Stevens v. Oyster Bed | Jun 28, 2022

SUPREME COURT OF PRINCE EDWARD ISLAND

Citation: Stevens v. Oyster Bed, 2022 PESC 25

Date: 20220628

Docket: S1-GS-26743

Registry: Charlottetown

Between:

Sharon Stevens in her own name and as Personal Representative

of the Estate of Robert Michael Russell Stevens

Plaintiff

(Respondent)

And:

101322 P.E.I. Inc., a body corporate doing business under

Oyster Bed Speedway, Maritime Pro Stock Tour Ltd., a body corporate,

and Shaw’s Towing Service (1984) Ltd., a body corporate

Defendants

(Moving Parties)

Before: The Honourable Chief Justice Tracey L. Clements

Appearances:

Virginia Gillmore and Mathieu Picard, for the Plaintiff (Respondent)

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Kevin J. Kiley and Ryan McCarville, for the Defendants (Moving Parties) 101322 P.E.I.

Inc., doing business under Oyster Bed Speedway and Maritime Pro Stock Tour Ltd.

Steven A. Forbes, for the Defendant (Moving Party) Shaw’s Towing Service (1984)

Ltd.

Place and date of hearing

-

Charlottetown, Prince Edward Island

February 10, 2021

Date of additional submissions

Place and date of written decision

February 24, March 3, November 30,

December 23 and 30, 2021

-

Charlottetown, Prince Edward

Island

June 28, 2022

SUMMARY JUDGMENT – whether genuine issue requiring a trial – claim under

Fatal Accidents Act – whether the waivers and release documents bar the

dependents’ claim – whether the volenti defence bars the dependents’ claim.

The late husband and father was competing at a stock car race at Oyster Bed

Speedway in Prince Edward Island. He was involved in an accident and ultimately

passed away. The Statement of Claim characterizes the operations after the accident

as a “botched rescue operation.” The surviving spouse has commenced an action

against a number of Defendants on behalf of the deceased’s dependents and

beneficiaries.

All Defendants made a motion for summary judgment arguing there is no genuine

issue requiring a trial and urging the court to dismiss the action. There are two

primary issues before the court. The first issue is whether the dependents’ claim is

barred by virtue of the waivers and release documents. The second – and primary –

issue is whether the volenti defence (voluntary assumption of risk) applies and in

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particular, whether the volenti defence acts as a bar to the dependents’ claim under

the Fatal Accidents Act.

The court concludes there is no genuine issue requiring a trial in relation to the

waivers and release documents. The waivers and release documents signed by the

deceased do not bar the dependents’ claim against the Defendants. There is

likewise no genuine issue requiring a trial in relation to the volenti defence. The

volenti defence – even if applicable to the deceased – does not bar the dependents’

claim against the Defendants.

The court declines to grant judgment in favour of the Defendants.

STATUTES REFERRED TO: Fatal Accidents Act, RSPEI 1988, c. F-5; Survival of

Actions Act, RSPEI 1988, c. S-11; Occupiers’ Liability Act, RSPEI 1988, c. O-2;

Interpretation Act, RSO 1990, c I.11; Interpretation Act, RSPEI 1988, c I-8;

Judicature Act, RSPEI 1988, c J-2.1

RULES REFERRED TO: Civil Procedure Rules, Rules 20, 30, 26, 25 and 57

CASES CONSIDERED: Hyrniak v. Mauldin, 2014 SCC 7; McQuaid v. Government

of P.E.I., 2017 PECA 21; Mallett v. Richard, 2018 PESC 50; Royal Bank of Canada v.

Trainor, 2017 PESC 13; RBC v. MJL Enterprises & Ors., 2017 PECA 10; O’Halloran v.

Watterson, 2015 PESC 3; Ellis v. MacPherson, 2005 PESCAD 10; Collins v. Burge,

1977 CarswellPEI 17 (CA); Johnston v. Anderson (1974), 5 Nfld. & P.E.I. Reports 198

(CA); Barrett v. Paquet, 1981 CarswellPEI 58 (SC); Basarsky v. Quinlan, 1971

CarswellAlta 99 (SCC); Mirshahi v. Suleman, 2008 CarswellOnt. 7534; Elwin v. Nova

Scotia Home for Colored Children, 2013 NSSC 411; Canada (A.G.) v. Lameman,

2008 SCC 14; Donovan v. Queens County Residential Services Inc., 2016 PECA 1;

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation &

Highways), 2010 SCC 4; Isildar v. Kanata Diving Supply, 2008 CarswellOnt 3580;

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Dyck v. Manitoba Snowmobile Assn. Inc., [1985] 1 S.C.R. 589; Crocker v. Sundance

Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; Karroll v. Silver Star Mountain

Resorts Ltd., 1988 3094 (BC SC); Loychuk v. Cougar Mountain Adventures

Ltd., 2012 BCCA 122; Chamberlin v. Canadian Physiotherapy Assn., 2015 BCSC

1260;Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co., 1997

CarswellOnt 1894 (CA); Quilichini v. Wilson’s Greenhouse & Garden Centre Ltd.,

2017 SKQB 10; Sibley v. British Columbia Custom Car Assn., 2005 BCSC 509; Arif v.

Li, 2016 ONSC 4579; Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460;

Niedermeyer v. Charlton, 2014 BCCA 165; Lafontaine (Guardian ad litem of) v.

Prince George Auto Racing Assn., 1994 CarswellBC 2387; Milina v. Bartsch, 1985

CarswellBC 13; Cudmore Estate v. Deep Three Enterprises Ltd., 1991 CarswellOnt

2191(G.D.)

Clements, C.J.:

I.

Overview

[1]

Have the Defendants demonstrated there is no genuine issue requiring a trial

and that the Plaintiff’s claim under the Fatal Accidents Act, RSPEI 1988, c. F-5 (the

“FAA”) should be dismissed?

[2]

While competing in a stock car race at Oyster Bed Speedway in Prince Edward

Island, the late Robert Michael Russell Stevens (the “deceased”) was involved in an

accident. All parties are in agreement that the accident resulted in the deceased’s

vehicle coming to rest upside down (i.e. on its roof).

[3]

The key area of disagreement amongst the parties is what occurred after the

accident. The Plaintiff alleges that while the vehicle was on its roof the Defendants

attempted to release the deceased from his harness by cutting the harness, whereas

the Defendants allege the deceased released his own safety harness. The Defendants

therefore allege that it was the deceased’s own action which caused his death. The

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theory of the Plaintiff’s case is set out in the Plaintiff’s factum filed on the summary

judgment motion:

[1] On August 3, 2013, Michael Stevens was involved in a stock

car racing accident at the Oyster Bed Speedway in Oyster Bed,

Prince Edward Island (hereinafter “the accident”). Following the

accident, Michael’s race car came to a rest on its roof. Michael

survived the crash uninjured, but because of a delayed,

disorganized, and ill-equipped rescue effort, he was trapped in

the car upside down for a long period of time. Someone

removed his helmet and cut the belts on his HANS device and

seat belt. He could not have done it himself. As a cumulative

result of various factors outside his control, he died from

positional asphyxia.

[4]

In broad strokes, the Plaintiff alleges the deceased’s death was caused by the

Defendants’ “botched rescue operation.”

[5]

The named Plaintiff, Sharon Stevens, is the surviving spouse of the deceased

and the personal representative of the deceased’s Estate.

[6]

By Statement of Claim issued July 31, 2015, the Plaintiff commenced an action

against the following Defendants:

1.

101322 PEI Inc., a body corporate doing business under Oyster Bed

Speedway (“Oyster Bed Speedway”);

2.

Maritime Pro Stock Tour Ltd., a body corporate (“Maritime Pro Stock

Tour” or “Tour”); and,

3.

Shaw’s Towing Service (1984) Ltd., a body corporate (“Shaw’s”).

[7]

Oyster Bed Speedway is the owner of the racetrack where the accident

occurred. Maritime Pro Stock Tour is in the business of promoting automobile and

motorcycle racing events. The evidence before the court is that there were two

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trucks owned by Shaw’s present at Oyster Bed Speedway at the time of the incident

and that both were used to respond to the accident.

[8]

The Plaintiff seeks damages for the dependents and beneficiaries of the

deceased, including herself (as surviving spouse) and two children pursuant to the

FAA. The Statement of Claim originally sought damages for the Estate under the

Survival of Actions Act, RSPEI 1988, c. S-11 (the “SAA”). However, there were

developments including a discontinuance under the SAA, and what remains is the

claim under the FAA.

[9]

The Defendants seek summary judgment pursuant to Rule 20 of the Rules of

Civil Procedure (the “Rules”). The Defendants argue there is no genuine issue

requiring a trial and urge the court to dismiss the Plaintiff’s action. In broad strokes

the Defendants argue:

1.

The waivers and release documents signed by the deceased bar the

dependents’ claims under the FAA (and this is referred to as the waiver

derivative issue).

or

2.

The deceased voluntarily assumed the risks of the activity; because of

this, there is no duty of care owed to him and in the absence of a duty of

care owed to the deceased there can be no “wrongful act” under the FAA;

and, in

the absence of a wrongful act, the FAA is not triggered (and this

as the volenti issue).

is referred to

[10] For the purposes of this summary judgment motion, I am not called upon to

make any findings in relation to the accident, what occurred after the accident

(including in relation to the rescue operations), nor am I called upon to make a

determination as to whom – if anyone – cut or released the deceased’s harness or

seatbelt. I do pause to observe the obvious: on a human level this is tragic – the loss

of a young husband and father.

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[11] The Notice of Motion of the Defendants Oyster Bed Speedway and Maritime

Pro Stock Tour (the “Speedway Defendants”) articulates several grounds for the

motion - namely, that the deceased executed documents in which he:

1.

2.

assumed all risks associated with his participation in the racing event;

provided the Defendants with a full and final release and waiver of

liability

and all claims arising from his participation in the racing event;

3. agreed, on behalf of himself, as well as his heirs, personal

representatives

injury, costs or

racing event; and

and next of kin not to sue the Defendants for any loss,

damages caused or arising from his participation in the

4.

agreed, on behalf of himself, as well as his heirs, personal

representatives

and hold the

and next of kin to indemnity the Defendants and to save

Defendants harmless from any claim arising from his

racing event.

participation in the

[12] The Defendant Shaw’s likewise advances two key arguments: 1) the waivers

and release documents bar the dependents’ claim; and 2) the deceased voluntarily

assumed the risks of the activity he was engaged in, and given this there is no

“wrongful act” and in the absence of a wrongful act, the FAA is not triggered.

[13] Certainly the Plaintiff argues otherwise. Counsel highlights that while the

deceased signed a waiver, the deceased’s dependents did not. Counsel argues the

waiver does not bar the dependents’ claim and also argues that the volenti maxim

likewise has “no application” to the claim advanced by the dependents. The Plaintiff

seeks a dismissal of the motions for summary judgment and a declaration that the

dependents’ FAA action against the Defendants is “unaffected” by the waiver and

the volenti arguments. Plaintiff’s counsel argues that liability against the Defendants

“should be determined on its merits by the usual rules of evidence.”

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II.

Pleadings/Filings

[14] I will first provide some brief highlights of the pleadings, including

amendments, as well as highlights of the materials filed on the summary judgment

motion.

[15] The Statement of Claim alleges the deceased was involved in an accident

during the 98^thlap of a 100 lap race which caused his stock car to flip onto its roof

and remain in that position while the deceased was “trapped inside.” The Statement

of Claim advances various claims of negligence against the Defendants, including

that the Defendants attempted to release the deceased from his harness by “cutting

a piece of his harness.”

[16] In the Statement of Defence of Shaw’s, Shaw’s advances a number arguments

including that the deceased’s death was caused by his sole or partial negligence,

including the allegation that the deceased chose to release his harness which

resulted in his death. In the alternative, Shaw’s argues that the deceased voluntarily

assumed the risk (both “legal and physical”) and chose to participate in the race.

Shaw’s advances further alternative arguments, including against the Speedway

Defendants.

[17] I note that while the issue of waivers and release documents featured

prominently in the parties’ written submissions and oral argument, there is no

specific reference to a waiver in the Statement of Defence filed by Shaw’s. This is a

mere observation and not a criticism, and I appreciate that pleadings are usually

prepared at the early stages of matters and obviously well before the exchange of

Affidavits of Documents. Plaintiff’s counsel expressed during the hearing that she is

not concerned about this “technical” issue and certainly is not suggesting any

surprise or prejudice arising from the arguments advanced by Shaw’s on the

summary judgement motion.

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[18] The Speedway Defendants advance a number of arguments in their Statement

of Defence, including that the deceased’s death was caused by his own negligence.

The Speedway Defendants allege that following the accident the deceased was

uninjured; released his safety harness while his vehicle was at rest on its roof; and,

that this caused him to fall into a position which cut off his air supply which in turn

caused his death. They also allege the deceased signed a waiver and release form

whereby he agreed to release and hold harmless Oyster Bed, Maritime Pro Stock

Tour and others. In the alternative, the Speedway Defendants allege the deceased’s

death was caused by the sole or partial negligence of Shaw’s.

[19] Shaw’s has crossclaimed against the Speedway Defendants and the Speedway

Defendants have crossclaimed against Shaw’s.

[20] In support of the summary judgment motion, the Speedway Defendants have

filed a Notice of Motion; supporting affidavits (Kenneth Cunning; Gary Ford;

Stephanie Duffy; and, Robbie MacLean) and a Motion Record (including Factum,

Authorities and draft Order). The Defendant Shaw’s has likewise filed a Notice of

Motion and supporting affidavit (Randall MacKinnon) as well as a Motion Record

(including Factum, Authorities and draft Order).

[21] The Plaintiff filed responding materials including: three affidavits, namely, of

Robert Stevens (father of the deceased); the Plaintiff Sharon Stevens; and Véronique

Keays-Dubé (paralegal at the Plaintiff’s law firm); Factum; and, a “Record” which

includes Authorities and draft Order.

[22] At the hearing, counsel confirmed the various affiants had not been examined

and in addition, no parties sought to examine any of the affiants during the course

of the summary judgment hearing. I make this observation particularly in the

context of the fairly expansive powers of the court on a summary judgment motion

and in particular as articulated in Rule 20.04(5), including the power to weigh the

evidence; evaluate the credibility of a deponent; and, draw any reasonable inferences

from the evidence.

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[23] As noted, the Statement of Claim originally relied on both the FAA as well as

the SAA. At the commencement of the summary judgment hearing, counsel advised

the court that the parties had consented “in principle” to the Plaintiff discontinuing

the SAA claim. Counsel requested the court essentially set aside the SAA claim and

proceed with the summary judgment hearing only in relation to the dependents’

FAA claim. I understand there were some intervening events which impacted on the

subsequent filings but nevertheless on May 26, 2021, the Plaintiff filed a Notice of

Discontinuance and Consent Dismissal Order dismissing the Plaintiff’s SAA claim

against the Defendants. As will be addressed, there were subsequent developments

including further case management and additional filings, including with respect to

the occupiers’ liability regime. Nevertheless, in late November 2021, the Plaintiff

filed an Amended Statement of Claim, essentially removing references to the SAA.

