Wong v. Lok's Martial Arts Centre Inc.

2009 BCSC 1385 Wong v. Lok's Martial Arts Centre Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wong v. Lok's Martial Arts Centre Inc., 2009 BCSC 1385 Date: 20091008 Docket: S102375 Registry: New Westminster Between: Victor Wong, an infant by his Litigation Guardian, Yen To, and the said Yen To Plaintiffs And Lok's Martial Arts Centre Inc. Michael Lok and Ramin Asgare Nik Defendants Before: The Honourable Mr. Justice Willcock Reasons for Judgment Counsel for the Plaintiffs: B.T. Lepin Counsel for the Defendants: M.S. Frost Place and Date of Hearing: New Westminster, B.C. September 30, 2009 Place and Date of Judgment: New Westminster, B.C. October 8, 2009

INTRODUCTION [1] This is an application for an order pursuant to Rule 18A dismissing the plaintiff's claim against the defendants, Lok's Martial Arts Centre Inc. and Michael Lok . [2] This action was commenced by writ of summons issued November 21, 2006. The infant plaintiff, Victor Wong claims to have suffered injury as a result of a battery committed upon him by the defendant Nik, when he was violently thrown to the ground in the course of a sparring match at a Hapkido school owned and operated by the defendant Lok's Martial Arts Centre Inc. The defendant Michael Lok is the principal of Lok's Martial Arts Centre Inc. [3] The claim against the defendant applicants is in negligence. It is alleged that these defendants were negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches. [4] These defendants deny they were negligent. Their application to dismiss the claim is founded upon a document signed by the plaintiff's mother, his current litigation guardian, Yen To, at the time Victor Wong began participating in Hapkido on November 26, 2001. That document reads, in part, as follows:

CONDITIONS OF MEMBERSHIP AND RELEASE It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student's sole risk. LOK'S HAPKIDO SCHOOL and its affiliated studio's (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio's) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok's Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!

BACKGROUND [5] The infant plaintiff Victor Wong was born on June 3, 1989. When he was 12 years old on November 26, 2001, he commenced training in the Korean martial art of Hapkido at Lok's Martial Arts Centre Inc. It was at that time that his mother signed the membership form containing the words cited above. [6] The defendant Michael Lok is a Hapkido master. He obtained his black belt in 1985. He obtained his fifth degree black belt in 1997. With that designation, he was qualified to instruct Hapkido. [7] Yen To attended one or two sessions at Lok's Martial Arts Centre Inc. before deciding to enrol her three sons, one of whom was the plaintiff, Victor. Mr. Lok says that he made it clear to Yen To that it was essential that she sign the Conditions of Membership and Release before her sons could be enrolled. [8] Mr. Lok says "Despite the precautions taken in training and tuition, it is my view self-evident that martial arts involve some degree of personal risk, even though I do everything to minimize that risk." [9] Victor participated in Hapkido approximately once a week after enrolling. During that time, Mr. Lok says that there was a notice posted in a visible location at the door to the premises describing "sparring/weapons/visitors and general classes rules." One of these rules read as follows "Each student spars at his/her own risk (you may request not to spar)." The notice

also contained the following warning: It is impossible to check the past history of each student for alcohol or substance abuse or criminal record. We are not responsible for any negligence caused directly or indirectly by our school, instructors or by your student classmates. [10] The notice further provided: All visitors, employees, instructors and parents are responsible for any injuries within Lok's Hapkido School. We are not responsible for any negligence caused directly or indirectly by our school, instructors, visitors or by your student classmates. [11] In large letters at the bottom of the notice, it provided as follows: YOU ARE RESPONSIBLE FOR YOUR INJURIES ANY TIME WITHIN LOK'S HAPKIDO SCHOOL. [12] Ms. To says she signed the Conditions of Membership and Release form but did not read it carefully or fully understand it. She knew if she did not sign it her sons would not be allowed to enrol in Hapkido classes. She says she had no intention of waiving her sons' rights to sue Mr. Lok or Lok's Martial Arts Centre Inc. for injuries resulting from their negligence, failure to properly supervise or lack of good judgment in selecting sparring partners. Ms. To says she did not receive or read the sparring/weapons/visitors and general classes rule and claims to be unfamiliar with the document. [13] Ms. To does not claim to have difficulty understanding English. Her affidavit is

sworn in English without the assistance of an interpreter or translator. [14] The infant plaintiff, Victor Wong, has sworn an affidavit in which he deposes he had not seen the sparring/weapons/visitors and general classes rule before his injury and the form bears a Lok's Martial Centre logo that is different from the logo with which he was familiar as a student. He says he did not sign a waiver of his legal rights and did not authorize his mother to waive any rights on his behalf. [15] In response to the plaintiffs' affidavits, Mr. Lok deposes that Mrs. To's English is excellent and examinations for discovery were conducted in English without translation. [16] In an excerpt from her examination for discovery in evidence on the motion, Ms. To acknowledged she signed the release. She read the portion of the release that said "You are responsible for all injuries." She does not recall discussing the release with Mr. Lok. [17] Ms. To acknowledged she understood that Hapkido was a martial art, when she signed the release, and knew it would involve some falling to the ground.

