A. The Master allowed a claim for a sports injury to be amended to add breach of fiduciary duty as a cause of action in the teacher-student situation, and held that while sports participants are taken to consent to the risks inherent in the sport, there are exceptions, including with respect to intentionally injurious conduct.
Birss v Tien Lung Taekwon-Do Club, 2017 ABQB 518, per Master L.A. Smart
I. FACTS AND ISSUES
The Plaintiff, Birss, suffered a subdural hematoma after taking part in a black belt test organized and run by the Defendants/Applicants, Tien Lung Taekwon-Do Club and Authentic South Side Taekwon-Do Club.
In September 2007 (the “September Agreement”) Birss signed up for a trial taekown-do membership, which included a two-page membership agreement that contained a waiver of liability in the following terms:
THE MEMBER/PARENT/GUARDIAN agrees to undertake sole responsibility in attending the facilities of Tien Lung. . . . The Member/Parent/Guardian agrees to hold Tien Lung, its officers, agents and employees harmless from any claim, liability or demand of any kind or on account of personal injury, property damage or loss of any kind, in whole or in part, upon the members/guests claim that he or she had not agreed to assume the risks specified above. . . . I understand and agree that the school will not be held liable for injuries, damages, etc. not caused by or resulting from the negligence of the owners, operators, employees or persons in charge of such establishment.
After his trial membership Birss signed up for a full membership in November 2007 (the “November Agreement”), which included a different liability waiver, on a page with the heading: “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!”. The November Agreement provided as follows:
I am aware that activities in any way relating to Taekwon-Do, including Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition (”Taekwon-Do Activities”) involves many RISKS AND DANGERS. I understand and acknowledge that known and unknown risks and dangers associated with my/my child’s participation in Taekwon-Do Activities may result in personal injury, death, property damage or loss. I understand as well that personal injury, death, property damage or loss may be caused or contributed to by the NEGLIGENCE OR CARELESSNESS of myself/my child or others.
In consideration of T.L. Taekwon-Do Development Ltd., Tien Lung Taekwon-Do Club, Terrence Joseph Wisniewski, Kari Leah Wisniewski, Authentic South Side Taekwon-Do Club, Diversified Health Lifestyles Systems Ltd., Marc Douglas Gaudet, Evelyn Lisa Charlotte Gaudet and any of their officers, directors, employees, contractors, sub-contractors, volunteers or agents (the “Taekwon-Do Entities”) allowing my/my child’s participation in all activities in any way relating to Taekwon-Do, including without limitation, Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition (”Taekwon-Do Activities”), I agree, on behalf of myself, my heirs, assigns, personal representatives and next-of-kin, that:
a. I ASSUME AND ACCEPT, WITHOUT LIMITATION, ALL RISKS AND DANGERS associated with my/my child’s participation in Taekwon-Do Activities.
. . .
b. I RELEASE, WAIVE AND FULLY DISCHARGE the Taekwon-Do Entities and any other person, organization or entity involved in Taekwon-Do Activities from any and all claims, demands, obligations and liabilities of any kind or nature whatsoever arising from or connected, directly or indirectly with my/my child’s presence at or participation in Taekwon-Do Activities due to any cause whatsoever, including NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF ANY STATUTORY DUTY OR OTHER DUTY, on the part of the Taekwon-Do Entities or otherwise, and I accept that this release covers and includes, but is not limited to, all unknown and unforeseen claims, injuries, damages and losses, and any consequences thereof.
c. I will INDEMNIFY AND HOLD HARMLESS the Taekwon-Do Entities from any damage, loss, liability, legal costs and other expenses that they may suffer or incur by reason of any claim against them arising from or connected, directly or indirectly, with my/my child’s presence at or participation in Taekwon-Do Activities, including any claim based on NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF STATUTORY DUTY OR OTHER DUTY.
I HAVE READ THIS DOCUMENT THOROUGHLY.
I UNDERSTAND THAT BY SIGNING THIS DOCUMENT, I GIVE UP IMPORTANT LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE. I UNDERSTAND THAT THE WORDS “I”, “MY” AND “MYSELF” HEREIN SHALL IMBIBE AND APPLY TO ANY SIGNATORIES TO THIS AGREEMENT.
Birss went on to participate in taekwon-do for four years before his black belt test. He had observed a black belt test before participating in his own and knew that he would have to participate in three sparring matches as part of the test and that head contact might occur during the test.