III.

Analysis

[24] In this section, I will first address a preliminary issue raised by Shaw’s –

namely, concerns about a number of the exhibits attached to one of the affidavits

filed by the Plaintiff. I will then provide an overview of the law of summary

judgment, including whether I have a sufficient record to determine the substantive

issues on the motion, followed by some highlights of the fatal accidents regime. I

will then address the potential applicability of the occupiers’ liability regime,

notwithstanding the Occupiers’ Liability Act, RSPEI 1988, c O-2 (the “OLA”) is not

specifically pleaded in the Statement of Claim. Finally, I will then deal with the two

substantive issues articulated by the parties: 1) the waiver or derivative issue; and 2)

the volenti issue.

1. Preliminary Issue - Exhibits attached to an affidavit

[25] Counsel for Shaw’s raised some concerns about the exhibits attached to the

affidavit of the paralegal Ms. Keays-Dubé. The exhibits consist of: 1) pleadings; 2)

the parties’ Affidavits of Documents; 3) Island EMS documents; 4) a variety of

photographs; 5) statements; and, 6) Department of Justice Canada (RCMP) file.

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[26] Counsel raises issues of admissibility and relevance in relation to a number of

these documents. In particular, counsel references Rule 30.03(6) which provides that

an Affidavit of Documents shall not be filed “unless it is relevant to an issue on a

pending motion or at trial.” Counsel for Shaw’s has no difficulty with the inclusion

of the Island EMS documents, the photographs and the RCMP file. Counsel does

however take issue with inclusion of the various statements, noting that they are

hearsay and are not admissible. Counsel also takes issue with the inclusion of the

various Affidavits of Documents and suggests the court should not consider those

documents.

[27] Counsel for the Speedway Defendants suggests as well that a multitude of the

documents filed by the Plaintiff are not relevant given the issues before the court on

the summary judgment motion.

[28] Plaintiff’s counsel readily acknowledges she has filed a multitude of

documents, as she was speculating about whether the court would essentially “delve

into” the liability issue. However, Plaintiff’s counsel concedes that given the more

narrow issues before the court on the summary judgment motion, these documents

are not needed. The issues before me are well defined and I will not be making a

finding on the liability question (i.e. which actions caused or contributed to the

deceased’s death) and therefore I am not considering the various documents in

which the Defendants have concerns including the statements and documents in the

Affidavit of Documents.

2. Law – Summary Judgment

[29] I will now provide some highlights of the law applicable to summary

judgment motions, including Rule 20 as well as some case law. Portions of Rule 20

are reproduced in the Appendix. I will also consider whether I am satisfied it is

appropriate to determine the issues before me within a summary judgment motion.

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[30] While all parties addressed the applicable law in their written submissions,

including Rule 20 as well as case law, this area was not addressed significantly in

oral submissions, nor was there a need to do so.

[31] Either party may make a motion for summary judgment. Pursuant to Rule

20.01(3), a defendant may make a motion for summary judgment, with supporting

affidavit material or other evidence, to dismiss all or part of the claim as set out in a

statement of claim.

[32] Evidence on summary judgment motions is contemplated in Rule 20.02 and in

particular the use of affidavits. As noted, all parties – the Speedway Defendants, the

Defendant Shaw’s and the Plaintiff – have all filed affidavits and there is significant

affidavit evidence before me. I note in particular the obligation on a responding

party, in the face of a summary judgment motion, as articulated in Rule 20.02(2).

This subrule provides that in response to affidavit material or other evidence

supporting a motion for summary judgment, the responding party – in this case the

Plaintiff – may not rest solely on the allegations or denials in the Plaintiff’s

Statement of Claim. Rather, the Plaintiff must set out, in affidavit material or other

evidence, specific facts showing that there is a genuine issue requiring a trial.

[33] The potential disposition of a motion is addressed in Rule 20.04. The Rule is

clear that the court is obligated to grant summary judgment if the court is satisfied

there is no genuine issue requiring a trial with respect to a claim or defence.

[34] Also of note is Rule 20.04(3) which provides that where the court is satisfied

that the only genuine issue is a question of law, the court may determine the

question and grant judgment accordingly. Pursuant to Rule 20.04(5), the scope of

the power of the court on a summary judgment motion is fairly broad, and the court

may weigh evidence, evaluate the credibility of a deponent and draw reasonable

inferences from the evidence.

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[35] The leading decision on summary judgment is the decision of the Supreme

Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7 (“Hyrniak”).

[36] In Hyrniak, the Court considered the proper interpretation of the amended

Rule 20, considering language which now appears in Prince Edward Island’s Rule 20.

The Court made a number of broad and sweeping observations regarding the civil

justice system in this country, observing that a culture shift is required to create an

environment promoting timely and affordable access to this system.

[37] The principles set out in Hyrniak have been applied in numerous cases in this

jurisdiction, and the parties refer to a number of decisions including McQuaid v.

Government of P.E.I., 2017 PECA 21 (“McQuaid”); Mallett v. Richard, 2018 PESC 50;

Royal Bank of Canada v. Trainor, 2017 PESC 13; RBC v. MJL Enterprises & Ors.,

2017 PECA 10; and O’Halloran v. Watterson, 2015 PESC 3.

[38] The court in McQuaid provides as follows in relation to Rule 20 and the

direction provided by Hyrniak:

[10] Rule 20 is one such tool in the arsenal of the justice system

to provide timely and affordable justice. The goal is still the

same. That is the process of adjudication must be fair and

just. However, it is not always necessary to have a full blown

trial with all the time and expense associated with that. The

proportionality principle means that the best forum for resolving

issues is not always the most painstaking procedure (Hyrniak,

para.28).

[11] Rule 20.04(1) makes summary judgment mandatory where

there is no genuine issue requiring a trial (Hyrniak, paras.47 and

68). There is no genuine issue requiring a trial when a judge is

able to reach a fair and just determination on the merits of the

motion for summary judgment. This would be the case where

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)

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is a proportionate, more expeditious and less expensive means to

achieve a just result (Hyrniak, para.49).

[39] The court in McQuaid also reiterates the test on a summary judgment

motion, as previously set out by that court in Ellis v. MacPherson, 2005 PESCAD 10

at paras. 18-19, namely a two-part test. The first part of the test requires the

moving party to show that there is no material fact in issue which would create a

genuine issue for trial. When and if the moving party discharges this onus, the

second part of the test mandates that the responding party produce evidence to

establish that the position taken in the responding party’s pleading has a real

chance of success. The Court of Appeal makes clear in Ellis, and other decisions

including the decision in McQuaid, that the onus is always on the moving party to

first establish there is no genuine issue for trial. (McQuaid para. 12).

[40] The Defendants’ position is that there is no genuine issue requiring a trial (as

the dependents’ claim is barred) and that the Plaintiff’s claim under the FAA should

be dismissed. The Plaintiff seeks a dismissal of the summary judgment motion, and

a declaration the Plaintiff’s claim is not barred.

[41] Counsel are all well versed in the law regarding summary judgment as

articulated in a number of decisions from this court and the Prince Edward Island

Court of Appeal.

[42] I am satisfied it is appropriate to proceed with a consideration – and

determination – of the issues before me, within the summary judgment framework.

To the extent there are contradictions in the evidence, it is not necessary to

reconcile or resolve those contradictions for reasons which will become apparent.

3. Fatal Accidents Regime

[43] The statutory regime before me – the FAA – is relevant in considering both

the waiver issue as well as the volenti issue. At this stage, I will provide some

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highlights of the legislation, though I will return to the regime when addressing the

substantive issues.

[44] Section 2(1) of the FAA essentially provides that dependents of a deceased

have a cause of action against a wrongdoer where the death of the deceased is

caused by a wrongful act:

2(1) Where the death of the deceased is caused by a wrongful

act, the wrongdoer is liable to the dependants for damages

under this Act notwithstanding the death of the deceased . . .

[45] The term “dependant” is defined in s. 1(f) and includes the surviving spouse,

child and parent of the deceased. The terms “wrongdoer” and “wrongful act” are

also defined in s. 1 of the FAA:

1.

In the Act …

(m) “wrongdoer” means a person who commits a

wrongful act and includes any other person liable for such

wrongful act and the respective personal representatives,

successors or

assigns of such persons in this

province or elsewhere but

or worker in respect of a

does not include an employer

wrongful act …

(n)

“wrongful act” means a failure to exercise reasonable

skill or care toward the deceased which causes or

contributes to the death of the deceased.

[46] Section 2(2) specifically precludes certain defences from being raised:

2.(2) It shall not be a defence to a proceeding for the recovery

of damages under this Act that

(a)

an

the deceased was not entitled at any time to maintain

action or recover damages in respect of any loss to

the deceased by reason of a wrongful act;

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(b)

the deceased was engaged in illegal acts or the

commission of a crime at the time of the wrongful act.

[emphasis added]

[47] Pursuant to s. 6(1), every proceeding under the Act is for the benefit of the

dependents. Section 6(2) contemplates damages, namely, such damages as

attributable to the loss of pecuniary benefit or reasonable expectation of pecuniary

benefit by the dependents resulting from the death of the deceased.

[48] The FAA also specifically contemplates potential contributory negligence of

the deceased and damages are to be reduced accordingly:

8.(3) Where the death of the deceased is caused by, or partly by,

the failure by the deceased to exercise reasonable skill and

care for his own safety, the damages that otherwise would

be awarded under this Act shall be reduced in proportion

to the degree in which the court finds that the deceased’s

failure caused or contributed to his death.

[49] As noted, I will return to the FAA in more detail later.

4. Potential applicability of the occupiers’ liability regime

[50] Before moving to the substantive issues – the waiver defence and the volenti

defence – I will first deal with the potential applicability of the occupiers’ liability

regime.

[51] The Plaintiff’s Statement of Claim makes no reference to the occupiers’

liability regime; does not plead or in any way reference the OLA; and, does not

allege any of the Defendants were “occupiers.” The Plaintiff nevertheless urges the

court to consider the OLA in considering the summary judgment motion. The

Defendents strenuously argue otherwise.

[52] By way of background, during the course of the hearing I raised with counsel

the absence of reference to the occupiers’ liability regime and sought additional

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written submissions from the parties. I take the point of the Speedway Defendants

(in written submissions) that they were “taken by surprise” when the court raised the

potential application of the OLA.

[53] In written submissions (post-hearing) the Plaintiff initially requested leave to

amend the Statement of Claim to add the OLA. Counsel relied on Rule 26.01

(reproduced in the Appendix) and suggested no prejudice would result by granting

the Plaintiff leave to add the relevant sections of the OLA to the Statement of Claim.

Paragraph 21 of the Plaintiff’s written submissions provides:

We submit that no prejudice would result from granting the

Plaintiff leave to add relevant sections of the Act. The Plaintiff

has argued that the Dependants’ action cannot be limited by

Michael Stevens’ signature of a waiver even if it is ultimately held

to be valid. The addition of the Act to the Statement of Claim

would simply add another layer of legislative support for the

same position the Plaintiff has clearly asserted for some time.

[emphasis added]

[54] The Defendants certainly took exception to this and the Defendant Shaw’s in

particular expressed significant concern. Shaw’s raised the issue of prejudice and

argued the Plaintiff would need to make a motion to the court to seek leave to

amend the Statement of Claim. Counsel argued: no formal notice had been

provided of the Plaintiff’s intention to amend the Statement of Claim; supplemental

submissions is “not the place to bring a fresh motion”; if the Plaintiff wishes to

amend the Statement of Claim, a separate motion needs to be brought pursuant to

the Rules; Shaw’s has not been provided with an opportunity to review any draft of

the Plaintiff’s proposed amended Statement of Claim; and, at least on its face, the

Plaintiff’s efforts to “rework” the Statement of Claim after the hearing of summary

judgment motion is prejudicial to the Defendants.

[55] I subsequently provided direction to the parties, including that if the Plaintiff

intended to pursue an amendment to the Statement of Claim, the Plaintiff would

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need to make a motion. Plaintiff’s counsel subsequently advised of the intention to

proceed with a motion to amend the Statement of Claim to add the OLA. The

matter was case managed in the fall of 2021. Plaintiff’s counsel circulated a

proposed – amended – Statement of Claim, which included proposed additions

applicable to the occupiers’ liability regime (including specific reference to the OLA).

In addition, the proposed pleading removed references to the SAA. Ultimately, the

amendments related to the removal of the SAA in the Statement of Claim were

made on consent and the amended Statement of Claim was filed in late November

2021.

[56] I will first summarize the Plaintiff’s position. With respect to the potential

amendments related to the OLA, the Plaintiff’s position evolved and Plaintiff’s

counsel subsequently advised that the Plaintiff no longer intended to make a motion

to specifically amend the Statement of Claim in relation to the occupiers’ liability

regime and the OLA. Nevertheless, the Plaintiff did intend to advance arguments in

relation to the occupiers’ liability regime. Upon request of further submissions from

the parties on this issue, the parties filed additional written submissions.

[57] The Plaintiff’s current position is that notwithstanding the absence of the OLA

being pleaded in the Statement of Claim, the court should nevertheless consider the

OLA in deciding the summary judgment motion. Counsel argues that a specific

amendment to the Statement of Claim (to add the OLA) is unnecessary.

[58] The Plaintiff argues the Rules do not specifically require citation of a specific

statute and in this case the OLA. The Plaintiff also argues the jurisprudence

supports that “if the pleadings and subsequent evidence establish the circumstances

that bring the action within the statute, specific mention of the statute need not be

made.” At the risk of oversimplifying, all Defendants do not necessarily disagree

with the Plaintiff’s suggestion that it is not necessary to specifically plead a statute,

provided the pleadings and subsequent evidence establish the action within the

statute. However, the Defendants do argue that the current pleadings – and

Page 19

evidence – do not provide the material facts to bring the current action under the

OLA.

[59] The Plaintiff argues that both the Rules and the jurisprudence support the

Plaintiff’s argument that it is not necessary to specifically cite the OLA. In broad

strokes, the Plaintiff relies on Rule 25 as well as (dated) jurisprudence: Collins v.

Burge, 1977 CarswellPEI 17 (CA) (“Collins”); Johnston v. Anderson (1974), 5 Nfld. &

P.E.I. Reports 198 (CA) (“Johnston”); Barrett v. Paquet, 1981 CarswellPEI 58 (SC)

(“Barrett”); and, Basarsky v. Quinlan, 1971 CarswellAlta 99 (SCC) (“Quinlan”).

