditions.

[31]        
The defendants submit that Ms. Chamberlin’s circumstances and
conduct evidence a knowing and willing acceptance on her part of the risks
involved in participating in the Course. In support of this position, the
defendants point to Ms. Chamberlin’s evidence where she acknowledges a
medical history with respect to her shoulders and a pre-existing condition
resulting in hypermobility of her joints. The defendants also refer to a lawsuit
from 2009, where they say Ms. Chamberlin claimed compensation for injuries
to her neck, shoulders, and back that she attributed to a motor vehicle
accident.

[32]        
In response, Ms. Chamberlin says that she did not think or believe
that the Course was a risky activity. While she knew that some of the exercises
might cause her to feel mildly stiff or sore afterwards, she did not anticipate
or expect that her participation could result in serious injuries. She believed
that the CPA would provide a safe and well-structured learning environment. She
says that participants were told to report any issues to their instructors,
which she did at the start of the Course, at the start of the third weekend,
and after each successive injury.

Issues

[33]        
In his written submissions, counsel for the defendants explained the foundation
of their application as follows:

1.         The Defendants ask that the Plaintiff’s action
against the Defendants be dismissed, and that the Plaintiff pay the Defendants’
costs, because:

(a)        the Defendants are
entitled to rely upon the Waiver;

(b)        to the
extent that the Waiver does not bar the Plaintiff’s claim in respect of some or
all of the Defendants, the Plaintiff with full knowledge of the format of the
Course and the risk of injury or damage to herself, willingly accepted the risk
of participating in the Course and its practical sessions, thereby waiving any
claim with respect to injury, loss damage or expense which might have been
occasioned to her, per the doctrine of volenti non fit injuria; and / or

(c)        in specific reference to the
Defendant PABC, in the event that neither the Waiver nor the doctrine of volenti
non fit injuria bar the Plaintiff’s action against the Defendant PABC, the
Plaintiff’s action against the Defendant PABC still ought to be dismissed
because the Defendant PABC had no role in arranging or administering the
Course.

[34]        
Using this as a framework for this application, there are four questions
that need to be addressed and answered:

1.    
Are the matters raised on this application suitable for determination by
summary trial?

2.    
Does the Waiver bar the plaintiff from claiming against the defendants?

3.    
Does the doctrine of volenti non fit injuria bar the plaintiff from
claiming against the defendants?

4.     Did the
PABC have any role in the Course and if not should the plaintiff’s action
against it be dismissed?

Preliminary
Evidentiary Objection

[35]        
Before addressing the substantive issues raised on this application, I
first need to rule on a number of evidentiary objections raised by counsel for
Ms. Chamberlin.

[36]        
In support of its application, the defendants seek to rely upon the
following evidence:

1.     Ms. Belot’s
affidavit #2;

2.     Ms. Lee’s
affidavit #1, sworn 28 July 2014; and

3.     Mr. Cope’s
affidavit #1, sworn 28 July 2014.

[37]        
The plaintiff objects to the admissibility of these affidavits on two
grounds. First, the plaintiff maintains that the affidavits do not comply with
Rule 9-7(8) of the Rules of Court in that they are not proper
rebuttal evidence. Supplementing that ground of objection, the plaintiff also
contends that the affidavits contain impermissible hearsay, speculation or
argument.

[38]        
The defendants say the affidavits are necessary and appropriate in that
they respond to and address issues raised in the plaintiff’s application
response and the evidence she has marshalled in support of her position on this
application. As for the alleged hearsay, the defendants submit this evidence
should be admitted under the principled approach to the hearsay rule. With
regard to any portions of the affidavits that the court finds to be
argumentative, the defendants submit those extracts can be redacted from the affidavit.

[39]        
I begin by observing that where a contested application can result in a
final order, the chambers judge hearing the application must be vigilant to
ensure the evidentiary foundation presented in support of the application
complies with the appropriate rules of evidence (See: Cotton v. Wellsby,
[1991] B.C.J. No. 2783 (C.A.)). Hearsay evidence tendered as proof of the
truth of the fact asserted, evidence based on information and belief, and
evidence that amounts to speculation or argument will generally be ruled
inadmissible on applications for final orders (See: Kour Estate v.
Bhandar, [1996] B.C.J. No. 2379 (S.C.); Tundra Helicopters Ltd. v.
Allison Gas Turbine, 2002 BCCA 145; 0690860 Manitoba Ltd. v. Country
West Construction Ltd., 2009 BCCA 535.).

[40]        
In my opinion the affidavits in question properly respond to the
evidence presented by the plaintiff on this application and therefore they do
not run afoul of Rule 9-7(8). However, I also find portions of the
affidavits are inadmissible because they contain impermissible hearsay,
speculation or argument.

  Ms. Belot’s
Affidavit #2

[41]        
At paragraph 4, Ms. Belot attests to the fact that the College
“does not expressly require a physiotherapist to take a continuing education
course”. Aside from her being a physiotherapist who is registered with the
College, it does not appear that Ms. Belot has any official or
administrative role with the College that would permit her to testify about
what the College actually requires of its members. I take it Ms. Belot’s
evidence is based on her personal experience and what she believes the
College’s rules to be. In the context of this case, that evidence is not
admissible for the truth of its contents. A similar concern arises with respect
to paragraph 5. In this paragraph Ms. Belot indicates that
“continuing education courses put on by the Defendant CPA routinely if not
always require execution of a waiver at the outset”. Once again, there is no
evidence that Ms. Belot has been authorized to provide evidence on behalf
of the CPA. While she can testify about her personal experience at CPA
sponsored events, in my view the suggestion she makes that the CPA regularly
requires waivers to be signed is beyond her competency as a witness.

