Kempf v. Nguyen,

• Jurisdiction: Ontario
• Judge: Laskin, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2015), 328 O.A.C. 276 (CA),2015 ONCA 114
• Date: 05 June 2014

Kempf v. Nguyen (2015), 328 O.A.C. 276 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.011

Rolf Kempf, Angela Kempf, Severin Kempf (a minor) and Raphael Kempf (a minor) by their Litigation Guardian Angela Kempf (plaintiffs/respondents) v. Thi Thanh Nguyen (defendant/appellant)

(C56989; 2015 ONCA 114)

Indexed As: Kempf v. Nguyen

Ontario Court of Appeal

Laskin, Rouleau and Epstein, JJ.A.

February 18, 2015.

Summary:

In June 2008, over 12,000 cyclists, including Nguyen and Kempf, participated in a charity bicycle ride. All participants signed a waiver. During a sudden swerve to the left, Nguyen clipped Kempf's front wheel with his back wheel. Kempf fell and suffered serious injuries. In April 2009, Kempf sued Nguyen in negligence for damages arising from the accident. In his amended statement of defence, Nguyen pled, among other things, that Kempf had voluntarily assumed the risk of the ride ("volenti") and that Kempf had himself been negligent. The parties settled the issue of damages. Nguyen applied to strike the jury notice.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 1129, struck the jury notice.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 1977, held that Nguyen was liable. By signing the waiver, Kempf did not agree to give up his right to sue Nguyen for negligent conduct during the ride. The court held that Nguyen's actions were negligent and caused the collision between the parties, resulting in damages to Kempf. Nguyen appealed.

The Ontario Court of Appeal, Laskin, J.A., dissenting, allowed the appeal on the ground that the trial judge erred in striking the jury notice. The court ordered a new trial on the issue of liability to be heard by a judge and a jury.

Practice - Topic 5102

Juries and jury trials - Right to a jury - Setting aside a jury notice - Section 108(2) of the Courts of Justice Act contained a list of claims for relief that could not be tried by a jury - Declaratory relief was one such claim - The Ontario Court of Appeal held that volenti was not a claim for declaratory relief; rather, it was a full defence to a finding of negligence - See paragraphs 48 to 51.

Practice - Topic 5102

Juries and jury trials - Right to a jury - Setting aside a jury notice - Over 12,000 cyclists, including Nguyen and Kempf, participated in a charity bicycle ride - All participants had signed a waiver - During a sudden swerve to the left, Nguyen clipped Kempf's front wheel with his back wheel - Kempf fell and suffered serious injuries - Kempf sued Nguyen in negligence - Nguyen pled that Kempf had voluntarily assumed the risk of the ride ("volenti") and that Kempf had himself been negligent - According to Nguyen, the waiver was relevant to the assumption of risk and contributory negligence - The trial judge struck the jury notice and held that Nguyen was liable - Nguyen appealed - The Ontario Court of Appeal allowed the appeal, holding that the trial judge erred in striking the jury notice - The court stated that "The limited application of the waiver is hardly beyond the ken of members of a jury. I cannot see how a properly instructed jury would have difficulty understanding that the document was not a bar to Kempf's action. The waiver is a contract between the participants and the ride organizers. It is not a contract between Kempf and Nguyen, nor does it contain any terms that release other ride participants from liability for their negligence. In any event, civil juries in Ontario are able to decide issues involving contracts." - See paragraphs 52 to 62.

Practice - Topic 9220

Appeals - New trials - General - [See Practice - Topic 9228 ].

Practice - Topic 9224

Appeals - New trials - Grounds - General - [See Practice - Topic 9228 ].