[60] The Plaintiff highlights specific paragraphs in the Statement of Claim related

to the Speedway Defendants and argues the Statement of Claim “sets forth the

elements necessary to bring the action” under the OLA – namely, that the Speedway

Defendants are occupiers within the meaning of the OLA; that they owed a duty of

care to ensure the deceased was reasonably safe while using the premises; that they

breached their duty of care; and, that the breaches caused damages. I do pause to

note the Plaintiff’s most recent written submissions are silent regarding Shaw’s

allegedly being an occupier under the occupiers’ liability regime. Portions of the

OLA are set out in the Appendix.

[61] The Plaintiff argues the Rules do not require that the statute be specifically

pleaded and highlights Rule 25.06(2):

25.06(2) A party may raise any point of law in a pleading, but

conclusions of law may be pleaded only if the material facts

supporting them are pleaded.

[62]

Counsel suggests the only test for “insufficiency” of a pleading of law is as

follows: in an affirmative defence or reply, statutes must be relied upon if they

would otherwise take the opposing party by surprise (See Rules 25.07(4) and

25.08(2)). Rules 25.06(2), 25.07(4) and 25.08(2) are reproduced in the Appendix.

Page 20

[63] The Plaintiff also contrasts the Prince Edward Island Rule 25.06 with Rule

27.06(14) of the New Brunswick Rules of Court, which provides that where a party’s

cause of action or defence is “founded on an Act,” the parties are mandated to

plead the specific sections on which the party relies. However, the Speedway

Defendants urge caution in considering the Plaintiff’s argument on this point, and in

particular in considering the New Brunswick regime. The Speedway Defendants

highlight that Prince Edward Island adopted the Ontario Rules and specifically

highlight s. 7(1) of Ontario’s Interpretation Act, RSO 1990, c I.11 which provides

that judges are to take judicial notice of all statutes, even if not specifically pleaded.

The Speedway Defendants emphasize that Prince Edward Island’s Interpretation Act,

RSPEI 1988, c I-8 lacks a similar provision “absolving Plaintiffs from being required to

plead statute in order to rely upon it.”

[64] Plaintiff’s counsel argues jurisprudence from both this jurisdiction and the

Supreme Court of Canada express support for the argument that a statute need not

be specifically cited in the Statement of Claim. In Collins, the Plaintiffs (surviving

husband and child) commenced an action against two physicians and a hospital

alleging negligence which caused the death of the wife and mother. The pleading

specifically referred to a procedure which alleges negligence and alleges the

negligence caused the death. However, the pleading did not specifically reference

the FAA. The motions judge granted the Defendants’ motion to dismiss the action

on the grounds that the Plaintiffs had not commenced the action under the FAA

and given the time that had passed, the Plaintiffs’ action was barred by the

limitation period under the FAA. However, the Court of Appeal allowed the appeal

and set aside the decision of the motions judge. The court quotes with approval

from the decision in Johnston where the court considered the question of the

necessity of pleading statutes such as the SAA and the FAA. In Johnston, the court

acknowledges it may be “customary” to plead the statute relied upon but that a

party was not required to specifically plead the SAA. However, the court in

Page 21

Johnston does make clear that the “pleadings and subsequent proof set out must

establish circumstances which bring the action within the statute” (p. 207).

[65] The Johnston decision was also quoted with approval by the court in Barret.

In Barrett, two individuals suffered fatal injuries in a motor vehicle accident and the

Plaintiff administrator of the Estate of each deceased commenced an action under

the FAA. The court observes that the claim for damages to the automobile was

actually contemplated under the SAA, rather than the FAA but the Plaintiff had

neglected to claim under the SAA. The court was satisfied the claim for the vehicle

was substantiated and granted judgment against the Defendant for special damages

in relation to the vehicle.

[66] The Plaintiff also relies on the decision of the Supreme Court of Canada in

Quinlan, a 1971 decision. In Quinlan, the Plaintiff administrator of the Estate of the

deceased husband and father commenced an action against certain Defendants.

The Plaintiff brought the action under specific legislation – the Trustee Act – but did

not specifically reference the FAA. The Statement of Claim alleged the deceased

suffered fatal injuries arising from the motor vehicle accident. In the Statement of

Defence the Defendants admitted liability for the accident and therefore, the only

issue was that of quantum of damages. The Plaintiff then sought leave to amend

the Statement of Claim to allege particulars in relation to the surviving spouse and

children and to specifically plead the FAA. The primary issue before the Supreme

Court of Canada was whether to allow the amendments given that the two year

limitation period under the FAA expired before the application to amend was made.

The Court allowed the amendment, noting in particular that all the facts related to

the tort of the Defendants and the Defendants’ liability for the death of the

deceased had been pleaded in the original Statement of Claim. The Court observes

as well that the Defendants had admitted responsibility for the death of the

deceased and furthermore that counsel for the Defendants had examined on a

number of particulars that were relevant only to an action under the FAA (for

example, information related to the children as well as the employment and earnings

Page 22

of the deceased). The Defendants were not prejudiced by the Plaintiff’s failure to

specifically plead the FAA and the failure to plead particulars was not fatal, nor was

the failure to specifically refer to the FAA fatal. The Court allowed the appeal and

ordered that the Statement of Claim be amended as requested.

[67] Certainly the Defendants take a different view and urge the court not to

consider the OLA and the occupiers’ liability regime. The Speedway Defendants

highlight that the Plaintiff has not pleaded or relied on the OLA and argue that the

facts asserted in the Statement of Claim are not sufficient to establish a cause of

action under the OLA. The Statement of Claim does not assert that one or more of

the Defendants breached their duty of care as an owner of the premises, nor does

the Statement of Claim allege the premises itself was unsafe. Rather, the Plaintiff’s

claim is focused on the theory of a “botched rescue operation” and is grounded in

the common law duty of care. The Speedway Defendants argue that the failure of

the Plaintiff to plead the OLA or alternatively, the failure to raise facts which bring

the action within the OLA, is fatal to any claim the Plaintiff may have had under the

OLA.

[68] The Speedway Defendants also point out all of the cases relied upon by the

Plaintiff were decided prior to the adoption of the current Prince Edward Island

Rules.

[69] In contrast to the dated jurisprudence relied upon by the Plaintiff, the

Speedway Defendants rely on the decision of the Ontario Superior Court of Justice

in Mirshahi v. Suleman, 2008 CarswellOnt. 7534 (“Mirshahi”) where the court dealt

with the question of inadequate pleadings under the Ontario Rules. In Mirshahi the

Plaintiff brought various claims forward against the Defendants and the Defendants

made a motion to strike out significant portions of the Statement of Claim. In

response to the motion, the Plaintiff referred to specific statutory provisions. The

court observes that a Defendant “should not have to wait for the Plaintiff’s factum

on a motion to strike a pleading to learn the sections of the statutory provision that

Page 23

has been alleged to have been breached” and further that if a statute is pleaded, the

particular sections relied on should be identified in the pleadings. The court also

makes clear that if a statutory provision would take a party by surprise, the statutory

provision cannot be relied upon unless it is pleaded (Mirshahi, para. 48, authorities

omitted).

[70] The Speedway Defendants also rely on the decision in Elwin v. Nova Scotia

Home for Colored Children, 2013 NSSC 411 (“Elwin”). In this case, the Plaintiffs

were “wards” of the Province of Nova Scotia and were placed in a specific

institutional home. They alleged that during their stay they suffered various forms

of abuse. The action was brought against both the home as well as the Province of

Nova Scotia. The Plaintiff sought to have the claim certified as a class proceeding

representing all residents of the home. (I note the claim against the home was

settled and the certification issue was therefore only in relation to the Province).

The court reviewed the criteria set out in the legislation for certifying the proceeding

as a class proceeding. The court considered at length the first criteria, namely,

whether the pleadings disclosed a cause of action. Within this criteria, the court

specifically considered the notion of “non-delegable duty.” While a specific

paragraph in the Statement of Claim pleads non-delegable duty, the Statement of

Claim contains little detail; does not cite the statutes; and, does not refer to the

duties allegedly created by the statutes. The court concludes that the material facts

necessary to make out a violation of the alleged statutory duties had not been

pleaded in the Statement of Claim. Further, the Plaintiffs failed to plead the material

facts to show that the specified duties were owed to them. In summary therefore,

even with the judicial notice of the statute specifically provided for in Nova Scotia’s

Interpretation Act, the court concluded the pleadings were inadequate.

[71] All Defendants emphasize that it is trite law that a Defendant has the right to

know the case being brought against a Defendant. The Speedway Defendants

highlight that the OLA was certainly not a live issue at any point in the legal

proceedings, until the court raised the issue of the occupiers’ liability regime during

Page 24

oral argument. The Speedway Defendants highlight that the chronology and

evolution of the matter illustrate that the parties had never contemplated the

applicability of the OLA.

[72] In summary, the Speedway Defendants argue that it is not sufficient for the

Plaintiff to simply state that one or more of the Defendants is an owner of the

premises or that the Defendants did not have sufficient safety procedures in place in

the event of an accident. Rather, in order to rely on the OLA, “it was incumbent”

upon the Plaintiff to plead the OLA or, to raise material facts in the Statement of

Claim to support a claim under the OLA and the Plaintiff has failed to do either.

Therefore, the position of the Speedway Defendants is that it is not open to the

court to consider the OLA on the summary judgment motion.

[73] The Speedway Defendants also advance alternative arguments (essentially the

substantive arguments advanced by the Speedway Defendants in relation to the

waiver and volenti issues).

[74] Shaw’s advances similar arguments – the Plaintiff has not pleaded sufficient

facts to bring any claim against Shaw’s within the OLA. Counsel highlights that the

evolution of the Plaintiff’s position (including the Plaintiff’s initial failure to plead the

OLA) and then seeking to make additional submissions and amendments (“later

revised”) runs “afoul” of a clear directive of this court that a party responding to a

motion for summary judgment must “put their best foot forward” and “lead trump

or risk losing.” Shaw’s highlights in particular the direction of the Supreme Court of

Canada in Canada (A.G.) v. Lameman, 2008 SCC 14 where the court states:

[19] … A motion for summary judgment must be judged on the

basis of the pleadings and materials actually before the judge,

not on suppositions about what might be pleaded or proved in

the future.

[75] Shaw’s argues strenuously that there are no facts pleaded that would have

given Shaw’s any notice whatsoever that the Plaintiff was alleging that Shaw’s was

Page 25

an occupier, that Shaw’s was subject to the duty of care of an occupier, or that

Shaw’s had breached that duty of care. Shaw’s highlights in particular that in the

Plaintiff’s written submissions the Plaintiff has embarked upon the “exhaustive

exercise” of identifying facts that would underpin an OLA claim against the

Speedway Defendants, yet there is a noticeable absence of any identifying facts that

would underpin an OLA claim against Shaw’s. Shaw’s points out that there are

simply no facts alleged in the Statement of Claim that Shaw’s owned, leased or

otherwise exercised any control over the premises; control over the activities being

carried out at the premises; control over the persons allowed to enter on the

premises; or, that Shaw’s was subject to the duty of care of an occupier.

[76] Counsel likewise emphasizes the lack of notice and argues that even a broad

interpretation of the pleadings simply could not have put Shaw’s on notice that the

Plaintiff was alleging that Shaw’s was an occupier, was subject to the duty of care as

an occupier or breached those duties. In summary, the position of Shaw’s is that it

is not open to the court to consider the OLA on this summary judgment motion.

[77] I agree with the bulk of the arguments articulated by the Defendants. While

it is not necessarily required to plead a specific statute being relied upon, it is fairly

customary to do so. I agree with the Defendants that it is “trite law” that the

Defendants know the case they need to meet. There is nothing before me which

would suggest that any of the Defendants understood the Plaintiff was advancing a

claim under the OLA. I also reiterate the often-cited statement that in responding

to a summary judgment motion, the responding parties must “put their best foot

forward” and “lead trump or risk losing.”

[78] With respect to the Defendant Shaw’s, I agree that there are insufficient facts

pleaded that would have given Shaw’s any notice that the Plaintiff was alleging that

Shaw’s was an occupier, that it was subject to the duty of care of an occupier or that

it had breached that duty of care. In addition, the Plaintiff has failed to establish the

facts pleaded would underpin an OLA claim against the Defendant Shaw’s.

Page 26

[79] The arguments in relation to the Speedway Defendants have caused me more

pause. However, I ultimately conclude that there are likewise insufficient facts

pleaded that would have given the Speedway Defendants any notice that the

Plaintiff was advancing a claim under the statutory occupiers’ liability regime. In

addition, upon consideration of the existing Statement of Claim and the

jurisprudence, I conclude that the material facts alleged in the Statement of Claim

do not bring the action within the OLA. While it may not have been necessary for

the Plaintiff to specifically plead the OLA, it was necessary for the Plaintiff to plead

material facts in the Statement of Claim to support a claim under the OLA, which

the Plaintiff has failed to do.

[80] I conclude therefore it is not open to me to consider the OLA and I will

proceed with considering the Defendants’ summary judgment motion in the absence

of the OLA.

5. Substantive Issues

[81] I will now proceed with consideration of the two substantive issues before me:

the waiver issue and the volenti issue.

Issue No. 1: Do the waivers and release documents bar the dependents’ claim?

[82] The position of the Defendants on this issue evolved. In broad strokes the

Defendants argue (at least in written submissions) that the waivers and release

documents (executed by the deceased) bind the dependents and act as a bar to the

dependents’ claim. The Defendants essentially argue the claim is derivative. All

Defendants articulate this position clearly in written submissions, though some of

the submissions address both the waiver issue and the volenti issue.

[83] The Notice of Motion of the Speedway Defendants includes the following as

grounds for the motion:

Page 27

1. Prior to participating in the automobile racing event which

forms the subject matter of the within proceeding, Robert

Michael Russell Stevens executed agreements pursuant to

which he, inter alia, assumed all risks associated with his

participation in the automobile racing event; provided the

Defendants with a full and final release and waiver of liability

and all claims arising from his participation in the automobile

racing event; agreed, on behalf of himself and his heirs,

personal representatives, and next of kin, not to sue the

Defendants for any loss, injury, costs or damages caused or

arising from his participation in the automobile racing event;

and agreed, on behalf of himself and his heirs, personal

representatives, and next of kin, to indemnify the Defendants

and to save and hold them harmless from any claim arising

from his participation in the automobile racing event . . .

[84] The position of the Speedway Defendants is also articulated at para. 56 of the

written submissions:

56.The Defendants submit that by executing the Waiver &

Release Agreements, Mr. Stevens agreed, on behalf of himself,

his heirs, assigns, personal representatives, and next of kin to

release the Defendants and any person(s), entities, or

organization(s) associated in any way with the race from all

claims and liabilities arising from his participation. As such,

and for the reasons set out above, the Plaintiff cannot sustain

an action pursuant to the Fatal Accidents Act. Thus, the

Plaintiff’s Fatal Accidents Act Claim ought to be dismissed.

