There was no place on agreement for member to sign or initial provision

Torts - Negligence - Defences

Gym member joined gym for one year after trial membership. Membership agreement included exclusion of liability provision covering negligence. Member was injured when she tripped and fell on dumbbell she was using during parts of exercise class at gym. Member brought action against gym for damages for negligence. Gym brought successful motion for summary judgment dismissing action, and member’s action was dismissed. Motion judge found that gym could not rely on exclusion of liability clause, but that gym was not negligent in any event. Motion judge found that s. 5(3) of Occupiers’ Liability Act required gym to take reasonable steps to bring provision to attention of member when she signed agreement, and that agreement itself did nothing to draw provision to member’s attention. Motion judge found that provision was on reverse of agreement under general heading “Membership Agreement – Terms and Conditions” and in tightly printed “fine print”. Motion judge found that there was no place on agreement for member to sign or initial provision, which would have provided evidence that gym had made reasonable efforts to bring provision to member’s attention. Member appealed. Appeal dismissed. There was no basis to interfere with motion judge’s findings of fact and mixed fact and law.

Hosseinkhani v. QK Fitness Inc. (2019), 2019 CarswellOnt 14752, 2019 ONCA 718, Alexandra Hoy A.C.J.O., I.V.B. Nordheimer J.A., and M. Jamal J.A. (Ont. C.A.); affirmed (2019), 2019 CarswellOnt 9, 2019 ONSC 70, R.E. Charney J. (Ont. S.C.J.).

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