[42]        
In paragraph 7, Ms. Belot provides her opinion of what a
reasonable person would conclude if they were given the same information that
Ms. Chamberlin had at the outset of the course. This is not evidence; this
is argument in the guise of evidence and it should not have found its way into
Ms. Belot’s affidavit.

[43]        
Paragraph 9 of Ms. Belot’s affidavit consists of the
following:

[9]        I am advised by the lawyer for the Defendants
that:

(a)        he
received a package from the Plaintiff’s lawyer in this action on July 18,
2014 which purported to contain copies of the documents listed under Part 1
of the Plaintiff’s List of Documents in this action; and

(b)        contained
in this package were the employment agreement and a practitioner registration
form, both attached as Exhibit “A”. [Emphasis in original.]

[44]        
I begin by noting that Exhibit “A” contains much more than what Ms. Belot
says it does. Beyond the employment agreement and practitioner registration
form that Ms. Belot refers to, the exhibit also includes:

1.    
excerpts from an employment manual;

2.    
a form entitled “Personal Information Collection, Use and Disclosure”;
and

3.    
an “Agreement” involving the Medical Services Plan.

[45]        
The employment agreement appears to have been signed by Ms. Chamberlin.
It is not signed by any authorized representative of the purported employer. A
number of the other documents also have Ms. Chamberlin’s name on them and what
appears to be her signature. Ms. Belot does not attest to the veracity of any
of these documents nor does she say they were in fact signed by the plaintiff
and are in force. The defendants seek to rely upon the documents in Exhibit “A”
as proof of the truth of the facts asserted in them. In my opinion, the
evidence contained in paragraph 9 and Exhibit “A” cannot be admitted on
this summary trial as it is hearsay.

[46]        
The same concern applies to paragraph 10 of Ms. Belot’s
affidavit. This paragraph reads:

[10]      Attached as Exhibit
“B” are documents from British Columbia Supreme Court Action … (Victoria
Registry), namely an Amended Writ of Summons and Statement of Claim, Statement
of Defence and two Trial Briefs. To my knowledge the Plaintiff never disclosed
to anyone in the Course any of the injuries specified in Exhibit “B”.
[Emphasis in original.]

[47]        
In the same vein as paragraph 9, the defendants seek to rely upon
paragraph 10 and the documents in Exhibit “B” for the truth of their
contents. Nowhere in her affidavit does Ms. Belot say anything about
whether the plaintiff in the present action is the same person as the plaintiff
in the action referenced in paragraph 10. Although the plaintiffs in both
cases are named Rosanna Chamberlin, the plaintiff in the present case resides
in Victoria, B.C. whereas the plaintiff in the other case resides in Edmonton,
Alberta. Ms. Belot seems to presume or speculate that the plaintiffs are
one and the same person. She may be correct, but I have no evidence that this
is so. Even if I were to accept that the plaintiffs are the same person, Ms. Belot
has no personal knowledge of these documents, beyond what she has been told by
her counsel, and in any event she does not and cannot attest to the truth of
their contents. Given the purpose for which the defendants seek to rely upon paragraph 10
and Exhibit “B”, I find the evidence is hearsay and therefore inadmissible.

[48]        
Finally, there is paragraph 12, which reads:

[12]      My understanding is
that the Plaintiff had been a registered, practicing physiotherapist in British
Columbia for over a years at the time of the Course.

[49]        
Ms. Belot does not explain the foundation for her “understanding”
that she expressed in paragraph 12. Whether it was her legal counsel or
someone else who told her or some document that she reviewed, I find the
contents of this paragraph to be inadmissible hearsay.

  Ms. Lee’s
Affidavit #1 / Mr. Cope’s Affidavit #1

[50]        
The affidavits of Ms. Lee and Mr. Cope are, except for the affiant’s
name, word-for-word identical. While this fact can go to the weight to be
attributed to the evidence, it does not on its own render the affidavits
automatically inadmissible.

[51]        
I am satisfied the affidavits are responsive to the plaintiff’s evidence
and therefore they do not breach Rule 9-7(8).

[52]        
At paragraph 4 of their respective affidavits, Ms. Lee and Mr. Cope
explain what they understood the Waiver to mean and what they did as a result
of that understanding. They also add what they would have done if they had
objected to the Waiver. At paragraph 5, they attest that they were not
surprised to learn of the Waiver on the first day of the Course and that
similar waivers were required for other CPA courses they had attended. What Ms. Lee
or Mr. Cope thought of the Waiver, what they understood it to mean, and
what they did as a result of the Waiver, is of little relevance or consequence
to this summary trial application. While I will admit the evidence, I find it
of little assistance in determining the issues that are currently before the
court.

The Law

  Waiver of liability

[53]        
In Tercon Contractors Ltd. v. British Columbia (Transportation and
Highways), 2010 SCC 4, Mr. Justice Binnie explained the legal
principles relating to the enforceability of a contractual clause excluding
liability at paras. 121–123:

[121]    The present state of
the law, in summary, requires a series of enquiries to be addressed when a
plaintiff seeks to escape the effect of an exclusion clause or other
contractual terms to which it had previously agreed.