[85] The Defendant, Shaw’s, advanced similar arguments both in the Notice of

Motion as well as in written submissions. The Notice of Motion of Shaw’s includes

the following as grounds for the motion:

3. That Robert Michael Russell Stevens, before participating in

the automobile racing incident which forms the subject matter

of the within proceeding, signed a waiver of all rights to make

Page 28

claims or institute proceedings against, inter alia, the

defendant Shaw’s, which waiver is binding in law against the

Plaintiff.

[86] The Defendants and in particular the Defendant Shaw’s advanced various

public policy arguments in favour of enforcing waivers in the context of recreational

sports. Counsel argue there will be practical and problematic outcomes to operators

– and to society – if the court ultimately determines the waiver documents do not

bar the dependents’ claim. Counsel also argues that comprehensive waivers “keep

insurance affordable” and that if the law is that waivers cannot bar the dependents’

claim, this “upends society.”

[87] Nevertheless, at the hearing all Defendants acknowledged the decision of the

Prince Edward Island Court of Appeal in Donovan v. Queens County Residential

Services Inc., 2016 PECA 1 (“Donovan”). The Plaintiff argues strenuously that given

the statutory regime (and the unique provisions of the FAA) and the decision in

Donovan, the waivers and release documents do not bind the deceased’s

dependents and do not bar the Plaintiff’s claim.

[88] While the Defendants are not “conceding defeat” in relation to the waiver

(derivative) issue, the issue was not strenuously contested and no contrary case law

was brought to my attention. Counsel for Shaw’s, for example, was candid in

acknowledging it would be difficult for this court to reach a conclusion contrary to

the Court of Appeal’s decision in Donovan. Counsel for the Speedway Defendants

likewise advises that for the purposes of the summary judgment motion, the

Speedway Defendants are not relying on the derivative argument. The Speedway

Defendants are not arguing that the waiver and release documents therefore bar the

dependents’ claim.

[89] In very broad strokes, and which will be expanded upon later, the Court of

Appeal in Donovan concludes that in the specific statutory regime in this province,

Page 29

as set out in the FAA, the claim of the dependents of a deceased is not derivative

and rather, the dependents have an independent cause of action.

[90] I pause to note that many of the cases filed by the parties deal with the issue

of waivers and the volenti defence. Both the evidence and the law in relation to

waivers and the volenti defence interrelate and overlap and feature prominently in

the matter. In addition, consideration of the volenti defence cannot be considered

in a vacuum. As emphasized by counsel, the waivers constitute significant – though

not exclusive – evidence under the umbrella of the volenti defence being advanced

by the Defendants. As such, the evidentiary record in relation to the waivers informs

not only the derivative issue, but also the volenti issue. I will therefore first provide

highlights of the law regarding waivers followed by highlights of the evidence. I will

then move to my decision on the impact of the waivers and release documents on

the dependents’ claim and in particular whether these documents serve to bar the

dependents’ claim against the Defendants. I will then move to specific consideration

of the substantive issue of the volenti defence.

Page 30

a.

Waivers – The Law

[91] A worthwhile starting point is the decision of the Supreme Court of Canada in

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation &

Highways), 2010 SCC 4 (“Tercon”). In Tercon, the Court established a framework to

determine whether a party is bound by an exclusion clause to which the party had

previously agreed. Although Tercon was in a commercial and contractual context

(dealing with an exclusion clause in a tender contract), the framework and the three-

pronged test have been applied extensively to waivers. The framework is actually

detailed in the dissenting reasons of Binnie J., but endorsed by the majority of the

Court. In broad strokes, the three-pronged test may be summarized as follows:

1.

2.

3.

Whether the exclusion clause applies;

Whether the exclusion clause was unconscionable; and

Whether the court should refuse to enforce the exclusion clause on the

basis

reproduced in the

of an overriding public policy. (Tercon, paras. 121-123 -

Appendix).

[92] As will be expanded upon later, the primary issue before me in the context of

the waiver issue, is whether the waiver applies to the dependents. Nevertheless, I

first return to the jurisprudence on waivers generally.

[93] A number of decisions also refer to the decision of the Ontario Superior Court

of Justice in Isildar v. Kanata Diving Supply, 2008 CarswellOnt 3580 (“Isildar”). In

this case a husband died in a diving incident and the surviving spouse and child

brought a claim against the diving operation. The deceased had signed a release

and assumption of risk agreement in favour of a number of entities including the

diving operation. While Isildar was decided two years earlier than Tercon, it is

worthwhile to set out the three stage analysis suggested by the court in Isildar in

determining whether a signed release of liability is valid:

Page 31

1.

Is the release valid – namely, did the party know what the party was

signing? Alternatively, are the circumstances such that the party

presenting the release should have taken reasonable steps to bring the

release to the attention of the party signing the document?

2.

What is the scope of the release – namely, is the release worded

enough to cover the conduct of the defendant?

broadly

3.

Whether the release should not be enforced because it is

unconscionable? (Isildar, para. 634 – reproduced in the Appendix)

[94] The court refers to a number of decisions including two decisions of the

Supreme Court of Canada, Dyck v. Manitoba Snowmobile Assn. Inc., [1985] 1 S.C.R.

589 (“Dyck”) and Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186

(“Crocker”), as well as the decision of Chief Justice McLachlin (C.J., BCSC as she then

was) in Karroll v. Silver Star Mountain Resorts Ltd., 1988 3094 (BC SC)

(“Karroll”). All three of these decisions feature prominently in the jurisprudence

considering waivers.

[95] In the present summary judgment motion, the Plaintiff and Defendants refer

to a multitude of cases involving waivers as well as the volenti defence. The

Defendants in particular rely on a number of decisions where the courts have

dismissed actions on the basis of an individual having signed a release or waiver.

The Defendants also highlight a number of cases in the context of recreational

sporting type events, and also highlight decisions where the courts have granted

summary judgment in favor of Defendants in such cases. The Plaintiff also

highlights jurisprudence where the courts have declined to give effect to waivers. I

will provide a brief summary of a number of these cases.

1.

Dyck

Page 32

[96] As noted, this is a 1985 decision of the Supreme Court of Canada. The

Plaintiff suffered serious injuries while taking part in a snowmobile race sanctioned

by the Defendant snowmobile association. The Court agreed the waiver clause

exonerated the Defendant association from liability. The Court concluded as well

there was no basis to strike the waiver, either on grounds of unconscionability or on

public policy grounds.

2.

Crocker

[97] As noted, this is a 1988 decision of the Supreme Court of Canada. In this

case the Plaintiff was seriously injured when competing in the ski resort’s tubing

competition. The key question was whether the ski resort had a positive duty to

take steps to prevent the visibly intoxicated Plaintiff from competing in the

dangerous tubing competition. The ski resort relied on both the defence of

voluntary assumption of risk and also relied on the waiver as a contractual defence.

The Court rejected both defences in the circumstances. The Court concluded the

Plaintiff had not voluntarily assumed the risk and that the volenti defence was

inapplicable. The Court agreed that a contractual waiver clause may serve as a full

defence to a claim in tort; however, in the circumstances, the Court concluded the

resort could not rely upon the waiver clause in the entry form. The Court

highlighted the trial judge had found the waiver provision had not been drawn to

the Plaintiff’s attention, the Plaintiff had not read it, and in fact did not even know of

its existence, as he thought he was simply signing an entry form. The Court

specifically points to the significant differences between the facts before the Court in

Crocker and the facts before the Court in the Dyck decision.

3.

Karroll

[98] The decision in Karroll also appears fairly frequently in a number of the

decisions. In this case the Plaintiff was injured in a downhill ski race. The Defendants

argued the Plaintiff was precluded from recovering damages against the Defendants

given the release and indemnity agreement signed by the Plaintiff prior to the race.

Page 33

The Plaintiff argued the release was not binding as she had not been given a

reasonable opportunity to read and understand the release document. The

Defendants argued that while the Plaintiff may not have read the release, she knew

the document affected her legal rights and that therefore this was sufficient to make

the release document binding on the Plaintiff. The court observes that only in

special circumstances is a party proffering a release document obligated to take

reasonable steps to bring the release to the other party’s attention. The starting

point is the recognition that, generally speaking, where a party signs a document

which the party knows affects the party’s legal rights, that party is bound by the

document. However, the court notes three exceptions to this rule:

1.

made it

Where the document is signed by a party “in circumstances which

not her act “(non est factum);

2.

Where the agreement has been induced by fraud or misrepresentation;

or

to

3.

Where the party seeking to enforce the document knew or had reason

know of the other party’s mistake as to its terms.

(Karroll,

paras. 16–18 –

reproduced in the Appendix)

[99] Therefore, there is no general requirement that a party tendering a document

for signature to take reasonable steps to advise the party signing of onerous terms,

nor is there a general requirement to ensure that the party signing reads and

understands the terms. However, where the circumstances are such that a

reasonable person should have known that the party signing was not consenting to

the terms in question, the party tendering the document then has an obligation to

bring the terms to the attention to the party signing. Numerous factors may be

relevant in determining whether there is a duty to take reasonable steps to advise

the party signing of an exclusion clause or waiver. (Karroll, paras. 24-25 –

reproduced in the Appendix).

Page 34

[100] The court emphasizes certain features of the release including that it was

short, easy to read, headed in capital letters, with no fine print and certainly not a

situation where the release was “buried.” Signing such releases was a common

feature of the ski race and in addition the Plaintiff herself had signed such releases

on previous occasions before. The court therefore concluded it was not incumbent

on the resort to take reasonable steps to bring the contents of the release to the

Plaintiff’s attention, nor to ensure that she read it carefully. In the alternative, the

court concluded that the resort had in fact taken reasonable steps to discharge any

obligation to bring the contents of the release to the Plaintiff’s attention (Karroll

paras. 28–29).

[101] The court concludes the Plaintiff signed the release knowing it was a legal

document affecting her rights and the court also concludes none of the three

exceptions applied. The Plaintiff was therefore precluded by virtue of the release

from recovering damages against the Defendants.

4.

Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122

[102] In this case, the Plaintiffs suffered injuries in a zip line collision due to the

negligence of the employees of the zip line tour operation. The Plaintiffs had

signed a waiver of liability. In the summary trial application, the court concluded the

waiver constituted a complete defence to the action and dismissed the Plaintiffs’

claim. In applying the three-prong test set out in Tercon, the British Columbia

Court of Appeal agreed. The court specifically addresses the notion of

unconscionability within the context of releases relating to recreational sporting

activities. The Plaintiffs argued in particular that the release was unconscionable and

further that it should be held unenforceable on public policy grounds. The court

observes that in order to set aside the release based on unconscionability, a party

must establish both inequality in the position of the parties as well as substantial

unfairness. (Loychuk paras. 30-31). The court specifically addresses the notion of

unconscionability in the context of recreational activities, concluding there is no

Page 35

power-imbalance where a person wishes to engage in an inherently risky

recreational activity that is controlled or operated by another person. Likewise, the

authorities are clear that it is not unfair for the party operating the recreational

activity to require a release or waiver, as a condition of participating in the activity.

(Loychuk para. 33). As noted, the Court of Appeal agreed the release was a

complete defence to the Plaintiffs’ action.

5.

Chamberlin v. Canadian Physiotherapy Assn., 2015 BCSC 1260

[103] In this case a physiotherapist was injured while participating in an educational

course organized and administered by the physiotherapy association. The

Defendants sought to have the Plaintiff’s claims dismissed by summary trial based

both on the waiver signed by the Plaintiff as well as the argument the Plaintiff

willingly assumed the risks. The court quotes extensively from the decision in

Karroll, but dismissed the application, concluding the Defendants failed to

demonstrate the waiver provided a valid and complete defence. In addition, the

court was not satisfied the Defendants met the evidentiary burden to prove that the

Plaintiff voluntarily and knowingly assumed the risks.

6.

Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co., 1997

CarswellOnt 1894 (CA)

[104] This case involved a contract for the installation and maintenance of a burglar

alarm system by the security firm, ADT. The contract included an exclusion clause

which essentially limited the liability of the security firm to the lesser of 100% of the

annual service charge or $10,000.00. The Plaintiff testified that he had not read the

agreement, was unaware of the exclusion clause and that it had not been pointed

out to him. The court observes that as a general proposition, in the absence of

fraud or misrepresentation, a person is bound by an agreement to which the person

had signed, whether the person has or has not read the contents and that further,

failure to read a contract before signing it is not generally a basis for refusing to

abide by the contract (para. 30). The court makes a number of observations about

Page 36

the exclusion clause: the clause was in no way obscured; the contract was printed on

essentially one sheet of paper; the limitation provision was highlighted in bold, block

letters; the language was clear and unambiguous; there was no reason to resort to a

magnifying glass to see it nor was there a need to resort to a dictionary to

understand the clause; and, nothing was done to mislead the reader. Had the

Plaintiff perused the contract, he would have been aware of the limitation. The

court concluded there was nothing unfair, unreasonable, or unconscionable about

the matter and concluded the exclusion clause applied.

7.

Quilichini v. Wilson’s Greenhouse & Garden Centre Ltd., 2017 SKQB

10

[105] In this case the Plaintiff was injured in a go-cart race. He had “signed” an e-

waiver by clicking the “I Agree” icon in proceeding through the kiosk system. The

court granted the Defendants’ summary judgment application and dismissed the

Plaintiff’s action. The court adopts the test set out in Karroll, and also refers to

Tercon and Isildar. The court concludes the Defendants had taken reasonable

measures to ensure that customers received notice of the waiver and release

provisions. Further, the court observes the activity involved, go-cart racing, was of a

nature where it was “normal” for participants to expect to have to sign a waiver and

release. The Plaintiff would have understood that if he did not sign a release he

would not be able to participate and he had the “freedom to choose” (Quilichini

para. 17).

8.

Sibley v. British Columbia Custom Car Assn., 2005 BCSC 509

[106] In this case the Plaintiff suffered injuries while operating his motor cycle at a

raceway park. The Defendants made an application to dismiss the Plaintiff’s action

on the basis that the release signed by the Plaintiff was a complete defence to the

action. The court granted the Defendants’ application and dismissed the action.

The court specifically noted that issues relating to the enforceability of releases in

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the context of sports and recreation activities are suitable for determination by

summary trial.

9.