Practice - Topic 9228

Appeals - New trials - Grounds - Reasons for judgment insufficient - Over 12,000 cyclists, including Nguyen and Kempf, participated in a charity bicycle ride - All participants had signed a waiver - During a sudden swerve to the left, Nguyen clipped Kempf's front wheel with his back wheel - Kempf fell and suffered serious injuries - Kempf sued Nguyen in negligence - Nguyen pled that Kempf had voluntarily assumed the risk of the ride ("volenti") and that Kempf had himself been negligent - According to Nguyen, the waiver was relevant to the assumption of risk and contributory negligence - The trial judge struck the jury notice and held that Nguyen was liable - Nguyen appealed - The Ontario Court of Appeal allowed the appeal, holding that the trial judge erred in striking the jury notice - The court ordered a new trial - First, the trial judge made no reference to contributory negligence in her reasons for judgment - Second, despite the trial judge's reasons for preferring Kempf's evidence over Nguyen's, a jury could assess credibility differently - Third, in deciding negligence and possibly apportioning it, a jury acting reasonably could take a different approach to the standard of care than the trial judge - There was evidence upon which a jury properly instructed and acting reasonably could come to a different conclusion than the trial judge had reached - While ordering a new trial was to be avoided where possible, in these circumstances, a new trial was necessary - See paragraphs 67 to 73.

Torts - Topic 6725

Defences - Consent - Assumption of risk - General - [See first Practice - Topic 5102 ].

Torts - Topic 6731

Defences - Consent - Assumption of risk - Implied consent - Dangerous activities - [See second Practice - Topic 5102 ].

Torts - Topic 6735

Defences - Consent - Assumption of risk - Express consent - General - [See second Practice - Topic 5102 ].

Cases Noticed:

Cowles et al. v. Balac et al. (2006), 216 O.A.C. 268; 83 O.R.(3d) 660; 273 D.L.R.(4th) 596 (C.A.), leave to appeal refused (2007), 367 N.R. 400 (S.C.C.), refd to. [paras. 43, 118].

King v. Colonial Homes Ltd., [1956] S.C.R. 528, refd to. [paras. 43, 140].

Kostopoulos v. Jesshope (1985), 6 O.A.C. 326; 50 O.R.(2d) 54 (C.A.), leave to appeal refused (1985), 61 N.R. 319 (S.C.C.), refd to. [paras. 43, 118].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [paras. 43, 96, 120, footnote 4].

Hunt v. Sutton Group Incentive Realty Inc. et al. (2002), 162 O.A.C. 186; 60 O.R.(3d) 665 (C.A.), refd to. [paras. 43, 119].

Brady v. Lamb et al. (2005), 205 O.A.C. 253; 78 O.R.(3d) 680 (C.A.), refd to. [para. 43].

Dube v. Labar, [1986] 1 S.C.R. 649, refd to [para. 49].

Stein v. Lehnert, [1963] S.C.R. 38, refd to. [para. 49].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 55].

Hamstra et al. v. British Columbia Rugby Union et al., [1997] 1 S.C.R. 1092; 211 N.R. 89; 89 B.C.A.C. 161; 145 W.A.C. 161, refd to. [paras. 55, 119].

Wadhwani v. State Farm Mutual Automobile Insurance Co., [2013] O.A.C. Uned. 544; 2013 CarswellOnt 15078; 2013 ONCA 662, refd to. [para. 58].

Barlow v. Citadel General Assurance Co., [2009] O.A.C. Uned. 63; 94 O.R.(3d) 399; 2009 ONCA 106, refd to. [para. 58].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 60].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 103].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 103].

Fink v. Greeniaus (1973), 2 O.R.(2d) 541 (H.C.), refd to. [para. 108].

Gilsenan v. Gunning (1982), 137 D.L.R (3d) 252 (Ont. H.C.), refd to. [para. 108].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 116].

Khan v. College of Physicians and Surgeons (Ont.) et al. (1992), 57 O.A.C. 115; 9 O.R.(3d) 641 (C.A.), refd to. [para. 140].

Authors and Works Noticed:

Barnes, John, Sports and the Law in Canada (3d Ed. 1996), p. 279 [para. 106].

Linden, Allen M. , and Feldthusen, Bruce, Canadian Tort Law (9th Ed. 2011), p. 520 [para. 50].

Counsel:

Tim Buckley and Douglas Smith, for the appellant;

Patrick J. Monaghan and Christine Matthews, for the respondents.

This appeal was heard on June 5, 2014, by Laskin, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal. The court delivered the following reasons for judgment on February 18, 2015, which included the following opinions:

Epstein, J.A. (Rouleau, J.A., concurring) - see paragraphs 1 to 79;

Laskin, J.A., dissenting - see paragraphs 80 to 150.