[122]    The first issue, of
course, is whether as a matter of interpretation the exclusion clause even applies
to the circumstances established in evidence. This will depend on the
Court’s assessment of the intention of the parties as expressed in the
contract. If the exclusion clause does not apply, there is obviously no need to
proceed further with this analysis. If the exclusion clause applies, the second
issue is whether the exclusion clause was unconscionable at the time the
contract was made, “as might arise from situations of unequal bargaining power
between the parties” ([Hunter Engineering Co. v. Syncrude Canada Ltd.,
[1989] 1 S.C.R. 426], at p. 462). This second issue has to do with
contract formation, not breach.

[123]    If the exclusion
clause is held to be valid and applicable, the Court may undertake a third enquiry,
namely whether the Court should nevertheless refuse to enforce the valid
exclusion clause because of the existence of an overriding public policy, proof
of which lies on the party seeking to avoid enforcement of the clause, that
outweighs the very strong public interest in the enforcement of contracts. [Italics
in original.]

[54]        
Although Binnie J. was one of four justices who dissented in the
result, his approach to assessing the validity of contractual provisions that
purport to exclude or limit liability was endorsed by the majority (See: Tercon,
at para. 62).

[55]        
In essence, when assessing the enforceability of a contractual clause
excluding liability, the court must determine:

1.    
whether, as a matter of contractual interpretation, the exclusion clause
applies to the facts of the case;

2.    
whether the exclusion clause is unconscionable; and

3.     whether
the court should otherwise refuse to enforce the exclusion clause on public
policy grounds.

  Does
the exclusion clause apply to the factual circumstances?

[56]        
In addressing this first line of inquiry, Finch C.J.B.C. in Keefer
Laundry v. Pellerin Milnor Corporation, 2009 BCCA 273 at para. 59
adopted the following remarks of Geoff R. Hall in Canadian Contractual
Interpretation Law, 2ed, (Markham, Ont.: LexisNexis, 2012), at para. 7.10:

A release is a contract, and
the general principles governing the interpretation of contracts apply equally
to releases. However, there is also a special rule which is superadded onto the
regular ones. This rule comes from London and South Western Railway v.
Blackmore, an 1870 decision of the House of Lords. The rule in London
and South Western Railway holds that a release is to be interpreted so
that it covers only those matters which were specifically in the contemplation
of the parties at the time the release was given. The rule allows the court
to consider a fairly broad range of evidence of surrounding circumstances in
order to ascertain what was in fact in the specific contemplation of the
parties at the relevant time, and it is not uncommon for a significant amount
of extrinsic evidence to be examined when the rule is applied. However, like
the law of contract interpretation generally, the scope of permissible
extrinsic evidence does not extend to evidence of the parties’ subjective intentions;
such evidence is strictly inadmissible. [Emphasis added]

[57]        
In Karroll v. Silver Star Mountain Resorts Ltd. (1988), 33
B.C.L.R. (2d) 160 (S.C.), a decision that predated Keefer Laundry, McLachlin C.J.S.C.
(as she then was) framed the issues as twofold: whether the terms of the
release are broad enough to encompass the claims brought by the plaintiff
against the defendants; and whether the plaintiff is bound by the terms of the
release. The first issue is concerned with the construction of the terms of the
contractual waiver and thus aligns with the first line of inquiry described by
Binnie J. in Tercon. The second issue addresses the question of
whether the signing party read and understood the release. It arises in light
of the special rule that applies to the interpretation of releases as described
by Hall in Canadian Contractual Interpretation Law. In this context,
McLachlin C.J.S.C. opined at para. 24 that:

[24]      … there is no general
requirement that a party tendering a document for signature to take reasonable
steps to apprise the party signing of onerous terms or to ensure that he reads
and understands them.

[58]        
To this general rule, however, McLachlin C.J.S.C. identified the
following three exceptions:

1.    
where the document was signed by a plaintiff in circumstances in which
it was not his or her act (non est factum);

2.    
where the agreement was induced by fraud or misrepresentation; and

3.    
where the party seeking to enforce the document knew or had reason to
know that the signing party was under a mistake as to its terms.

(See: Karroll, at paras. 18
and 24.)

[59]        
In my opinion, the first two exceptions to the general rule do not apply
to the present case. The third, however, is relevant. In Karroll at
para. 25, McLachlin C.J.S.C., described the circumstances in which
the third exception might arise as follows:

[25]      Many factors may be
relevant to whether the duty to take reasonable steps to advise of an exclusion
clause or waiver arises. The effect of the exclusion clause in relation to the
nature of the contract is important because if it runs contrary to the party’s
normal expectations it is fair to assume that he does not intend to be bound by
the term. The length and format of the contract and the time available for
reading and understanding it also bear on whether a reasonable person should
know that the other party did not in fact intend to sign what he was signing.
The list is not exhaustive. Other considerations may be important, depending on
the facts of the particular case.

[60]        
Consequently, it is only where the party tendering the document for
signature knew or ought to have known that the signing party was not consenting
to the terms in question that the obligation arises to take reasonable steps to
advise the signing party of the details and implications of the waiver. To use
the language of Hall in Canadian Contractual Interpretation Law, the
party tendering the document must have been reasonably satisfied that the
waiver, including any onerous terms, were in the specific contemplation of the
signing party at the time the document was signed.

  Is
the exclusion clause unconscionable?

[61]        
Even if the language of the release applies in the circumstances, the
court may find the exclusion clause unconscionable.