Arif v. Li, 2016 ONSC 4579

[107] In this case the Plaintiff suffered injuries while rock climbing in a conservation

area. The Defendants argued on the summary judgment motion that the Plaintiff

had released the Defendants from liability by signing two releases and likewise

argued the Plaintiff had voluntarily assumed the risks associated with the rock

climbing. The court concluded the Plaintiff was bound by the terms of the releases

and the court granted the Defendants’ summary judgment motion and dismissed

the Plaintiff’s action. In addition, relying on Karroll, the court observes there is no

independent obligation on a person seeking the benefit of a release to explain its

legal effect to the signer of the release (para. 58). Nevertheless, the court concludes

the Defendants had taken reasonable steps to bring the contents of the releases to

the Plaintiff’s attention. The court also concludes the volenti defence applied as

the Plaintiff had voluntarily assumed the risks of rock climbing.

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10.

Alton v. Lower Mainland Motocross Club, 2017 BCSC 2460

[108] In this case the Plaintiff injured his leg when he fell off his dirt bike during a

practice session at a raceway park, and brought an action against the Defendants

pursuant to the occupiers’ liability regime. The Defendants brought a summary trial

application to dismiss the Plaintiff’s action, arguing the waivers provided a complete

defence. The Plaintiff had signed an application for competition membership which

included a waiver. In addition, on the day of the accident the Plaintiff also signed a

race day waiver. The Plaintiff argued the membership waiver was “buried” in the

middle of several pages and further that with respect to the race day waiver, it was

essentially a “cattle call” to sign and that the purpose of the waiver was not read or

understood. The court concludes both waivers were clear, noticeable, easy to read

and made no attempt to disguise their purpose. The waivers also used broad and

comprehensive language – serious injury and death were included in the type of

risks covered. In concluding the waivers were valid and enforceable, the court

granted the Defendants’ application and dismissed the Plaintiff’s action.

11.

Niedermeyer v. Charlton, 2014 BCCA 165

[109] In this case the Plaintiff signed a release before participating in a zip line

experience operated by the Defendant. When returning on the bus operated by the

Defendant’s employee, an accident occurred and the Plaintiff suffered significant

injuries. The majority of the court declined to give effect to the release, concluding

that to allow private parties to contract out of the statutory insurance scheme would

be contrary to public policy. Therefore, the majority concluded the release was

unenforceable.

12.

Lafontaine (Guardian ad litem of) v. Prince George Auto Racing

Assn., 1994 CarswellBC 2387

[110] In this case the deceased, while participating as a member of a racing crew,

was struck by a race car driver and died as a result of his injuries. His common law

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partner and two children commenced an action. The question before the court was

whether the action was precluded by the terms of a release signed by the deceased.

The day of the race the deceased signed a release and waiver of liability agreement,

which was required to secure entrance into the pit and racetrack area. In addition,

the annual application for membership included a release and waiver of liability

document. The court reviews the surrounding circumstances, including that the

deceased had an experienced participant in the sport which by its nature is

inherently dangerous. He had been a member of the association for at least two

years and during that time had participated in many racing events. By trade, he was

an auto body repairperson. The court concluded the deceased was fully alive to the

dangers inherent in the activity and fully alive to the nature of the release

documents he signed prior to participating in each event. The court concludes the

release agreements signed by the deceased were fully understood, appreciated and

freely and voluntarily entered into by him as a condition of his participation. The

court concludes as well that the releases were effective and binding upon the

deceased and his successors, and therefore the releases precluded the action. I

pause to note the decision in Donovan in this jurisdiction points to a different result

for the dependents, given the specific statutory regime in the FAA.

13.

Milina v. Bartsch, 1985 CarswellBC 13

[111] In this case the Plaintiff was rendered quadriplegic after improperly

performing an acrobatic ski stunt at a ski show, and he commenced an action

against a number of Defendants. The court concluded the Defendants were not

negligent as there was no breach of duty; alternatively, the action could not be

maintained by reason of the waiver. In addition, if the Defendants were negligent

the doctrine of volenti precluded the Plaintiff from proceeding with the claim.

14.

Cudmore Estate v. Deep Three Enterprises Ltd., 1991 CarswellOnt

2191

(G.D.)

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[112] In this case, two individuals died as a result of an accident while scuba diving

and actions were brought by the surviving family members. The Defendants argued

there was no liability and rather that the deceaseds were the authors of their own

misfortune. The deceaseds had completed a document that included a waiver,

relieving the Defendants from liability for personal injury, property damage or

wrongful death caused by negligence. The court found negligence and concluded

the waiver had no effect. In particular, the court found the Defendants could not

“hide behind” the waiver and also concluded that it would be unconscionable to

give effect to enforcement of the waiver.

[113] I will now move to highlighting the evidence.

b.

Evidentiary Record

[114] A variety of evidence was put before the court through a multitude of

affidavits: 1) Kenneth Cunning, General Manager of Maritime Pro Stock Tour; 2)

Gary Ford, Treasurer of Oyster Bed Speedway; 3) Stephanie Duffy, previously an

employee of Oyster Bed Speedway; 4) Robbie MacLean, Secretary of Oyster Bed

Speedway; 5) Randall MacKinnon, President of Shaw’s; 6) Robert Douglas Stevens,

father of the deceased and crew chief of the deceased’s race crew; 7) the Plaintiff,

Sharon Stevens; and, 8) Véronique Keays-Dubé , paralegal of the law firm

representing the Plaintiff.

[115] I will now highlight the extensive evidentiary record. For the sake of bringing

some structure to the evidence, I will summarize the evidence under the following

categories: overview of the racing series; the deceased’s participation in prior races;

waivers and related documents and notices; and, inspections.

i)

Overview of Racing Series

[116] Each year the Defendant Maritime Pro Stock Tour sanctions a series of

between 10 and 13 stock car races. The series is referred to as the “Parts for Trucks

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Pro Stock Tour.” In 2013, the Tour consisted of 12 races held at various racetracks

in Nova Scotia, New Brunswick and Prince Edward Island. The first race of the 2013

racing season occurred in May and the last race occurred in September. Points are

awarded to drivers that compete in each race and the amount of points varies

depending on the driver’s performance during a race. The driver with the highest

cumulative points at the conclusion of the season is crowned the winner of the Tour.

[117] Each year Maritime Pro Stock Tour enters into an agreement with the

Defendant, Oyster Bed Speedway whereby the Speedway agrees to host Maritime

Pro Stock Tour sanctioned races.

ii)

Deceased’s Participation in Prior Races

[118] The evidence before the court is that the deceased began racing when he was

15 years of age and raced regularly until the date of the accident – August 3, 2013.

[119] The deceased first competed on the Tour during the 2006 season and

competed in every year after through to and including 2013. The deceased’s

placement ranged from 19^thplace (in the 2006 season) to 8^thplace in the 2012

season.

[120] To the best of Mr. Cunning’s knowledge, the deceased competed in seven

other Tour races in the 2013 racing season, prior the Tour race of August 3, 2013.

On August 3, 2013, Oyster Bed Speedway hosted a Tour race at its racetrack and the

deceased competed in the Tour race.

iii)

Waivers and Related Documents and Notices

[121] The affidavits highlight waivers and related documents and practices: 1) the

Maritime Pro Stock Tour release of liability, waiver of claims, assumption of risks and

indemnity agreement (the “Tour Waiver”); 2) Oyster Bed Raceway release of liability

waiver of claims, assumption of risks and indemnity agreement (the “Oyster Bed

Waiver”); 3) waivers in relation to other tracks; and, 4) warning signs. I will provide

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some detail on each of these areas. In broad strokes, drivers were required to

complete a Maritime Pro Stock Tour registration and waiver form at the beginning

of each racing season and were not permitted to participate in any Tour races until

the registration and waiver form was properly completed. In addition, drivers – and

in fact all visitors to the “pit” area – were also required to complete the Oyster Bed

Waiver before being granted access to the pit area.

1.

Tour Waiver

[122] All drivers that participated in the Tour in 2013 were required to complete

and submit a two page Maritime Pro and Stock Tour registration form and waiver

document. All drivers were required to sign the form prior to competing on the

Tour in 2013, and drivers were not permitted to participate in Tour races unless they

had completed and signed form. The top of p. 1 of the form provides: “car number

application/registration form/insurance waiver.” The top of p. 1 also cautions that

the document is a two-page document and that a signature is required on p. 2.

[123] Page 1 of the form requests various team and driver information. Page 2

contains the waiver. The totality of the actual Tour Waiver is reproduced in the

Appendix. The top of the page has the following in capitals, bolded and underlined,

“RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK AND

INDEMNITY AGREEMENT. The document also clearly indicates that by signing the

document the signatory will waive certain legal rights and the signatory is cautioned,

in capitals, bolded and underlined, to “PLEASE READ CAREFULLY!” The Tour Wavier

has a space for the signature of both the car owner and the driver.

[124] The waiver is comprehensive. The signatories agree that they are “familiar

with and accept that there is the risk of serious injury and death in participation.”

The waiver also purports to constitute an assumption of risk not only by the

signatory but also on behalf of the signatory’s “HEIRS, ASSIGNS, PERSONAL

REPRESENTATIVES AND NEXT OF KIN.” In particular, the signatory understands and

agrees that execution of the document constitutes an “UNQUALIFIED ASSUMPTION

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BY ME OF ALL RISKS” associated with participation in the Tour even if arising from

negligence or gross negligence and the waiver specifically includes “negligent rescue

operations or procedures.” The Tour Waiver purports to constitute a “FULL AND

FINAL RELEASE AND WAIVER OF LIABILITY IN ALL CLAIMS” that the signatory has or

may have in the future against a multitude of persons and organizations

(“Releasees”) including for example, track owners, promoters, racing associations,

sponsors, participants and rescue personnel. The scope of the release is broad and

includes “all liability for any loss, damage, injury or expense” and specifically

references “NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT OR BREACH

OF ANY STATUTORY OR OTHER DUTY OF CARE.” The waiver also includes an

“AGREEMENT NOT TO SUE THE RELEASEES” for any loss, injury, costs or damages

arising from the signatory’s participation in any aspect of the Tour. Finally, the

waiver also includes an indemnification, namely, “AN AGREEMENT TO INDEMNIFY,

and SAVE and HOLD HARMLESS THE RELEASEES” from any litigation, expense, legal

fees, “liability damage” or other such award or costs the Releasees may incur due to

any claim made against them by the signatory or the signatory’s behalf including

the signatory’s estate. The waiver concludes with the following in capitals: “I HAVE

READ AND UNDERSTAND THIS AGREEMENT AND I AM AWARE THAT BY SIGNING

THIS AGREEMENT I AM WAIVING CERTAIN SUBSTANTIAL LEGAL RIGHTS WHICH I

AND MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND ASSIGNS MAY

HAVE AGAINST THE RELEASEES. I SIGN THIS DOCUMENT VOLUNTARILY AND

WITHOUT INDUCEMENT.”

[125] Drivers could submit the Tour registration and waiver form via regular,

registered mail, electronically or in person. Mr. Cunning, General Manager of the

Tour for several years, notes that given the small size of the stock car racing

community in the Maritimes, he is generally familiar with the names of all drivers

that submit the form. In his 11 years as General Manager, he has never received a

Tour form with a name of a driver that he did not recognize.

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[126] In 2013 the application fee for drivers who submitted their Tour form

submitted prior to April 1, 2013, was $400 and $600 for drivers who submitted their

form after April 1, 2013. When the Tour form is received by the Defendant,

Maritime Pro Stock, it is the ordinary practice to review the document to confirm

that it has been completed properly. If a driver has failed to complete the

document properly, it is ordinary practice to contact the driver and request that the

driver complete a new Tour form. This is the practice that Maritime Pro Stock

followed in 2013. Provided the driver completed the Tour form properly, it was the

ordinary practice to then add the driver’s name to the registration list. Only those

drivers included in the registration list were permitted to participate in Tour races.

[127] While a blank copy of the Tour Waiver is before me, I have not been provided

with the Tour Waiver as signed by the deceased. Evidence on behalf of Maritime

Pro Stock Tour explains this gap.

[128] Mr. Cunning indicates that Maritime Pro Stock Tour relocated to a new

building in October 2013 and all registration and waiver forms for the racing season

up to and including the 2013 season were lost during the relocation. As such,

Maritime Pro Stock Tour does not have a signed copy of the deceased’s registration

and waiver form for the 2013 racing season.

[129] However, Mr. Cunning indicates that as a condition for competing in the Tour

race on August 3, 2013, the deceased “must have” completed and executed the Tour

Waiver. Mr. Cunning points out that had the deceased not completed the

registration and waiver form, he would not have been permitted to compete in the

race Tour as his name would not have appeared on the registration list and his

motor vehicle would not have been subjected to and passed the technical

inspection.

[130] Mr. Cunning was the race director for the Tour race on August 3, 2013, and

was responsible for ensuring that all drivers were registered and that all motor

vehicles competing in the race passed the technical inspection. Mr. Cunning

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personally knew the deceased as he had competed on the Tour since 2006. Mr.

Cunning indicates that he would not have permitted the deceased to compete in the

race if he had not completed the registration and waiver form.

[131] Mr. Cunning’s evidence is that given Maritime Pro Stock Tour requires all

drivers to complete and submit a new Tour registration and waiver form for each

racing season, and given that the deceased had competed in Tour races in seven

previous racing seasons (2006-2012 inclusive), the deceased would also have signed

seven Tour registration and waiver forms prior to the 2013 racing season.

2.

Oyster Bed Waiver

[132] All individuals entering at the main entrance of the main racetrack were

required to visit one of the ticket booths prior to being given access to either the pit

area or the grand stand. The entry fee to the grand stand area was $25 and the

entry fee to the pit area was $30. Other than Oyster Bed Speedway staff and

volunteers, all individuals, including race car drivers, were required to pay an entry

fee at one of the ticket booths before the race.

[133] Access to the pit area was restricted and prior to being given access to the pit

area, all individuals (including drivers) were required to sign the Oyster Bed Waiver

at one of the ticket booths. Once the individual had signed the Oyster Bed Waiver

the individual was provided with a specific wrist band which permitted the individual

to enter the pit area. Oyster Bed Speedway’s security personnel were located at the

entrance to the pit area to ensure that only those individuals wearing a wrist band

entered the pit area.

[134] On the day of the subject race on August 3, 2013, the deceased signed the

Oyster Bed Waiver. The Oyster Bed Waiver, with the signature, “Mike Stevens” dated

August 3, 2013 was before the court. The Oyster Bed Waiver from a race of July 31,

2011 was also before the court which included the handwritten name of the

deceased.

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[135] The Oyster Bed Waiver is comprehensive and is very similar to the Tour

Waiver. At the top of the waiver the following appears in capitals: “RELEASE OF

LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY

AGREEMENT.” The waiver also indicates in capitals that by signing the document

“YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.” The

waiver also cautions the signatory, in capitals, to “PLEASE READ CAREFULLY!”.