ISSUE [18] The Parties agree the issue before me is suitable for determination pursuant to Rule 18A. There are two issues on the defendants' application for summary dismissal of the plaintiff's claim: 1. whether a child's parent can effectively execute a pre-tort release on behalf of a minor; and 2. if so, whether the release executed in this case is sufficiently broad to require that the plaintiff's claim be dismissed.

APPLICABLE LAW Defendant's Authority on the Efficacy of the Release [19] On the efficacy of the release, the defendant relies upon Carol v. Silver Star Mountain Resorts (1988), 33 B.C.L.R. (2d) 160, Ocsko v. Cypress Bowl Recreations (1992), 95 D.L.R. (4th) 701; 1992 74 B.C.L.R. (2d) 159, Clarke v. Action Driving School, (1996) Can Lii 2649 B.C.S.C., Mayer v. Big White Ski Resort Limited, 1998 Can Lii 5114 BCCA, and Goodspeed v. Tyex Mountain Lake Resort, 2005 BCSC 1577. These cases stand as authority for the proposition that the Courts will give effect to a clearly worded release executed prior to enrolment in a recreational activity. There is no general requirement that a party tendering the document for signature ensure that the party signing the document reads and understands its terms unless a reasonable person in their circumstances should have known that the party signing was not consenting to those terms. The Court will give a plain and ordinary meaning to the words of the release but where there is ambiguity resolve it in favour of the party to whom the contract is proffered. Defendant's Authority on Parental Waiver [20] The Defendant says that the "plenitude" of parental powers includes the power to enter into a pre-tort contract on behalf of an infant, waiving the infant's right to bring a claim in negligence. The Defendant is not able to provide direct authority for

this proposition. The Defendant relies, rather, upon the following cases, broadly defining the powers of a guardian and cases where the Courts have expressed support for the proposition that a parent may waive a child's claim in battery arising from medical treatment. [21] In Wong and Yung, 2000 BCSC 1536, the Court heard an application for an order pursuant to the Family Relations Act changing guardianship to a third party at the request of parents. In the course of considering the application, Stromberg-Stein J. commented on the nature of guardianship generally. A number of cases, including Anson v. Anson (1987), 10 B.C.L.R. (2d) 357, and Young v. Young (1990), 29 R.F.L. (3d) 113 (B.C.C.A.), were cited as authority for the proposition that a guardian has and obtains "the plenitude of parental power." This begs the question, however, which is whether that "full bundle of rights" includes the right to waive a claim in negligence on behalf of a minor. [22] In MacDonald v. British Columbia, 2003 BCCA 428, the Court of Appeal, considering the appointment of a committee of an estate of a minor under the Patients Property Act, held that once the plaintiff reached the age of majority she became a person who was, because of mental infirmity arising from disease, incapable of managing his or her affairs. The clear implication of the judgment is that while the plaintiff was a minor her

parents were capable of managing her affairs on her behalf, despite her incapacity. This case, again, is not of great assistance in answering the question: whether the plaintiff's parents would have been able to execute a release of claims on her behalf or whether there is some restriction on the plenitude of their powers. [23] In Toews v. Weisner, 2001 BCSC 15, the infant plaintiff brought an action in battery against a community health nurse, arguing that she had not consented to a vaccination. The community health nurse, in her defence, relied upon a form of release and consent for signature by the patient's parent or legal guardian and argued that that consent form would constitute a defence to a claim in battery. The Court held: Battery is the intentional infliction of unlawful force on another person. Consent is a defence to battery and consent may be either express or implied. The defendant carries the onus of proving that there was consent. In this case, because of the plaintiff's age, it was common ground that consent had to be obtained from a parent or legal guardian rather than from the child herself.[emphasis added] [24] The Court concluded that there was no evidence of parental consent to the vaccination. The issue therefore became moot. It is implicit in the judgment, however, that the parent would have been capable of consenting to physical contact with the child