[62]        
In Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 112 at
para. 30, Frankel J.A.
confirmed that a party who seeks to set aside a contract because of unconscionability
must prove:

1.    
inequality in the position of the parties arising from the ignorance,
need or distress of the weaker, which left him or her in the power of the
stronger; and

2.     substantial
unfairness in the bargain.

[63]        
If those elements are present, then burden shifts to the party seeking
to rely on the contract, who must then prove the agreement was otherwise fair,
just, and reasonable. Overall, the “single question is whether the transaction,
seen as a whole, is sufficiently divergent from community standards of
commercial morality that it should be rescinded” (See: Harry v. Kreutziger
(1978), 9 B.C.L.R. 166 at 177 (C.A.)).

[64]        
The jurisprudence with respect to releases has most often involved
sporting activities that carry inherent risks of injury. In the context of
recreational sports such as zip-lining, skiing, white-water rafting, and
snowmobiling, the Court of Appeal has held that it is not unconscionable to
require a person who wishes to engage in such activities to “sign a release
that bars all claims for negligence against the operator and its employees” (See:
Loychuk, at para. 40).

  Are
there public policy grounds to find the exclusion clause unenforceable?

[65]        
The third and final line of inquiry of the Tercon analysis recognizes
the residual power of the court to decline enforcement of a release on grounds
of overriding public policy. At para. 117 in Tercon, Binnie J.
noted this power will rarely be exercised “in the interest of certainty and
stability of contractual relations”. He continued by providing examples of when
it would be appropriate to decline enforcement, such as where a party knowingly
or recklessly provides a substandard product or service resulting in public
harm. At para. 120, he concluded that “conduct approaching serious
criminality” or “egregious fraud” are “well accepted” examples where public
policy considerations may override freedom of contract. In contrast, with
respect to inherently risky recreational activities, the court at para. 46
in Loychuk found that releases for such activities do not give rise to
public policy concerns that would justify declining enforcement.

  Voluntary assumption of risk

[66]        
The doctrine of voluntary assumption of risk is captured in the maxim volenti
non fit injuria (“to the willing person, no injury is done”). It provides a
complete defence to a negligence claim. The persuasive burden lies on the
defendant, who must prove the plaintiff expressly or by implication agreed not
to hold the defendant responsible for the injury. The law on voluntary
assumption of risk was summarized in Joe v. Paradis, 2008 BCCA 57,
where, at para. 14, Mackenzie J.A. cited the decision of Lehnert
v. Stein, [1963] S.C.R. 38 at 44. Both Joe and Lehnert
quoted with approval the following passage from Glanville Williams, Joint
Torts and Contributory Negligence (1951) at 308:

It is submitted that the key
to an understanding of the true scope of the volens maxim lies in
drawing a distinction between what may be called physical and legal risk.
Physical risk is the risk of damage in fact; legal risk is the risk of damage
in fact for which there will be no redress in law. […]

To put this in general
terms, the defence of volens does not apply where as a result of a
mental process the plaintiff decides to take a chance but there is nothing in
his conduct to show a waiver of the right of action communicated to the other
party. To constitute a defence, there must have been an express or implied
bargain between the parties whereby the plaintiff gave up his right of action
for negligence.

[67]        
In Joe the court also cited the majority judgment in Hall v.
Hebert, [1993] 2 S.C.R. 159 at 173, where McLachlin J. (as she
then was) stated:

The defence of volenti is
available only if it can be established that the plaintiff, with knowledge
(objectively determined) of the risk, freely accepted it.

[68]        
McLachlin J. further noted that the volenti defence is to be
“narrowly applied”. Mackenzie J.A. writing for a unanimous court in Joe,
noted that commentators are generally critical of the doctrine in that the complete
bar to recovery of the volenti defence is inconsistent with the
apportionment of responsibility (See: Joe, at para. 16, citing Clerk
& Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006) at s. 3-103).
MacKenzie J.A. also noted that “the nominal standards of an implied waiver
of legal liability will rarely be met” (See: Joe, at para. 16,
citing Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003) at 482).
As Professor Klar writes: "It is not realistic to impose this implied
agreement upon parties who are frequently unaware of the legal niceties
surrounding these types of events, and who are not deliberating upon the
physical or legal risks of dangerous conduct" (See: Joe, at para. 16).

Discussion
/ Analysis

Issue
#1: Are the matters raised on this application suitable for summary trial?

[69]        
On this application the defendants seek to have the plaintiff’s claims
against them dismissed because the Waiver she signed legally prohibits her from
pursuing those claims and/or because she knowingly and willingly accepted the
risk of personal injury that participation in the Course entailed. In short,
the defendants seek to have the court determine the validity and enforceability
of the Waiver and whether the doctrine of volenti non fit injuria
applies in the circumstances of this case.

[70]        
In her application response filed 17 July 2014, Ms. Chamberlin
agreed that the issue of the Waiver and whether it barred her from pursuing
damages against the defendants could be resolved by summary trial. However, she
opposed having the question of whether her action against the defendants was
also prohibited on account of her voluntary assumption of the risks involved in
the Course determined by summary trial. Her opposition was based upon what she
maintained was an insufficient evidentiary record before the court and the fact
that there appeared to be questions of credibility that could not be resolved
by affidavit.

[71]        
During his submissions, counsel for Ms. Chamberlin informed the
court that the plaintiff had changed her position and was now content to
proceed with a summary trial on all of the issues raised in the defendants’
notice of application.