[136] Similar to the Tour Waiver, the Oyster Bed Waiver likewise purports to

constitute an assumption of risk not only by the signatory, but also on behalf of the

signatory’s “HEIRS, ASSIGNS, PERSONAL REPRESENTATIVES AND NEXT OF KIN.” The

totality of the Oyster Bed Waiver is reproduced in the Appendix.

3.

Waivers – Other Tracks

[137] There is also evidence before the court regarding the requirement of waivers

at other tracks that hosted Tour races.

[138] Mr. Cunning indicates it is common in the stock car racing industry for race

promoters and racetrack owners to require all drivers to execute some form of a

waiver and release of liability agreement. Mr. Cunning believes that each racetrack

that hosted Tour races in 2013 required all drivers to execute some form of a waiver

and release of liability agreement.

[139] Mr. Ford was previously a member of a pit crew and regularly travels to the

stock car races. To the best of Mr. Ford’s recollection and belief, all tracks that he

has attended as a member of a pit crew required him to sign a waiver and release

of liability agreement prior to being granted access to the pit area.

[140] Mr. MacLean regularly competed in racing competitions from 1989 until he

became the secretary of the Oyster Bed Speedway in 2009. He believes that all

racetracks that he has attended have required him to sign a form of waiver and

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release of liability agreement prior to allowing him to compete in a racing

competition.

[141] Evidence of the waivers generally was also provided by Robert Stevens, the

father of the deceased and also crew chief of the deceased’s crew. Mr. Stevens

paints a different picture of the approach and practice related to waivers, as

compared to the picture painted by the Speedway Defendants.

[142] Mr. Stevens does indicate that every person who entered a given racetrack’s

pit was required to sign a waiver and the procedure was fairly consistent at every

track. The race teams, and their drivers, were required to sign a venue specific

waiver and release of liability and required to pay an entry fee to access the

racetrack. Mr. Stevens indicates different procedures for the signing of the waivers

(for example, signing at the ticket booths while paying the racetrack entrance fee, or

having the waiver attached to a clipboard and being “passed down the line” of

individuals waiting to pay the entrance fee). Mr. Stevens indicates the waiver was

often of poor-quality print and difficult or impossible to read. Because of the

individuals lined up behind one another waiting to sign the waiver, there was “no

opportunity to read the waiver.” Mr. Stevens indicates that had they stopped to

read the waiver, entry to the pit would have been delayed for those individuals

waiting in the line. Mr. Stevens provides at para. 10 of his affidavit:

I or anyone else on the race team was never provided with a

copy of the Waiver in advance, was never encouraged to read the

Waiver, was never explained what was stated in the Waiver, was

never provided with a copy of a signed Waiver, and would always

feel rushed to sign the Waiver as a result of dozens if not

hundreds of individuals waiting in line to access the racetrack. I

am not aware of a single individual who has ever read the Waiver

prior to entering a Maritime Pro Stock Tour racetracks, including

Oyster Bed Speedway.

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[143] Mr. Stevens does confirm that on the day of the subject race, their entire race

team, including the deceased, signed the Oyster Bed Waiver.

4.

Warning Notice

[144] There is also evidence before the court regarding warning signs affixed to the

Oyster Bed ticket booths at the entrances.

[145] All drivers who participated in the race at Oyster Bed on August 3, 2013, were

required to proceed through one of the two ticket booths at the main entrance of

the racetrack. The following warning sign was affixed to each ticket booth:

WARNING

YOU ARE SIGNING A RELEASE.

KNOW WHAT IT SAYS…COPIES AVAILABLE.

THE HOLDER OF THIS PIT PASS ACKNOWLEDGES

SIGNING THE RELEASE AND WAIVER, IN EXCHANGE

FOR ADMITTANCE TO THE RESTRICTED AREA. BY

SIGNING, HOLDER HAS WAIVED CERTAIN LEGAL

RIGHTS, AND ACKNOWLEDGES THE POTENTIALLY

DANGEROUS NATURE OF ACTIVITIES IN AND

ADJACENT TO RESTRICTED AREAS.

It is recommended you use hearing

protection at

all times

[146] The Warning is primarily in capitals and appears to be bolded. The word

“Warning” appears in very large font. The warning is also reproduced in the

Appendix.

iv)

Inspections

[147] All vehicles that enter the pit area for a Tour race must be inspected by a

Maritime Pro Stock Tour technical inspector to confirm that the driver’s motor

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vehicle conforms with Maritime Pro Stock standards. A driver is not permitted to

compete in a Tour race unless the driver’s motor vehicle passes a technical inspector

prior to the Tour race. Prior to undergoing a technical inspection, it is the ordinary

practice of Maritime Pro Stock Tour to review the registration list to confirm that the

driver has completed the Tour registration and waiver form and this practice was

followed during the 2013 racing season. Once the driver’s motor vehicle passes the

technical inspection, the technical inspector places a Maritime Pro Stock Tour sticker

specific to the Tour race on the driver’s vehicle to confirm that the driver has

registered and has passed the technical inspection for that Tour race. All drivers are

required to have a Maritime Pro Stock sticker on their motor vehicle in order to

compete in a Tour race and those without a sticker are not permitted to compete in

the Tour race. Maritime Pro Stock Tour followed this practice during the 2013

racing season.

c. Decision – Impact of Waivers and Release Documents on the

Dependents’

Claim

[148] I now move to my analysis and decision on this issue – namely, whether the

various waivers and release documents bar the dependents’ claim against the

Defendants. I return to the framework and the three-pronged test applicable to

waivers as set out by the Supreme Court of Canada in Tercon. To reiterate, the first

question is whether the exclusion clause applies; the second question is whether the

exclusion clause was unconscionable; and, the third question is whether the court

should nevertheless refuse to enforce the exclusion clause on the basis of an

overriding public policy. I turn first to the question of whether the exclusion clause

applies – namely, whether the waivers and release documents apply to the

dependents.

[149] The Plaintiff’s main argument is that given the specific language in the FAA

and in particular the decision in Donovan, the waivers and release documents do

not apply to the dependents. As noted earlier, the position of the Defendants

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evolved and at the time of the hearing, the Defendants did not strenuously contest

the Plaintiff’s arguments on this point.

[150] Significant guidance is provided in the decision of the Prince Edward Court of

Appeal in Donovan, and I will review this decision in some detail. In Donovan, the

deceased had suffered a heart attack and subsequently died. The dependents

commenced an action against the deceased’s former employer and a co-worker,

alleging work place bullying that caused stress, anxiety and fear which in turn led to

the heart attack and subsequent death. The employer argued the facts giving rise

to the dispute were work place related, governed by the collective agreement, and

therefore the court had no jurisdiction. The dependents argued: 1) the essential

character of the dispute falls outside the collective agreement and therefore the

dependents’ claim should stand; 2) section 2 of the FAA creates a separate and

independent cause of action for the dependents, of which the collective agreement

has no bearing.

[151] The critical issue before the court was whether the FAA creates an

independent cause of action for dependents (in which case the court would have

jurisdiction); or, whether a dependent’s claim is dependent upon the validity of a

deceased’s claim and therefore derivative (in which case the court would not have

jurisdiction). The court reviews the history and evolution of the dependents’ cause of

action both in terms of the common law as well the statutory regime.

[152] At common law a claimant’s cause of action died with the claimant, but as

observed in Donovan, that changed with the passage of legislation in the mid-

1800’s, the object of which was to provide some protection to dependents who had

suffered loss due to the wrongful death of a close relative. The legislation gave

certain designated relatives a cause of action for the wrongful death. However, in

order to pursue recovery, it was necessary to establish the deceased would have

been entitled to maintain a cause of action had the deceased not died. Therefore,

the claim by the dependents was “dependent on, and derived from, the validity of

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the claim by the deceased” (Donovan, para. 16). Prince Edward Island’s Legislature

passed the first Fatal Accidents Act in 1938 and the 1938 legislation, like the

predecessor legislation, tie a dependent’s claim to the validity of the deceased’s

claim. A new Fatal Accidents Act was enacted in 1978 and as observed by

Donovan, s. 2 of the 1978 legislation remains in effect today, and provides as

follows:

2.(1)

Where the death of the deceased is caused by a wrongful act,

the wrongdoer is liable to the dependants for damages under

this Act notwithstanding the death of the deceased and that

the death was caused in circumstances amounting to culpable

homicide.

(2) It shall not be a defence to a proceeding for the recovery of

damages under this Act that

(a)

the deceased was not entitled at any time to maintain

an action or recover damages in respect of any loss to

the deceased by reason of a wrongful act;

(b)

the deceased was engaged in illegal acts or the

commission of a crime at the time of the wrongful act.

[153] As observed by the court in Donovan, the question as to whether s. 2 of the

FAA creates a stand-alone cause of action is a question of statutory interpretation.

The court observes the wording of s. 2 of the 1938 legislation is dramatically

different from the 1978 legislation. Further, the court observes that had the

Legislature intended that the dependents’ right of action be derivative, the

Legislature presumably would have used the same or similar wording – but the

Legislature did not. The court concludes that the plain and ordinary meaning of s.

2(1) is that a right of action is created for the dependents and s. 2 of the FAA

creates an independent right of action for dependents. The court in Donovan

concludes the dependents’ right of action is not one that derives from the right of

the deceased:

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[24] In my view, the plain and ordinary meaning of s.2(1) is that

a right of action is created for the dependants. Section 2(2)

clearly states that it is not a defence that the deceased was not

entitled to maintain an action. The effect is that dependants’

right of action under the 1978 Fatal Accidents Act has been

changed from one that derives from the right of the deceased to

an independent cause of action. [emphasis added]

[154] The court observes as well that this conclusion is fortified when one looks at

the legislative history of the FAA, including the explanatory notes attached to the

draft Bill:

[25] …Those explanatory notes state as follows:

…While the Act has traditionally been viewed as protecting the

right of certain persons to support, the Act as framed makes that

right derivative of the deceaseds’ own cause of action and not an

independent right. The present Bill seeks to give a more

independent right of action to those whose right of support is

protected. The concept of a wrongful act is used to implement

this policy in s. 2. An act may be wrongful even if the deceased’s

own action against the wrongdoer is for some reason not

enforceable or non existent. … For this purpose the deceased is

regarded as a revenue producing asset as far as the dependants

are concerned. [emphasis added]

[155] Of particular note is that the court considers the provision in issue “in the

context of the whole statute and its purpose and objects” (Donovan para. 26) and

the court continues:

[26] …In my view, the questions of whether the defendant is or is

not a “wrongdoer” and whether the personal representative can

become involved in a dependents’ [sic] action do not affect the

existential question of whether the statutory provision creates

jurisdiction for a dependent to bring an action.

Page 53

[156] The court readily acknowledges as well that the determination that a

dependent’s action is independent makes the situation in this province unique.

However, it is within the purview of the Legislature to determine the legislative

content and the role of the courts to interpret the legislation. The court concludes,

therefore, that the dependents’ right of action is an independent or separate right of

action, and is not a right derivative from the deceased person. (Donovan, para. 28).

[157] The court in Donovan concludes the court has jurisdiction to hear a claim by

dependents of a deceased person for damages for “wrongful death,”

notwithstanding that the deceased person would not have had such a right of action

in life.

[158] While the facts in Donovan are different than the facts before me, the critical

issue is the same: whether s. 2 of the FAA creates an independent right of action

for the dependents of a deceased or whether the dependents’ claim is derivative –

that is, dependent upon the validity of the deceased’s cause of action. Therefore,

even if I were to conclude the waivers and release documents applicable to the

deceased would preclude the deceased from advancing a claim against the

Defendants (and to be clear I am not required and make no finding on this point),

the waivers do not have a similar effect in relation to the dependents’ claim. Rather,

notwithstanding the waivers and release documents, the dependents have an

independent or separate cause of action and the dependents’ cause of action is not

derivative – that is, the dependents’ claim is not dependent upon the validity of the

deceased’s cause of action.

[159] The decision in Donovan, binding on this court, addresses the derivative issue

before me: the waivers and release documents executed by the deceased do not

preclude a claim by the deceased’s dependents. As noted earlier, the position of all

Defendants in relation to the waivers evolved. In oral submissions the Defendants

acknowledge the analysis and decision of the Court of Appeal in Donovan and

certainly focused on the volenti defence as opposed to the waiver issue.

Page 54

Nevertheless, to the extent the Defendants argue the waivers and release documents

signed by the deceased bar the dependents’ claims under the FAA, the court rejects

these arguments.

[160] The first question (pursuant to the framework in Tercon) is whether the

waivers and release documents apply. I conclude they do not. There is no genuine

issue requiring a trial in relation to the waivers and release documents. The waivers

and release documents signed by the deceased do not bar the dependents’ claim

against the Defendants. I therefore dismiss the Defendants’ request that I find

judgment in favour of the Defendants based on the waivers and release documents.

[161] I move now to the volenti issue.

Issue No. 2: Volenti defence – whether the FAA is triggered

[162] This issue is really the primary issue before me. I will first summarize the

positions of the parties. I will then provide brief highlights of the law regarding

volenti. Finally, I will provide my decision on this issue.

Page 55

a.

Position of Parties

[163] Counsel for all Defendants advance strenuous arguments in relation to this

issue, namely, the volenti issue. In broad strokes, the Defendants are advancing

what could be characterized as a cascading argument. The Defendants argue: 1) the

deceased voluntarily assumed the risk of all aspects of participation in the race; 2)

because the deceased voluntarily assumed the risk, the Defendants did not owe a

duty of care to the deceased; 3) in the absence of a duty of care owed, there can be

no “wrongful act” (as defined in s. 1(n) of the FAA); 4) in the absence of a wrongful

act, the FAA is not triggered; 5) because the FAA is not triggered, the dependents

have no cause of action against the Defendants. The Defendants highlight in

particular the definition of wrongful act as set out in the FAA:

1.

(n)

“wrongful act” means a failure to exercise reasonable

skill

or care toward the deceased which causes or

contributes

added]

to the death of the deceased. [emphasis

[164] Counsel highlight the key words “toward the deceased” and emphasize that

the Legislature has chosen these words. Counsel argues that a proper interpretation

is to conclude that where the deceased has voluntarily assumed the risk, the

language in the legislation precludes an independent cause of action by the

dependents. The Defendants argue that because the deceased voluntarily assumed

the risk, there is no duty of care (there is no “failure to exercise reasonable skill or

care toward the deceased”), and there is therefore no wrongful act. Certainly the

Plaintiff argues otherwise.

[165] The Defendants argue that based on the evidence before the court (including

the significant evidence in relation to the waivers, though not exclusively the

evidence on the waivers), the deceased did voluntarily assume the risk. Counsel

highlight the waivers specific to the subject race and argue that certainly this is a

“key piece” of the volenti defence. However, counsel emphasizes there is other

Page 56

evidence before the court, including the deceased’s significant experience and

familiarity with racing.

