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Tort Law - Defences - Voluntary assumption of risk (volenti non fit injuria) - Waiving right of action - Sporting events

Thursday, December 08, 2016 @ 7:00 PM  

Appeal by the plaintiff from the motion judge’s decision refusing to determine a question of law and to strike out a paragraph of the Statement of Defence. When the plaintiff was 15 years of age, he was rendered a paraplegic as a result of an accident that occurred during a motocross competition. Prior to participating in the event, the plaintiff and his father both signed a waiver in favour of some of the respondents. The plaintiff commenced an action through his litigation guardian, in which he alleged that the accident was the direct result of the negligence of the respondents. Those to whom the waiver applied relied on it as an absolute defence to the action and pleaded it in the Statement of Defence. Following the closure of pleadings, the plaintiff filed a motion seeking the determination of the question of whether the waiver barred his right of action. He also sought an order striking out the paragraph of the Statement of Defense that referred to the waiver. The motion judge dismissed the motion. He found that Rule 23 was unsuited for the resolution of unsettled, complex and difficult questions and that any decision on the question would transcend the parties. The plaintiff appealed, arguing that the judge erred in his application of Rule 23, in refusing to determine the question of law and in refusing to strike the impugned paragraph.

HELD: Appeal dismissed. The motion judge’s decision was not unreasonable. The question the plaintiff sought to have determined raised a question of law and a question of law and fact. Both questions were more appropriately addressed as part of the entire proceeding. The issue to be determined was complex and could have a far-reaching impact. It could not be said that the waiver defence could not possibly succeed at trial.