[72]        
Given the parties’ positions on this issue, and having reviewed the
materials contained in the application record, I am satisfied that the issues
before me can be resolved by summary trial.

Issue #2: Does the Waiver bar the plaintiff from claiming
against the defendants?

As a matter of
contractual interpretation, do the terms of the exclusion clause of the Waiver
apply to the facts of this case?

[73]        
Applying the legal framework set out in Tercon and Karroll,
the first step is to consider the construction of the Waiver itself. The
key principle of contractual interpretation is that the words excluding liability
must not be read in isolation but rather considered in harmony with the rest of
the agreement and in light of its purposes and commercial context (See: Tercon,
at para. 64.) It is clear that the purpose of the Waiver was to shift some
of the risks of the Course onto the signing party. What remains unclear is the
nature and scope of the risks that each party reasonably agreed to assume in
these circumstances.

[74]        
The Waiver Ms. Chamberlin signed is one page in length and states
at the top of the page “WAIVER OF COURSE LIABILITY”. The operative terms
of the release state:

I accept that there are risks
involved in this course’s techniques and procedures and thereby waive any and
all claims which I might have at any time have [sic], against the
[Defendants] in any manner whatsoever relating to my participation in this
Advanced Orthopaedic Manual and Manipulative Physiotherapy Course.

[75]        
The defendants argue that the language of the Waiver fully extinguishes
the right of the plaintiff to bring any action against them. They submit that
the Waiver is clear and unambiguous in this regard, using “simple,
easy-to-understand language” rather than “complicated, dense legal jargon.”
They say the simplicity of the Waiver is a fact that supports its
enforceability. In advancing this position, counsel for the defendants cites Arnold
v. Bekkers Pet Care Inc., [2010] O.J. No. 2153 (Ont. S.C.); Atlantis
Marine Inc. v. Beaudoin Holdings & Management Ltd., 2003 ABPC 77; Redshaw
v. CCI Thermal Technologies Inc., 2010 AHRC 2; and Marathon Canada
Limited v. Enron Canada Corp, 2008 ABQB 408.

[76]        
Ms. Chamberlin, in response, submits that the release in the Waiver
is ambiguous and nonspecific. She contends that clear and precise language is
required if the defendants wish to absolve themselves of liability for their
own negligence. In support of this argument, counsel for Ms. Chamberlin
relies upon a number of authorities including Gallant v. Fanshawe College of
Applied Arts and Technology, [2009] O.J. No. 3977 (Ont. S.J.). In Gallant
the plaintiff was a participant at an introductory motorcycle riding course. The
plaintiff had never previously ridden a motorcycle. On the first day of the
course, the plaintiff was presented with and signed a waiver that indicated:

I … agree to release [the
defendants] … from all responsibility, property damage, bodily injury, costs
and expenses, or claims of every nature and kind arising from, or in
consequence of my participation in the motorcycle training course …

[77]        
Ms. Gallant was seriously injured while participating in the course.
Litigation ensued and the defendants sought to have her claim dismissed on the
grounds that the waiver was a complete defence. The court denied the
defendants’ application. In doing so, it found that the waiver as drafted was
not broad enough to absolve the defendants of responsibility for their own
negligence. Similarly, Ms. Chamberlin says that the Waiver she signed was
not sufficiently broad or clear in its language to protect the defendants in
the present case. To underscore the point, counsel for Ms. Chamberlin
notes that the word “negligence” is nowhere to be found in the Waiver.

[78]        
In reply, the defendants rely on Delaney Estate v. Cascade River
Holidays Ltd., [1983] B.C.J. No. 476 (C.A.), as a case where a waiver with
somewhat similar wording to the one in the present case was held to be enforceable.
In Delaney, the estate of a man who drowned on a white-water rafting
excursion claimed damages against the rafting company. The waiver that the
deceased had signed prior to embarking upon the excursion, reproduced at para. 19,
provided as follows:

DISCLAIMER CLAUSE: Cascade
River Holidays Ltd. is not responsible for any loss or damage suffered by any
person either in travelling to the location of the trip, before, during or
after the trip, for any reason whatsoever including negligence on the part of
the company, its agents or servants.

AGREEMENT: I agree to assume
all risks involved in taking the trip including travelling before and after,
and agree to pay the cost of any emergency evacuation of my person and
belongings that may become necessary. I agree to Cascade River Holidays Ltd.
its agents and servants relieving themselves of all liability for losses and
damages of all and every descriptions.

[79]        
In my view, Delaney is distinguishable from the present case for
at least two reasons. First, the waiver in Delaney was more clearly
drafted and it specifically referenced negligence. Second, given the nature of
the white-water rafting activity, a reasonable person would expect that in
signing the document, he or she was assuming full responsibility for any
injury. The defendants in the present case are correct to emphasize that at
para. 38 Macfarlane J.A., writing for the majority of the court, held
that a waiver must be interpreted in light of the “whole purpose of the
relationship between the deceased and the corporate respondent”. Later in that
same paragraph Macfarlane J.A. observed that the purpose of the
contractual relationship in that case was “an exciting and thrilling challenge
of the power of the Fraser River in the Canyon”. In the present case, the
defendants say that the purpose of the relationship was not for
Ms. Chamberlin to receive physiotherapy as a patient from the CPA or the Course
instructors. I agree. The purpose of the relationship was for Ms. Chamberlin
to obtain continuing education as a reasonably new member of her professional
organization. An “exciting and thrilling challenge” this was not. Ms. Chamberlin
says that she expected the course to be provided in a safe and well-structured
learning environment, and this expectation, in my opinion, was not
unreasonable. While it is one thing to expect Ms. Chamberlin to do her
part and bring concerns about her body to the attention of the Course instructors
and practice partners, it is quite another to construe the relationship in this
case as one where the nature of the activity was such that all risks were to be
wholly shouldered by the Course participants.