[166] I understand the Defendants’ position to be that the decision in Donovan

does not impact on and has no application to the volenti argument advanced by the

Defendants. Counsel resist any suggestion that the volenti argument is inconsistent

with Donovan or is inconsistent with the FAA and its purpose and objects. Counsel

also rejects any suggestion that the volenti argument potentially results in relief

“through the back door which cannot be obtained through the front door.”

[167] I pause to note that at the hearing Plaintiff’s counsel urged caution and

argued that it would not be appropriate for the court to make a determination – on

the summary judgement motion – as to whether the deceased did or did not

voluntarily assume the risk. The Defendants certainly argue otherwise, and highlight

the significant evidentiary record before the court, the significant powers the court

has on a summary judgement motion and the obligation on a responding party (in

this case the Plaintiff) to put their “best foot forward” and “lead trump or risk

losing.” Nevertheless, for reasons which will become apparent, it is not necessary to

answer the question whether the deceased did or did not voluntarily assume the

risk.

[168] Plaintiff’s counsel emphasizes that the purpose of the FAA statutory regime is

aimed at protecting the rights of the dependents. Counsel also argues this

interpretation of the statutory regime – namely, of allowing an independent cause of

action by the dependents and protecting the rights of dependents – is also

illustrated in s. 3(1) of the FAA. Section 3(1) of the FAA provides that in situations

where a dependent tries to forgo or limit the dependent’s rights under the FAA, any

contract which purports to do so is void:

3.(1)

Except for the purposes of sections 232, 246 and 247 of the

Insurance Act R.S.P.E.I. 1988, Cap. I-4, it is not competent for

any dependant prior to the death of the deceased to forego

Page 57

or limit any rights or prospective rights to which a dependant

is entitled by this Act and any contract to that end is

absolutely void.

[169] The Plaintiff also advances alternative arguments based on the three-stage

test set out in Tercon (unconscionability and public policy).

b.

The Law - Voluntary assumption risk (volenti defence)

[170] As observed by the Supreme Court of Canada in the seminal decision in

Crocker, the defence of voluntary assumption of risk is based on the “moral

supposition that no wrong is done to one who consents” and that by agreeing to

assume the risk, a Plaintiff absolves the Defendant of all responsibility for the wrong

(Crocker para. 31). The Defendants argue that in this case, the deceased has

absolved the Defendents of the responsibility to “take care” and therefore there can

be no “wrongful act.”

[171] The Court in Crocker also observes however that given the volenti defence is

a complete bar to recovery and “anomalous in an age of apportionment,” the courts

have tightly circumscribed the scope of this defence. The defence only applies in

situations “where the Plaintiff has assumed both the physical and the legal risk

involved in the activity” (Crocker para. 31). As noted earlier, the Court rejected the

volenti defence in Crocker.

[172] A review of the case law illustrates that the volenti defence is narrowly – and

sparingly – applied. I understand the Defendants acknowledge that the volenti

defence is narrowly applied, but that this is essentially one of the “exceptional cases”

where it should be applied given the significant evidence before the court which

supports the volenti defence.

c.

Decision – Impact of Volenti Defence on Dependents’ Claim

Page 58

[173] The Defendants emphasize the definition of “wrongful act” as set out in s. 1(n)

of the FAA and argue there is no wrongful act “toward the deceased” because the

deceased assumed the risk and there is therefore no duty of care owed to him. I

reiterate s. 1(n):

1.

(n)

“wrongful act” means a failure to exercise reasonable

skill

or care toward the deceased which causes or

contributes

added]

to the death of the deceased. [emphasis

[174] However, this definition needs to be read within context of the entire

statutory regime, including s. 2 of the FAA and the Court of Appeal decision in

Donovan. Section 2 of the FAA bears repeating:

2.(1)

Where the death of the deceased is caused by a wrongful act,

the wrongdoer is liable to the dependants for damages under

this Act notwithstanding the death of the deceased…

(2)

It shall not be a defence to a proceeding for the recovery

of damages under this Act that

(a)

the deceased was not entitled at any time to

maintain an action or recover damages in respect

of any loss to the deceased by reason of a

wrongful act;

(b)

the deceased was engaged in illegal acts or the

commission of a crime at the time of the

act. [emphasis added]

wrongful

[175] In Donovan, the court observes that this section “clearly states that it is not a

defence that the deceased was not entitled to maintain an action” (para. 24).

[176] I return to the explanation of the volenti defence in the case law, for example,

as articulated in Crocker: no wrong is done to one who consents. This is a key

tenant of the Defendants’ arguments, namely, that there is no “wrongful act” as

Page 59

defined in the FAA. However, the Defendants’ arguments cannot be considered in a

vacuum, and must be considered within the context of the statutory regime before

me – the FAA and the purpose and objects of the whole statute. In considering the

arguably narrow interpretation of “wrongful act” as suggested by the Defendants, I

am reminded of the comments on the word “wrongdoer” as set out in Donovan,

which I repeat:

[26]

I have considered the provision in issue in the context

of the whole statute and its purpose and objects. In my view, the

questions of whether the defendant is or is not a “wrongdoer”

and whether the personal representative can become involved in

a dependants’ [sic] action do not affect the existential question of

whether the statutory provision creates jurisdiction for a

dependent to bring a action.

[177] I adopt this reasoning in the context of the Defendants’ arguments and in

particular the arguments in relation to the notion of “wrongful act.”

[178] While I appreciate the creativity of the Defendants’ argument, with respect, it

is inconsistent with the statutory regime and also inconsistent with Donovan. I note

in particular the legislative history of the FAA (as detailed in Donovan), including

the goals as expressed in the explanatory notes attached to what was then the draft

Bill (of the FAA). The explanatory notes point out the previous legislation had

traditionally been viewed as “protecting the right of certain persons to support”;

and, under the previous legislation, the only route to that support was via the

deceased’s cause of action – namely, a derivative claim. The following explanatory

notes attached to the FAA Bill (reproduced in Donovan at para. 25) resonate with

me:

An Act may be wrongful even if the deceased’s own action

against the wrongdoer is for some reason not enforceable or non

existent. [emphasis added]

Page 60

[179] I read the FAA to allow dependents of a deceased to maintain an action

against parties even though had the deceased survived, the deceased may be

precluded from maintaining an action if the deceased had voluntarily assumed the

risk. I appreciate this results in the “rights” of dependents arguably being elevated

beyond the rights a deceased would otherwise have. But that is how I read the

unique legislation in this province.

[180] I fully appreciate as well the arguably inconsistent – or at least different –

outcome this interpretation leads to where a person suffered personal injuries versus

fatal injuries. For example, if the court concluded Mr. Stevens had voluntarily

assumed the risk and if he suffered personal injuries and not fatal injuries, the

volenti defence would potentially preclude his personal injury claim. I appreciate

this may seem inconsistent to some. I appreciate as well that this interpretation

removes the availability of the volenti defence in the circumstances of a claim by the

dependents of a deceased. But the Legislature determines legislative content and I

conclude this is the very outcome prescribed by the statutory regime. This is a

policy decision the Legislature has made.

[181] In summary, with respect, to accept the Defendants’ volenti arguments, leads

to an interpretation of the FAA that cannot be supported based on the plain

meaning of the legislation, the explanatory notes of what was then the draft Bill, or

the interpretation of the FAA articulated in Donovan.

[182] Even if I were to conclude that the Defendants have established that the

deceased voluntarily assumed the risk (and to be clear I make no finding on this

point), based on the statutory regime of the FAA and the Court of Appeal decision

in Donovan, the claim of the dependents would not be barred based on the volenti

defence.

[183] There is no genuine issue requiring a trial in relation to the volenti arguments

advanced by the Defendants. Even if the deceased did voluntarily assume the risk,

the volenti defence does not bar the dependents’ claim against the Defendants. I

Page 61

therefore dismiss the Defendants’ request that I find judgment in favour of

Defendants based on the volenti defence.

IV.

Costs

[184] Pursuant to s-s. 60(1) of the Judicature Act, RSPEI 1988, c J-2.1, the court has

broad discretion in relation to costs. Further specific guidance is provided in Rule

57 and Rule 57 provides that in exercising the court’s discretion under s. 60 of the

Judicature Act, the court may consider, in addition to the result in the proceeding

and any offer to settle, a number of other factors as enumerated in Rule 57.01(1).

[185] In written submissions all parties seek costs and at the hearing, counsel made

relatively brief submissions on the issue of costs. However, there have been a

number of developments post-hearing, including a multitude of additional written

submissions. In addition, now that the parties are aware of the court’s decision, they

are in a better position to address the issue of costs.

[186] The parties are requested to advise the trial coordinator’s office within 30

days of the date of this decision as to whether the issue of costs remains

outstanding. If so, the court will provide further direction to the parties.

V.

Summary

[187] The waivers and release documents signed by the deceased do not bar the

dependents’ claim against the Defendants. Likewise, the volenti defence – even if

applicable to the deceased – does not bar the dependents’ claim against the

Defendants.

[188] On the Defendants’ motion for summary judgment, the court declines to

grant judgment in favour of the Defendants. The matter will be put back into case

management to determine appropriate future steps.

Page 62

[189] I thank all counsel for their able written and oral submissions.

____________________________

C.J.

June 28, 2022

Appendix

1.

Maritime Pro Stock Tour Waiver

Maritime Pro Stock Tour Limited

P.O. Box 3487 D.E.P.S.

Maritime

Dartmouth, Nova Scotia, B2W 5G4

PRO STOCK

(902) 481-2531 Fax (902 468-3591

www.MaritimeroStockTour.com

Tour

RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY

AGREEMENT

BY SIGNING THIS DOCUMENT YOU WILL WAVE CERTAIN LEGAL RIGHTS. PLEASE READ

CAREFULLY!

Description of events(s) covered, herein collectively called the “TOUR”: All events sanctioned

by and/or promoted by Maritime Pro Stock Tour Limited.

In full or partial consideration for allowing me to participate in, all related events and

activities of the TOUR, I hereby warrant and agree that:

1. I am familiar with and accept that there is the risk of serious injury and death in

participation, whether as a competitor, student, official or worker, in all forms of

motor sport and in particular in being allowed to enter, for any reason, any restricted

area; and

2. I have satisfied myself and believe that I am physically, emotionally and mentally able

to participate in this TOUR, and that My protective clothing, gear and equipment is

fit and appropriate for my role as a participant in the TOUR; and

3. I understand that all applicable rules for participation must be followed including the

2013 Maritime Pro Stock Tour Tech Rules and the 2013 Maritime Pro Stock Tour

Procedures, regardless of my role and that at all times during the TOUR the sole

responsibility for my personal safety remains with me; and

Page 2

4. I acknowledge that I have received a copy of the 2013Maritime Pro Stock Tour Tech

Rules and the 2013 Maritime Pro Stock Tour Procedures and agree to be bound by

them. I understand and accept that I am solely responsible for ensuring that I fully

comply with the Rules and Procedures; and

5. I will immediately remove myself from participation, and notify the nearest official, if

at any time I sense or observe any unusual hazard or unsafe condition or if I feel that

I have experienced any deterioration in my physical, emotional or mental fitness, or

that of protective clothing, gear or equipment, for continued safe participating in the

TOUR.

I UNDERSTAND AND AGREE, ON BEHALF OF MYSELF, MY HEIRS, ASSIGNS, PERSONAL

REPRESENTATIVES AND NEXT OF KIN THAT MY EXECUTION OF THIS DOCUMENT

CONSTITUTES:

1. AN UNQUALIFIED ASSUMPTION BY ME OF ALL RISKS associated with my

participation in the TOUR even if arising from the negligence or gross negligence,

including any compounding or aggravation of injuries caused by negligent rescue

operations or

Page 2

Appendix – Maritime Pro Stock Tour Waiver (continued)

2. procedures, of the Releases, as that term is defined below, and any persons

associated therewith or otherwise participating in the TOUR in any capacity, and

3. A FULL AND FINAL RELEASE AND WAIVER OF LIABILITY AND ALL CLAIMS that I have,

or may in the future have, against any person(s), entities organizations(s) associated

in any way with the TOUR including the track owners and lessees, promoters,

sanctioning bodies, racing associations, or any subdivision thereof, track operators,

sponsors, advertisers, car owners and other participants, rescue personnel, event

inspectors, underwriters, consultants and others who give recommendations,

directions or instructions or engage in risk evaluation and loss control activities,

regarding the TOUR or event premises, or anyone or more of them and their

respective directors, officers, employees, guides, contractors, agents and

representatives (all of whom are collectively referred to as “the Releasees”) from any

and all liability for any loss, damage, injury or expense that I may suffer as a result of

my use of or my presence at event facilities or my participation in any part of, or my

presence in any capacity at, the TOUR, due to any cause whatsoever, INCLUDING

NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY

STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED

UNDER THE RELEVANT OCCUPIERS LIABILITY ACT ON THE PART OF THE RELEASEES.

4. AN AGREEMENT NOT TO SUE THE RELEASEES for any loss, injury, costs or damages

of any form or type, howsoever caused or arising, and either directly or indirectly

from my participation in any aspect(s) of the TOUR; and

5. AN AGREEMENT TO INDEMNIFY, and to SAVE and HOLD HARMLESS the RELEASEES,

and each of them, from any litigation expense, legal fees, liability damage, award or

cost, of any form or type whatsoever, they may incur due to any claim made against

them or anyone of them by me or on my behalf, or that of my estate, whether the

claim is based on the negligence or the gross negligence of the Releasees or

otherwise as stated above.

6. AN AGREEMENT that this document be governed by the laws, and in the courts, of

the Province in which the TOUR event(s) occurs.

Page 3

Appendix – Maritime Pro Stock Tour Waiver (continued)

In consideration of acceptance of this application/registration/waiver, the undersigned agree

to abide by all rules and regulations as published in the 2013 Maritime Pro Stock Tour rules

and procedures and/or amendments made to such. The undersigned consents to the use,

without charge, of his/her name and/or pictures of himself/herself and his/her car, for

promotional purposes including but not limited to souvenir program publication, web site

and media kit. Deadline for souvenir program information is April 1, 2013.

FEE: This application should be accompanied by a $400 payment (payable to Maritime Pro

Stock Tour Limited) to be applied to the $400 annual competition fee. Applications received

after April 1, 2013 must be accompanied by a $600 payment. Non full-time drivers must pay

the annual competition fee or $100 per race, to be collected on race day. GOOD FAITH

PLEDGE: The undersigned acknowledges the support and effort of racing fans, sponsors, the

media, the tracks and the Promoter and agree they will compete on a best effort basis. The

undersigned additionally agrees to notify Maritime Pro Stock Tour Limited if they will not be

competing in any event of the TOUR, realizing time is of the essence in this matter.