Partway through the third sparring match, the operator of the Defendant taekwon-do studio pulled out Birss’s sparring partner and substituted the Defendant Pagnotta, an experienced taekwon-do practitioner with a third degree black belt with competition experience at the national and international level. Cell phone video of the matches showed that Pagnotta was “the most aggressive opponent” Birss sparred with and that once Pagnotta entered the match “the intensity of the sparring escalated”. At one point an unidentified person intervened to allow Birss to retrieve his mouth guard, which had been knocked from his mouth. Of the head strikes Birss suffered from his sparring partners, those delivered by Pagnotta “were markedly more forceful”. Shortly after completing his third match, Birss complained of a headache, vomited and lost consciousness before being rushed to hospital.
The Plaintiff sued in battery and negligence.
The Plaintiff applied to amend his Statement of Claim to add a claim for breach of fiduciary duty on the basis of the teacher-student relationship, and the Defendants applied for summary dismissal on the basis that the defence of consent, supported by the liability waivers amounted to a complete defence.
II. HELD: For the Plaintiff; amendment to Statement of Claim granted; summary dismissal application dismissed.
1. Master Smart allowed the amendment:
a. He noted that the threshold for allowing an amendment was low, that the “classic rule is that an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side, and even that is no obstacle if it is repaired” (Balm v 3512061 Canada Ltd, 2003 ABCA 98 at para 43”.
i. The Court held that party seeking the amendment does not have to demonstrate that the amendment will be proven at trial, but there must be some small evidence produced to justify the amendment (Attila Dogan Construction & Installation Co v AMEC Americas Ltd, 2014 ABCA 74 (CanLII) at para 26). The overarching threshold for allowing an amendment to be made is low and it follows that the threshold for finding that an amendment is hopeless is high.
ii. Master Smart felt it unnecessary at this stage to determine whether the Plaintiffs would be successful at trial on this cause of action as there was some evidence that can justify the amendment (Balm at para 29).
iii. The Court found that the relationship between Mr. Birss and the Defendants was a student-teacher relationship. Taekwon-do practice had a heightened risk which could mean there were elevated duties owed. With the “classic rule” in mind, the amendment to the Statement of Claim was granted.
b. Master Smart held that the law has recently expanded the scope of fiduciary duty to include ad hoc fiduciary relationships
28 More recently, the law has expanded to allow for the recognition of ad hoc fiduciary relationships. Characteristics of these relationships were set out by Wilson J., dissenting, in Frame v. Smith,  2 S.C.R. 99 (S.C.C.) at 136, (1987), 42 D.L.R. (4th) 81 (S.C.C.) [Frame], and adopted in subsequent Supreme Court decisions (see eg LAC Minerals at 599):
1. The fiduciary has scope for the exercise of some discretion or power;
2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
c. However, the Court held that “this does not mean that courts have been given carte blanche to add the fiduciary label to any relationship involving some imbalance” between the parties (para. 31).
2. Master Smart set out the requirements for a summary dismissal:
a. As to the requirements for summary dismissal, the Court held that per Rule 7.3 it will only be granted on the following grounds:
i. there is no defence to a claim or part of it;
ii. there is no merit to a claim or part of it;
iii. the only real issue is the amount to be awarded.
b. The Court held that the onus is on the party bringing the application to meet the burden of proof. If this duty is discharged based on a balance of probability, the burden will shift to the non-moving party to show there is merit to their claim. (Can v Calgary Police Service, 2014 ABCA 322 (CanLII) at para 80, citing Beier v Proper Cat Construction Ltd, 2013 ABQB 351 (CanLII) at paras 66-67).
3. Master Smart held that the evidence in favour of the waiver amounting to a defence was not sufficiently clear to grant summary dismissal:
a. Given that the defence of implied consent acts as a complete bar to recovery, courts have elected only to apply it “in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity” (Crocker v Sundance Northwest Resorts Ltd, 1988 CanLII 45 (SCC),  1 SCR 1186 at 1202 [Crocker]). The risks must be clear to the plaintiff and accepted (express or implied through conduct). Acceptance will only be present where “there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.” (Dube v Labar, 1986 CanLII 67 (SCC),  1 SCR 649 at 658). It should be noted that some conduct will be so far removed from the inherent risk of an activity that it cannot be within the scope of implied consent.
b. The Court held that if the signing party is mistaken as to a term of the waiver, he/she cannot be held to consented to that term.