[80]        
The defendants also cite Davis v. Robertson, [2000] O.J. No. 1712
(Ont. S.J.), where a waiver also similar to the one in the present case was
found to be enforceable. In Davis, the plaintiff’s sailboats were
damaged while stored at a non-profit boating club. The plaintiff had signed a one-page
waiver that did not expressly reference negligence. Reproduced at para. 6
of the Davis decision, the waiver indicated that the defendants would “…
not be held responsible for … loss or damage to the personal property, however
caused, during any part of the … storage … of any vessel”. While there is no reference
to negligence in the waiver, at para. 13 of his judgment Lederman J. concluded
that the intention to encompass negligence was otherwise “adequately expressed”.
He also noted that there was no expectation from the contracting parties that
the defendant boating club would insure its member’s boats. The court in Davis
also concluded that the parties must have contemplated that any risk flowing
from loss or damage would be allocated to the boat owners’ respective insurance
companies. For these reasons, I find the language of the waiver in Davis,
when read in the context of the activity in question and the parties’
relationship, bears little resemblance to the language in the Waiver and the
parties’ relationship in the present case. In my view, unlike Davis, the
intention to encompass negligence has not been otherwise adequately expressed
in the Waiver.

[81]        
Clarke v. Action Driving School Ltd., [1996] B.C.J. No. 953 (S.C.)
is another case where the waiver in question did not specifically use the word “negligence”.
The plaintiff, Mr. Clarke, was injured in a motorcycle riding lesson at
the defendant’s driving school. The waiver he had signed released the defendant
“… from all responsibility of … bodily injury … and claims of every nature and
kind howsoever arising from or in consequence of such student’s participation
in any of the training courses” (See: para 2). MacKenzie J. (as she
then was) found that the use of the words “howsoever arising” contemplated
negligence. The plaintiff, however, argued that the clause should be strictly
construed, relying on Smith v. Horizon Aero Sports Ltd., [1981] B.C.J.
No. 1861 (S.C.), where a similar waiver was found not to bar the plaintiff’s
claims for injuries suffered in a parachute jump. The release in Smith
waived “… any claim …” which “… might arise out of or in any manner … connected
to the undersigned’s jumping” (See: Smith at para. 25). In finding
in favour of the defendant, the court distinguished the case on the
basis that the phrase “howsoever arising” or similar language was not found in
the waiver in Smith.

[82]        
In my opinion, the Waiver Ms. Chamberlin signed falls somewhere
between the language of the waivers in Smith and Clarke. It
broadly refers to “any and all claims which I might have at any have [sic]
in any manner whatsoever relating to my participation”. However, unlike Clarke,
it does not refer to “claims of every nature and kind howsoever arising”, and
unlike the waiver in Smith, it includes the additional words “all” and
“whatsoever”. In my view, arriving at a conclusory interpretation solely on the
basis of these slight differences would be unduly formalistic. The fact that
courts have diverged in the enforcement of similarly worded waivers says more
about differences in the factual matrices of these cases than any differences
in the contracts themselves.

[83]        
In my opinion, even when applying a literal meaning to the Waiver in
this case, ambiguity remains. Despite the generality of phrases such as “any
and all claims”, “I might have at any time”, and “in any manner whatsoever”, I
am not convinced that the Waiver, when read in its entirety, is sufficiently
clear or specific to encompass negligence. The Waiver mentions that there are
“risks” involved in the Course’s “techniques and procedures”, but it does not identify
or provide examples of those risks, or even specify the nature of the risks or their
degree of severity. It is therefore unclear what risks the signing party would
be accepting to bear by waiving “any and all claims” against the defendants. In
my view, negligence does not necessarily fall within the reasonable
contemplation of the risks posed by the “techniques and procedures” of a
continuing education course in physiotherapy. The phrase “in any manner
whatsoever relating to my participation in this [course]” is, in the context of
this case, similarly ambiguous. Despite the generality of the first portion of
the clause, the second portion may be interpreted consistently with the
instruction that participants are responsible for their own bodies. In my
opinion this responsibility does not necessarily extend to the negligent
conduct of others beyond the participants’ control. In other words, without
specific reference to the negligence of others, a literal reading of this
clause suggests Ms. Chamberlin has not waived her right to bring an action
“unrelated” to her participation in the course. A claim in negligence against
an instructor, the CPA, or a fellow participant is more properly construed as a
claim “relating” to the respective defendant’s instruction, organization, or
participation, not Ms. Chamberlin’s participation. As a result, in my
view, it cannot be said that the Waiver is as plain and clear as the defendants
suggest.