I HAVE READ AND UNDERSTAND THIS AGREEMENT AND I AM AWARE THAT BY SIGNING

THIS AGREEMENT I AM WAIVING CERTAIN SUBSTANTIAL LEGAL RIGHTS WHICH I AND MY

HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND ASSIGNS MAY HAVE AGAINST

THE RELEASEES. I SIGN THIS DOCUMENT VOLUNTARILY AND WITHOUT INDUCEMENT.

CAR OWNER SIGNATURE: ___________________________

DRIVER SIGNATURE: _______________________________

DATE: ____________________

Page 4

Appendix (continued)

2.

Sign affixed to Oyster Bed Ticket Booths

WARNING

YOU ARE SIGNING A RELEASE.

KNOW WHAT IT SAYS…COPIES AVAILABLE.

THE HOLDER OF THIS PIT PASS ACKNOWLEDGES SIGNING THE RELEASE AND WAIVER,

IN EXCHANGE FOR ADMITTANCE TO THE RESTRICTED AREA. BY SIGNING, HOLDER

HAS WAIVED CERTAIN LEGAL RIGHTS, AND ACKNOWLEDGES THE POTENTIALLY

DANGEROUS NATURE OF ACTIVITIES IN AND ADJACENT TO RESTRICTED AREAS.

It is recommended you use hearing protection at all times

Page 5

Appendix (continued)

3.

Oyster Bed Waiver

JB MOTORSPORT

RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY

AGREEMENT

BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE

RIGHT TO SUE.

PLEASE READ CAREFULLY!

__________________________________________________

______________________

Description and location of scheduled event(s) (the “EVENT”)

Date release

signed

In full or partial consideration for allowing me to participate in all related events and

activities of the EVENT, I hereby warrant and agree that:

1.

I am familiar with and accept that there is the risk of serious injury and death in

participation, whether as a competitor, student, official or worker, in all forms of motor

sport and in particular, in being allowed to enter, for any reason, any restricted area; and

2.

I have satisfied myself and believe that I am physically, emotionally and mentally

able to participate in this EVENT, and that my protective clothing, gear and equipment is fit

and appropriate for my role as a participant in this EVENT; and

3.

I understand that all applicable rules for participants must be followed, regardless of

my role, and that at all times during the EVENT the sole responsibility for my personal

safety remains with me; and

Page 6

Appendix – Maritime Pro Stock Tour Waiver (continued)

4.

I will immediately remove myself from participating, and notify the nearest official, if

at any time I sense or observe any unusual hazard or unsafe condition or if I feel that I

have experienced any deterioration in my physical, emotional or mental fitness, or that of

my protective clothing, gear or equipment, for continued safe participation in the EVENT.

I UNDERSTAND AND AGREE, ON BEHALF OF MYSELF, MY HEIRS, ASSIGNS, PERSONAL

REPRESENTATIVES AND NEXT OF KIN THAT MY EXECUTION OF THIS DOCUMENT

CONSITUTES:

1.

AN UNQUALIFIED ASSUMPTION BY ME OF ALL RISKS associated with my

participation in this EVENT even if arising from the negligence or gross negligence,

including any compounding or aggravation of injuries caused by negligent rescue

operations or procedures, of the Releasees, as that term is defined below, and any

persons associated therewith or otherwise participating in the EVENT in any

capacity; and

Page 7

Appendix – Oyster Bed Waiver (continued)

2.

A FULL AND FINAL RELEASE AND WAIVER OF LIABILITY AND ALL CLAIMS that I

have, or may in the future have, against any person(s), entities or organization(s)

associated in any way with the EVENT including the track owners and lessees,

promoters, sanctioning bodies, racing associations, or any subdivision thereof, track

operations, sponsors, advertisers, car owners and other participants, rescue

personnel, event inspectors, underwriters, consultants and others who give

recommendations, directions or instructions or engage in risk evaluation and loss

control activities, regarding the EVENT or event premises, or any one or more of

them and their respective directors, officers, employees, guides, contractors, agents

and representatives (all of whom are collectively referred to as “the Releasees”) from

any and all liability for any loss, damage, injury or expense that I may suffer as a

result of my use of or my presence at the event facilities or my participation in any

part of, or my presence in any capacity at, the EVENT, due to any cause whatsoever,

INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, OR

BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY

OF CARE OWED UNDER THE RELEVANT OCCUPIERS LIABILITY ACT ON THE PART OF

THE RELEASEES.

3.

4.

AN AGREEMENT NOT TO SUE THE RELEASEES for any loss, injury, costs or damages

of any form or type, howsoever caused or arising, and whether directly or indirectly

from my participation in any aspect(s) of the EVENT; and

AN AGREEMENT TO INDEMNIFY, and to SAVE and HOLD HARMLESS the RELEASEES,

and each of them, from any litigation expense, legal fees, liability, damage, award or

cost, of any form or type whatsoever, they may incur due to any claim made against

them or any one of them by me or on my behalf, or that of my estate, whether the

claim is based on the negligence or the gross negligence of the Releasees or

otherwise as stated above.

5.

AN AGREEMENT that this document be governed by the laws, and in the court, of

the Province in which the EVENT occurs.

Page 8

Appendix – Rules (continued)

I HAVE READ AND UNDERSTAND THIS AGREEMENT AND I AM AWARE THAT BY SIGNING

THIS AGREEMENT I AM WAIVING CERTAIN SUBSTANTIAL LEGAL RIGHTS WHICH I AND MY

HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND ASSIGNS MAY HAVE AGAINST

THE RELEASEES.

I SIGN THIS DOCUMENT VOLUNTARILY AND WITHOUT INDUCEMENT

Signature of Participant

Witness

Print Name of Participant

Signature of

____________________

_____________________

_________________

Page 9

Appendix (continued)

4.

Portions of Civil Procedure Rules

20.01 (3) A defendant may, after delivering a statement of

defence, move with supporting affidavit material or other

evidence for summary judgment dismissing all or part of

the claim in the statement of claim.

20.02 (1) An affidavit for use on a motion for summary

judgment may be made on information and belief as

provided in subrule 39.01(4), but, on the hearing of the

motion, the court may, if appropriate, draw an adverse

inference from the failure of a party to provide the

evidence of any person having personal knowledge of

contested facts.

(2) In response to affidavit material or other evidence

supporting a motion for summary judgment, a

responding party may not rest solely on the allegations

or denials in the party’s pleadings, but must set out, in

affidavit material or other evidence, specific facts showing

that there is a genuine issue requiring a trial.

20.04 (1) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue

requiring a trial with respect to a claim or defence;

or

(b) the parties agree to have all or part of the claim

determined by a summary judgment and the court

is satisfied that it is appropriate to grant summary

judgment.

Page 10

Appendix – Rules (continued)

…

(3) Where the court is satisfied that the only genuine issue

is a question of law, the court may determine the

question and grant judgment accordingly.

(4) Where the plaintiff is the moving party and claims an

accounting and the defendant fails to satisfy the court

that there is a preliminary issue to be tried, the court

may grant judgment on the claim with a reference to

take the accounts.

(5) In determining under clause 20.04(1) whether there is

a genuine issue requiring a trial, the court shall

consider the evidence submitted by the parties and, if

the determination is being made by a judge, the judge

may exercise any of the following powers for the

purpose, unless it is in the interest of justice for such

powers to be exercised only at a trial:

(a)weighing the evidence;

(b)evaluating the credibility of a deponent;

(c)drawing any reasonable inference from the

evidence.

(6) A judge may, for the purposes of exercising any of the

powers set out in subrule (5), order that oral evidence

be presented by one or more parties, with or without

time limits on its presentation.

25.06 (2) A party may raise any point of law in a pleading, but

conclusions of law may be pleaded only if the material

facts supporting them are pleaded.

25.07 (4) In a defence, a party shall plead any matter on which

the party intends to rely to defeat the claim of the

opposite party and which, if not specifically pleaded,

Page 11

Appendix – Rules (continued)

might take the opposite party by surprise or raise an

issue that has not been raised in the opposite party' s

pleading.

25.08 (2) A party who intends to reply in response to a defence

on any matter that might, if not specifically pleaded,

take the opposite party by surprise or raise an issue

that has not been raised by a previous pleading shall

deliver a reply setting out that matter, subject to

subrule 25.06(5) (inconsistent claims or new claims).

26.01

On motion at any stage of an action the court shall

grant leave to amend a pleading on such terms as are

just, unless prejudice would result that could not be

compensated for by costs or an adjournment.

Page 12

Appendix - FAA (continued)

5.

Portions of Fatal Accidents Act (“FAA”)

1.

In this Act

. . .

(f)

“dependant” means

(i)

(ii)

the surviving spouse of the deceased,

a child or grandchild of the deceased,

(iii) a parent of the deceased,

(iv) a spouse of a child, grandchild or parent of the

deceased,

(v)

a person divorced from the deceased who was

dependent upon the deceased for maintenance or

support at the time of deceased’s death or who was

entitled to maintenance or support under any

contract or judgment of any court in this province or

elsewhere,

(vi) repealed by 2008, c.8,s.11(2)

(vii) any other person who for a period of at least three

years immediately prior to the death of the deceased

was dependent upon the deceased for maintenance

and support;

. . .

(m)

“wrongdoer” means a person who commits a wrongful

act and includes any other person liable for such wrongful

act and the respective personal representatives, successors

or assigns of such persons in this province or elsewhere

but does not include an employer or worker in respect of

a wrongful act to which subsection13(1) of the Workers’

Compensation Act R.S.P.E.I. 1988, Cap. W-7, applies or

their respective personal representatives, successors or

assigns in this province or elsewhere;

Page 13

Appendix – Rules (continued)

(n)

“wrongful act” means a failure to exercise reasonable skill

or care

toward the deceased which causes or

contributes to the death of the deceased. 1978, c.7; s.1.

1987;c.8, schedule; 2008,c.8,s.11(2).

2.

(1)

(2)

Where the death of the deceased is caused by a wrongful

act, the wrongdoer is liable to the dependants for

damages under this Act notwithstanding the death of the

deceased and that the death was caused in circumstances

amounting to culpable homicide.

It shall not be a defence to a proceeding for the recovery

of damages under this Act that

(a) the deceased was not entitled at any time to

maintain an action or recover damages in respect of

any loss to the deceased by reason of a wrongful act;

(b) the deceased was engaged in illegal acts or the

commission of a crime at the time of the wrongful

act.

3.

(1)

Except for the purposes of sections232, 246 and 247 of

the Insurance Act R.S.P.E.I. 1988, Cap. I-4, it is not

competent for any dependant prior to the death of the

deceased to forego or limit any rights or prospective

rights to which a dependant is entitled by this Act and any

contract to that end is absolutely void.

6.

(1)

Every proceeding under this Act shall be for the benefit of

the dependants.

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Appendix – Rules (continued)

(2)

Subject to subsection(3) and section7, in every proceeding

under this Act, such damages as are attributable to the

loss of pecuniary benefit or reasonable expectation of

pecuniary benefit by the dependants resulting from the

death of the deceased shall be awarded to the

dependants for whose benefit the proceeding is brought.

8.

(3)

Where the death of the deceased is caused by, or partly

by, the failure by the deceased to exercise reasonable skill

and care for his own safety, the damages that otherwise

would be awarded under this Act shall be reduced in

proportion to the degree in which the court finds that the

deceased’s failure caused or contributed to his death.

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Appendix (continued)

6.

Validity of exclusion clause and three-pronged test:

Tercon Contractors Ltd. v. British Columbia (Minister of

Transportation & Highways), 2010 SCC 4

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, 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.

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Appendix (continued)

7.

Validity of Release and three-stage analysis:

Isildar v. Kanata Diving Supply, 2008 CarswellOnt 3580

634

Based on case law as it has developed, a three

staged analysis is required to determine whether a signed

release of liability is valid. The analysis requires a consideration

of the following:

1. Is the release valid in the sense that the plaintiff knew what

he was signing? Alternatively, if the circumstances are such that

a reasonable person would know that a party signing a

document did not intend to agree to the liability release it

contains, did the party presenting the document take reasonable

steps to bring it to the attention of the signator?

2. What is the scope of the release and is it worded broadly

enough to cover the conduct of the defendant?

3. Whether the waiver should not be enforced because it is

unconscionable?

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Appendix (continued)

8.

Law regarding release document:

Karroll v. Silver Star Mountain Resorts Ltd., 1988 3094

(BC SC)

[16]The key, in my opinion, is recognition of the limited

applicability of the rule that a party proffering for signature

an exclusion of liability must take reasonable steps to bring it

to the other party’s attention. It is not a general principle of

contract law establishing requirements which must be met in

each case. Rather, it is a limited principle, applicable only in

special circumstances.

[17]One must begin from the proposition set out in L’Estrange v.

F. Graucob, supra, at pp. 406-407, that “where a party has

signed a written agreement it is immaterial to the question of

his liability under it that he has not read it and does not

know its contents”. Maugham L.J. went on to state two

exceptions to this rule. The first is where the document is

signed by the plaintiff “in circumstances which made it not

her act” (non est factum). The second is where the

agreement has been induced by fraud or misrepresentation.

[18] To these exceptions a third has been added. Where the

party seeking to enforce the document knew or had reason

to know of the other’s mistake as to its terms, those terms

should not be enforced: Waddams, The Law of Contract,

quoted with approval in Tilden Rent-A-Car v. Clendenning,

supra, per Dubin J.A. at p. 605. This new exception is entirely

in the spirit of the two recognized in 1934 in L’Estrange v. F.

Graucob Ltd. Where a party has reason to believe that the

signing party is mistaken as to a term, then the signing party

cannot reasonably have been taken to have consented to

that term, with the result that the signature which

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Appendix – Karroll (continued)

purportedly binds him to it is not his consensual act.

Similarly, to allow someone to sign a document where one

has reason to believe he is mistaken as to its contents is not

far distant from active misrepresentation.

…

[22]It emerges from these authorities that 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. It is only where the circumstances are such that a

reasonable person should have known that the party signing

was not consenting to the terms in question that such an

obligation arises. For to stay silent in the face of such

knowledge is, in effect, to misrepresent by omission.

[23]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. This list is not exhaustive. Other

considerations may be important, depending on the facts of

the particular case.

Page 19

Appendix (continued)

9.

Portions of Occupiers’ Liability Act (“OLA”)

1. (a)

“occupier” includes

(i) a person who is in physical possession of premises, or

(ii) a person who has responsibility for and control over

the condition of premises or the activities there carried on,

or control over persons allowed to enter the premises,

notwithstanding that there is more than one occupier of

the same premises;

(b)

“premises” means lands and structures, or either of them,

and includes trailers and portable structures designed or

used for residence, business or shelter.

3.

(1)

An occupier of premises owes a duty to take such care as in

all the circumstances of the case is reasonable to see that persons

entering on the premises, and the property brought on the premises

by those persons, are reasonably safe while on the premises.