and therefore, on the child's behalf, waiving a claim in battery. Plaintiff's Authority on Parental Waiver [25] The Plaintiff says the principle that a parent cannot waive an infant's right to bring an action in tort is well settled and relies upon statements to that effect in the literature. [26] In Sports and the Law in Canada (3rd ed. Butterworths), John Barnes writes as follows: Most contracts made by minors (or "infants") are only valid if they are for the minor's benefit. Since a release or exclusion of rights is to the minor's disadvantage such contracts are not enforceable; even when co-signed by the parent or guardian. An effective waiver must, therefore, be exhaustive in its terms and carefully communicated to adult participants.[emphasis added] [27] In support of the proposition that exclusions of rights signed on behalf of a minor are not enforceable Barnes relies upon Butterfield v. Sibbitt and Nipising Electric Supply Company, [1950] O.R. 504, [1954] D.L.R. 302; Swanson Estate v. Hanneson, [1972] 3 W.W.R. 241, 26 D.L.R. (3d) 201, aff'd [1973] 6 W.W.R. 179, Crawford v. Ferris, [1953] O.W.N. 713; and M. v. Sinclair (1980), 15 C.C.L.T. 57. [28] Unfortunately the cases cited are not strong authority for the proposition for which Barnes says they stand: [29] In Butterfield, the infant plaintiff retained a solicitor after his injury. He then entered into a settlement

with a representative of the defendants. At the time of the execution of the release he was a minor. When his condition deteriorated significantly after execution of the release, he retained new counsel who applied to set aside the release on the ground that it had been executed by a minor. There was an issue whether the contract was void or voidable and whether return of the money paid in settlement was a prerequisite to voiding the release. There was also a question whether the plaintiff had failed to repudiate the settlement once he became an adult. There is no discussion in the case of the ability of a parent to sign a release for a minor. [30] In Swanson Estate, an action was brought by the estate of a 15-year old who died in an accident at a motor speedway. The teenager had been participating in the activity at the speedway and, in order to do so, had signed a release. The Court held that as he was an infant his position was governed under the principle expressed in Butterfield. The Court further held that the release was ineffective in relation to the claim brought by both an adult injured in the accident and the infant plaintiff. The comments with respect to Swanson's infancy are therefore dicta. In any event, they are not helpful because the case is yet another example of a defendant seeking to rely upon a release executed by a minor. [31] In Crawford, the defendant

sought the dismissal of the claim on the basis that the infant plaintiff had signed a register containing a release before going horseback riding. The Plaintiff denied signing the register. The Court found there was no negligence. There is no express discussion of the waiver defence other than the following comment by Barlow J. at para 12: The plaintiff who was only 17 years old at the time of the accident is probably not bound by the heading with respect to risk found on the register...and I am not basing my decision on this. [32] Like the Swanson case, M. v.Sinclair is decided on the terms of the release. There were pre-tort waivers signed by both the infant plaintiff and his father. Lerner J. held that the infant was incapable of signing a waiver on his own behalf and that the waiver signed by his father did not clearly bar claims in negligence. In doing so, he noted, at p. 64: It is hardly necessary to state that the infant plaintiff Michael Miller and his sister were clearly not bound by their undertakings to waive any rights to claim because they were under the age of accountability. But, apart from that disability and assuming that Mr. Miller, on his own behalf, could waive any right to claim and if the tenuous argument was successfully made that he could bind his children, the waiver would still fall on other grounds. [33] In Waivers and Other Agreements (Centre for

Sports and Law Edmonton, Alberta 1993) Corbett and Findlay write at p 19: The person signing the waiver must have the authority to sign a legal contract: in most provinces this means being 18 years of age or older. Children cannot sign contracts, nor can they sign waivers. Parents or guardians cannot sign a contract or waiver for a child. This means that waivers, in the strict legal sense, are useless in situations involving children or youth. [34] No authority is cited for this proposition. [35] The Plaintiff also relies upon Stevens and Howitt, [1969] 1 O.R. 761 (Ont. H.C.). In this case the Court considered an application to set aside a release executed by an adult on behalf of a minor. The release was executed following a motor vehicle accident as part of the settlement of a claim. The Court held that the agreement was so contrary to the established procedure for a settlement of infant claims that it could not be upheld as a binding agreement. [36] There is ample judicial support for this rule in relation to the settlement of claims for damages after the fact (see, for example: Carey v. Freeman et al., [1938] O.R. 713 and Carter et at. v. Junkin et al., 47 O.R. (2d) 427) but these cases are of limited assistance in addressing whether an effective pre-tort release may be executed by an adult on behalf of a minor. Canadian Jurisprudence Generally [37] The parties were unable

to find any directly applicable Canadian cases. In the cases cited above the issue is not clearly addressed. In its recent review of the law, Waivers Of Liability For Sporting And Recreational Injuries (Report # 120 January 2009 ISBN 978-0-7711-1551-6 ), the Law Reform Commission of Manitoba has described the validity of parental waivers as "doubtful": Waivers are commonly obtained from minors and their parents. They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful. The general rule is that a contract with a minor for necessary goods and services is enforceable by and against the minor. Contracts for services which are not necessaries are enforceable by the minor but not against the minor. Waiver agreements and the underlying contract for sporting or recreational services are unlikely to be construed as necessary [M. v. Sinclair]. Providers may, however, attempt to foreclose indirectly the action of a child by means of an indemnity agreement signed by the parent. An indemnity agreement states that the parent will indemnify the provider for any legal costs or payments made pursuant to a settlement or trial judgment in favour of the child. It seeks to shift the loss from the provider to the parent thereby deterring a parent from instigating an action on behalf of the child. There is authority declaring such agreements