[84]        
In my opinion, it is quite plausible and reasonable to construe “any and
all claims” and “relating to [Ms. Chamberlin’s] participation in the
course” consistently with the plaintiff’s interpretation of the Waiver and the
supporting extrinsic evidence. Ms. Chamberlin was told that she was
responsible for her own body. She did not infer from this explanation that she
was agreeing to waive or abandon her right to sue in negligence. Instead, she
says that she understood the Waiver as referring to pain or soreness resulting
from the physical manipulation of her joints. Combined with the fact that the Waiver
was explained to the participants with reference to the physical rather than
legal risks of the Course, Ms. Chamberlin’s interpretation does not seem
objectively unreasonable. In my view, having regard to the language of the Waiver
and the factual circumstances in which it was proffered, explained and signed, it
is not sufficiently clear or specific such that it necessarily encompasses
negligence. Rather, I find the Waiver admits of ambiguity in this regard.
Applying the principle of contra proferentem, the ambiguity should be
resolved against its drafters and in favour of Ms. Chamberlin.

Was the plaintiff otherwise bound
by the terms of the release?

[85]        
Even if the Waiver were to be given the interpretation advocated by the
defendants, the issue still remains whether it was in the specific
contemplation of Ms. Chamberlin that in signing the document she was
waiving her right to sue in negligence. As noted in Karroll, a party
tendering a document for signature is generally not required to take
steps to apprise the signing party of onerous terms or to ensure that the party
reads and understands them. However, this general rule does not apply where the
party tendering the document knew or had reasons to know that the signing party
was under a mistake as to its terms. The defendants frame this exception as a
question of “whether a reasonable person, in the circumstances of this case,
would know that the plaintiff did not intend to agree to a liability release.”
They say that a reasonable person would indeed conclude that Ms. Chamberlin
agreed to the waiver of her right to sue because she signed the document.
However, in my view, this argument suffers from a deficiency akin to the
fallacy of composition. It infers that because something might be true of the
whole, it must also be true of its parts. Just because Ms. Chamberlin may
have intended to agree to a liability release does not necessarily mean that
she agreed to the specific term of waiving her right to sue in negligence.
Indeed, Ms. Chamberlin concedes that she was bound by the terms of the Waiver
as she understood them, but disagrees that she was bound according to the broad
interpretation proposed by the defendants. As McLachlin C.J.S.C. noted at
para. 25 in Karroll:

[25]      … The effect of the
exclusion clause in relation to the nature of the contract is important because
if it runs contrary to the party’s normal expectations it is fair to assume
that he does not intend to be bound by the term.

[86]        
Given the circumstances surrounding the signing of the Waiver, I am of
the view that a clause excluding liability for negligence would run contrary to
the normal and reasonable expectations of the Course participants in this case.
Extrinsic evidence from both sides indicates that the physical rather than
legal risks of the Course were emphasized to the participants.

[87]        
Further, while the defendants submit there is nothing in Ms. Chamberlin’s
evidence to indicate she was confused by the Waiver, her assertion that the document
was simply presented as a form to sign and return is supported by the fact that
she did not complete, nor was she asked or told to complete, the entire
document. The defendants, in response, say that the plaintiff’s handwriting on
the Waiver is “very neat”, which suggests she was not rushed. Both facts could
be true: Ms. Chamberlin may not have been rushed in signing the document,
but she may also still not have fully understood it or been cognizant of the
specific legal rights she was been asked to waive. In any event, Ms. Chamberlin
says that she was never told about the meaning of the Waiver, and there is no
evidence before me to contradict that assertion. More to the point, there is
nothing in the evidence that indicates the participants were informed that by signing
the Waiver they were assuming all of the risks, both physical and legal, associated
with their participation in the Course. Rather, the emphasis on participants
being “responsible for their own bodies”, particularly in the context of
physiotherapy, can reasonably take on a more circumscribed meaning as
cautioning the participants about the Course’s physical risks. It is therefore
not surprising that Ms. Chamberlin understood the Waiver more narrowly
than the defendants. In my view, even if the defendants’ interpretation of the Waiver
is accepted, it would not be unreasonable to conclude that Ms. Chamberlin
would have been under a mistake as to its terms.

[88]        
Notwithstanding what Ms. Lee and Mr. Cope had to say about
their identical understandings of the Waiver and its legal implications, I am
of the opinion that a reasonable participant at the Course would not have understood
or expected that he or she was agreeing to such onerous legal risks,
particularly given the general language of the Waiver and its lack of specificity
with respect to negligence. Ms. Chamberlin contends that she understood
the Waiver to be similar to waivers used in her practice, which she says
“prevent any lawsuits for soreness or minor pain after treatment.” The
circumstances of this case are not analogous to recreational sporting
activities like skiing, racing, white water rafting, zip-lining, or scuba
diving, where, given the inherent risks and social expectations surrounding the
allocation of risk, a willing participant in such activities reasonably expects
that he or she assumes all risks of injury.

[89]        
By contrast, in the context of a physiotherapy training course, I find
it unlikely that a participant would expect that it was a condition of his or
her participation to assume personal responsibility for the negligence of the
professional organization and its agents. While the defendants argue that Ms. Chamberlin,
a registered physiotherapist, “knew or ought to have known” of the Course’s
potential risks, I fail to see how the risk of an instructor breaching his or
her professional standard of care would be one of the potential risks that a
participant would be mindful of at the time a waiver was signed. This is
particularly so given the lack of specificity in the release itself. Therefore,
even assuming the defendants’ generous interpretation of the Waiver is correct,
the CPA or the instructors ought to have brought this interpretation to the
attention of Ms. Chamberlin, as it cannot reasonably be said to have been
in her specific contemplation at the time the release was given.

