Case Summary: Quilichini v Wilson's Greenhouse & Garden Centre Ltd. And Velocity Raceway Ltd.

An electronic contract, executed electronically, including a liability exclusion form, was held to be effective to bar a defendant's liability for a sports accident.

Quilichini v. Wilson's Greenhouse & Garden Centre Ltd. and Velocity Raceway Ltd., 2017 SKQB 10, per Scherman, J.

Facts + Issues

The Plaintiff, Quilichini, sued for damages for personal injury suffered while driving a go-kart owned and operated by the Defendant, Velocity Raceway (Velocity), on Velocity's premises. Notwithstanding a factual dispute as to the cause of the accident, Velocity applied for summary dismissal on the grounds that Quilichini had electronically completed an electronic contract, which contained a waiver form in the following terms before participating in the go-karting activity:

WAIVER & RELEASE

ALL PARTICIPANTS MUST READ CAREFULLY AND SIGN AT BOTTOM OF PAGE.

In consideration of Velocity Raceway Ltd. permitting me access to their premises and use of their equipment and facilities, I hereby acknowledge and agree as follows:

ASSUMPTION OF RISK I understand that this activity is dangerous and may become more hazardous or dangerous during the time I am on the premises of Velocity Raceway. … I am aware that the machines may travel at speeds of up to 80 kilometres per hour and that equipment failures or carelessness of other drivers are always possible. I understand the risk of injury from operating a go kart is significant, including the potential for serious bodily injury, paralysis and death; that I am aware of all the risks and hazards inherent with my operating a go kart at Velocity Raceway. It is entirely my choice to take part in this activity, and I therefore, accept and assume responsibility for any possible risk involved in my participating in this sport.

RELEASE I hereby acknowledge and forever discharge Velocity Raceway Ltd., its owners, employees, agents and affiliates, as well as their successors and assigns, from any and all claims, liabilities, demands, and/or actions for damages (including legal costs) arising in any way from my participation in go kart racing on their property. This release includes, inter alia, damages for personal injury, property damage and wrongful death and shall be binding on my heirs, successors and assigns.

All Velocity customers were required to first pass through a kiosk and execute an electronic contract with the release before being allowed to participate in go-karting:

[5] All persons wishing to participate in Velocity's go kart races had to proceed through a kiosk system and execute the electronic waiver and release. Within this kiosk system, customers or participants:

provide personal information, complete a membership application and pay for such membership; are photographed; go through a series of electronic pages on a computer screen and have to click “next” to move from one electronic page to the next; and agree to the terms of a waiver and release [e Waiver]. All participants are obligated to click the “I agree” icon or selection on the electronic waiver and release form presented to them on a screen before they are permitted to participate in a race.

On the day in issue, Quilichini had been processed through the kiosk system before engaging in go-karting. He had provided personal information, paid the fee, was photographed and had clicked the “I agree” icon.

Velocity argued that Quilichini's electronic signature on the agreement was binding and that the e-Waiver provided a complete and absolute defence to his claim. Quilichini argued that a trial was necessary as to whether he actually executed the e-Waiver because the screen print of the e-Waiver form had signature spaces for both the participant and a staff member. He also argued that the exclusion of liability clause should be narrowly construed to be inapplicable because it did not expressly release Velocity from its own negligence.

HELD: For the Defendant; claim summarily dismissed.

The Court held that the electronic contract formed by Quilichini having processed through Velocity's kiosk system was binding, including with respect to the liability exclusion clause.

The Court relied on Saskatchewan legislation, The Electronic Information and Documents Act, 2000, S.S. 2000, c. E-7.22, s. 18, which provided as follows: Formation and operation of contracts

18(1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be...