c. The Court held that the Plaintiff Birss was bound by the liability waiver:
42 It is first necessary to determine whether Mr. Birss was bound by the terms of the waivers he signed (see eg Van Hooydonk v. Jonker, 2009 ABQB 8 (Alta. Q.B.) at para 36, (2009), 466 A.R. 197 (Alta. Q.B.) [Van Hooydonk]). In Karroll v. Silver Star Mountain Resorts Ltd. [1988 CarswellBC 439 (B.C. S.C.)], 1988 CanLII 3294 at para 17 [Karroll], McLachlin CJSC (as she then was) held that “[w]here 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 purportedly binds him to is it not his consensual act.” In situations where a reasonable person should have known that the signing party was mistaken, the party tendering the document is required to take reasonable steps to bring the terms to the signing party’s attention (Karroll at para 16).
. . .
46 In Arndt v. Ruskin Slo Pitch Assn., 2011 BCSC 1530 (B.C. S.C.) at para 27, Humphries J. reviewed a number of cases concerning the binding nature of waivers in sporting and recreation contexts. This survey of case law illustrated that courts will typically find that plaintiffs are bound to the waivers they signed, so long as the waiver was not “hidden” in a document such as an entry form or payment plan (see eg Crocker, Parker v. Ingalls, 2006 BCSC 942 (B.C. S.C.)).
47 With respect to the facts of this case, the waiver of liability terms in both the September and November Agreements were plain and clear in the documents proffered to Mr. Birss. There is nothing in the evidence to suggest that Mr. Birss was pressured to sign anything, and indeed Mr. Gaudet was present at the time of signing the November Agreement to answer any questions. In my view the waivers were binding upon Mr. Birss.
b. Master Smart held that sports participants are generally held to be consenting to the inherent risks of the activity, but there are exceptions:
33 It is generally accepted that by agreeing to participate in an activity, the participant is accepting or consenting to the inherent risks of the activity. However, in Levita v. Crew, 2015 ONSC 5316 (Ont. S.C.J.) ([Levita], Firestone J. surveyed a number of cases and found that some conduct is so far removed from the inherent risk of an activity that it cannot be within the scope of implied consent. Such conduct includes (Levita at paras 88-91):
- “unprovoked battery unrelated to the advancement of the game” or “a deliberate unilateral attack” (from Leonard v. Dunn, 2006 CanLII 33419 [Leonard]);
- intentionally injurious conduct (from St. Laurent v. Bartley,  8 W.W.R. 373 (Man. Q.B.));
- negligence of other players (from Kempf v. Nguyen, 2013 ONSC 1977 (Ont. S.C.J.)); and
- reckless conduct (Nichols v Sibbick, 2005 CanLII 23685).
e. However, it was not clear that the waivers applied with respect to “willful or wanton misconduct, or to battery” so as to provide give rise to a full defence in this case:
50 The Plaintiffs assert that while the November Agreement provides for a waiver of liability with respect to negligence and gross negligence, it does not apply to wilful or wanton misconduct, or to battery. In support of this proposition, they cite the case of Leonard v. Dunn [2006 CarswellOnt 5975 (Ont. S.C.J. [In Chambers])], in which the defendant hockey player punched the plaintiff hockey player in the face after the referee blew the whistle to stop play. The waiver in Leonard named negligence but the Ontario Superior Court of Justice found that this was not enough to offer protection from a battery claim at para 16:
However, if the purported intent of the document is that a signatory by signing the document waives and releases a releasee from injury caused by a battery, the document could and ought to have been clear and unequivocal in so stating. A release in these circumstances should be construed contra proferentem and strictly, particularly vis a vis the defendant, whose position is derivative of that of the facility and who arguably has given no consideration.
51 The Court continued at para 20:
However fraught with potential for injury, hockey is nevertheless a sport, a contest of skill and strategy to be carried out in competitive but sportsmanlike manner. It is not a bar room brawl. When a player signs the game sheet agreeing to the terms of the waiver, he is assuming the risks inherent in playing the game; he is not volunteering to be the recipient of a battery (Emphasis added by Master Smart).
52 Based on the reasoning in Leonard in light of the evidentiary absences and conflicts noted in the above discussion of implied consent, it is not manifestly clear that the waivers signed by Mr. Birss would constitute a full defence to the alleged battery.
The Court noted the Plaintiff’s argument that the amendment to add a claim for breach of fiduciary duty was significant in this case because the waivers did not cover breaches of fiduciary duty (para 18).