[90]        
The plaintiff has not raised the second or third lines of inquiry
articulated in Tercon. That is, the plaintiff has not argued that there
is an element of unconscionability that invalidates the Waiver or that there
are public policy grounds to refuse to enforce the Waiver. In light of this, there
is no need for me to address these issues.

[91]        
In my opinion the defendants’ application to dismiss the plaintiff’s
action on the ground that the Waiver provides them with a complete defence
cannot succeed.

Issue #3: Does the doctrine of volenti
non fit injuria bar the plaintiff from
claiming against the defendants?

[92]        
The parties agree that this issue can be decided based solely on the
evidentiary record before the court.

[93]        
The defendants point to Ms. Chamberlin’s own affidavit evidence,
where she says she had a family history of hypermobility in her shoulders.
Moreover, the defendants note that Ms. Chamberlin says she was aware that
the Course was hands-on, involving physical manipulation of her body. On the
basis of this evidence, the defendants submit Ms. Chamberlin “voluntarily
assumed the risk of injury due to negligence or breach of contract when she
forged ahead” in the Course.

[94]        
In my opinion, while it is true that Ms. Chamberlin was informed
that she was responsible for her own body, and put on notice that it was up to
her to articulate her concerns to her instructors and the other participants,
these facts do not amount to a voluntary assumption of risk on her part. The
defendant’s position on this point may more properly be an assertion of
contributory negligence on Ms. Chamberlin’s part, or otherwise a consideration
that goes to the issue of whether or not there has been a breach of the
requisite standard of care. The defendants have not pointed to any persuasive
evidence, aside from the plaintiff’s execution of the Waiver itself, that would
indicate Ms. Chamberlin expressly or by implication agreed not to hold the
defendants responsible for the injury. It is useful at this point to once again
quote the following passage of Williams in Joint Torts and Contributory
Negligence (1951) at 308, cited in Joe at para. 14:

It is submitted that the key
to an understanding of the true scope of the volens maxim lies in
drawing a distinction between what may be called physical and legal risk.
Physical risk is the risk of damage in fact; legal risk is the risk of damage
in fact for which there will be no redress in law. […]

To put this in general terms, the
defence of volens does not apply where as a result of a mental process
the plaintiff decides to take a chance but there is nothing in his conduct to
show a waiver of the right of action communicated to the other party. To
constitute a defence, there must have been an express or implied bargain
between the parties whereby the plaintiff gave up his right of action for
negligence. [Emphasis added.]

[95]        
The most compelling evidence that the defendants can provide in this
regard is that Ms. Chamberlin deposed that Ms. Belot, after
re-aligning her neck, “joked that I had signed the waiver.” The argument of the
defendants is that, because Ms. Chamberlin chose to continue with the practical
sessions even after Ms. Belot made this comment to her, her conduct
communicated a waiver of her right of action. In my view, this evidence fails
to establish the volenti defence. It does not prove Ms. Chamberlin’s
continued participation communicated an implied agreement that she had
voluntarily assumed all liability for her injuries.

[96]        
Consequently, I am of the view that the defendants’ application for
summary dismissal of Ms. Chamberlin’s action on the basis of volenti should
not succeed.

Issue #4: Should Ms. Chamberlin’s
claim against the PABC be dismissed because it had no role in the Course?

[97]        
The PABC maintains it was not involved with the organization or administration
of the Course and therefore irrespective of the court’s ruling on the Waiver
and the volenti defence, the plaintiff’s action against it should still
be dismissed. This position was clearly articulated in the defendants’ notice
of application and the written submissions of counsel for the defendants. The
plaintiff’s application response did not specifically address this portion of
the notice of application.

[98]        
When counsel for the defendants began his submissions on the first day
of the hearing, counsel for Ms. Chamberlin interjected and informed the
court that the plaintiff did not take issue with what the PABC was seeking.
More specifically, counsel for Ms. Chamberlin advised that he had
instructions to “withdraw the action against the PABC”. I took that to mean the
plaintiff would be formally discontinuing her claim against the PABC, pursuant
to Rule 9-8.

[99]        
Given plaintiff’s counsel’s concession, counsel for the defendants made
no further submissions on the issue of the plaintiff’s claim against the PABC
being dismissed.

Conclusion

[100]     The
defendants have failed to persuade me that the Waiver provides a valid and
complete defence to the plaintiff’s claims against them. Furthermore, I am not satisfied
that the defendants have met their evidentiary burden to prove that the
plaintiff voluntarily and knowingly assumed the risks posed by her
participation in the Course such that the doctrine of volenti non fit
injuria bars her from pursuing the defendants for damages.

[101]     The
plaintiff has declared her intention to discontinue her claim against the PABC.
As a result of that, I did not hear submissions on the question of whether that
claim should be dismissed. I expect that the plaintiff has or will be complying
with Rule 9-8 and that a filed notice of discontinuance has or will be
served on all of the parties.

Order

[102]     On the basis
that the plaintiff’s action against the PABC has or will be formally discontinued
and that in the result the PABC is no longer a defendant in this action, the
application of the remaining defendants for a summary dismissal of the
plaintiff’s action against them is denied.

[103]     The
parties have leave to apply in the event there is a need to further address
anything in relation to the plaintiff’s action against the PABC, including the
status of that action.

[104]     If the
parties wish to address the issue of costs of this summary trial, they must so
inform the court within 30 days of the date of these reasons. Otherwise, costs
will be in the cause.

“G.R.J. Gaul J.”