to be against public policy [Stevens v. Howitt] and, therefore, void but the use of such agreements continues and the matter has not been tested recently. [38] The sole case referred to in relation to the validity of waivers, M. v. Sinclair is the judgment of Lerner J., cited above, in which an argument in support of the parental right to waive an infant's claim is described as "tenuous". [39] In 1994, the Law Reform Commission of British Columbia published Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities (October 1994). The Commission summarized its view of the law on minors and waivers as follows: The widespread practice of taking signed waivers in connection with minors' participation in various sports activities raises a number of questions. Is it to act as a deterrent, and so aid in controlling the cost of insurance? Since they are unenforceable under the Infant Act, they could do so only by deceiving parents into thinking they are barred from bringing an action on behalf of a negligently injured child. Minors should not be prejudiced by their own or their parents' naiveté. This is the historic policy of the law, and it is still sound. Modern legislation in the Infant Act provides for minors to be granted capacity to enter into an enforceable agreement where it is clearly in their interests. The traditional protection should remain

available where it is not. If the real purpose is to obtain evidence of the acceptance of inherent risk by minors and their legal guardians, this can be done without the stratagem of an unenforceable waiver. It can be accomplished by taking a signed acknowledgment by the minor and the parents that they recognize the existence of inherent risks in the activity and agree to assume them. Such an acknowledgment is unobjectionable, as long as it contains no waiver or release language and no expanded, self-serving definition of inherent risk. Expanding on the common law notion of inherent risk in an acknowledgment-of-risk form for minors would impose on them the burden of others' wrongful acts and omissions. Any terms in an acknowledgment form which do so should have no legal effect. The practice of extracting agreements from parents to indemnify operators in respect of legal actions on behalf of their children also contravenes the public policy of protecting minors' interests. They are clearly intended to discourage a parent from pursuing a child's rights. If there is doubt about the unenforceability of such indemnities, it should be removed. Arguments for giving binding effect to waivers by minors or their parents based on the fact that the volenti defence can be raised against a minor are unconvincing. That defence usually succeeds today only where the plaintiff's conduct is

imbued with illegality or is unusually foolhardy. Treating a minor who engages in obviously dangerous conduct as being conscious of the natural consequences of his or her acts is not analogous to holding the minor to the terms of a binding legal document, the contents of which may be deceptive even to adults. The Legislative Framework [40] The B.C. Law Reform Commission has expressed the view that signed waivers in connection with minors' participation in sports activities are unenforceable under the Infants Act [RSBC 1996] C.

223. That is so only if the Act codifies the law in relation to contracts entered into by or on behalf of infants in British Columbia. [41] Part 3 of the Act addresses contracts entered into by infants. Part 4 addresses the power of guardians to enter into contracts that will be binding upon infants. Contracts Entered into by Infants [42] Part 3 provides: When infants' contract enforceable 19 (1) Subject to this Part, a contract made by a person who was an infant at the time the contract was made is unenforceable against him or her unless it is (a) a contract specified under another enactment to be enforceable against an infant, (b) affirmed by the infant on his or her reaching the age of majority, (c) performed or partially performed by the infant within one year after his or her attaining the age of majority, or (d) not repudiated by the infant within one year after his or her reaching the age of majority. (2) A contract that is unenforceable against an infant under subsection (1) is enforceable by an infant against an adult party to the contract to the same extent as if the infant were an adult at the time the contract was made. [43] There is a procedure for seeking relief from the Courts in the event it is thought to be inequitable to permit a minor to avoid the consequences of a contract entered into on his or her own behalf. The Act does not appear to give the Court the

authority to order specific performance of the contract. Compensation and restitution are the only available remedies: Application for relief 20 (1) If a contract is unenforceable against an infant under section 19 (1), (a) the infant, or (b) if the infant has repudiated or is in breach of the contract, another party to the contract, may apply to a court of competent jurisdiction for relief against (c) a party to the contract, or (d) subject to subsection (5), any person who has acquired a right to or interest in property transferred under the contract. (2) In an application under subsection (1), the Court may order that (a) compensation be paid by or to any of the parties to the contract, (b) there be restitution of property, (c) the parties to the application be discharged from further obligations under the contract or with respect to property transferred under the contract, or (d) compensation be paid to a person, not a party to the contract, who has been ordered to make restitution of property. (3) Before making an order under subsection (2), the Court must consider (a) the circumstances surrounding the making of the contract, (b) whether the infant induced any person to enter into the contract by misrepresenting his or her age, (c) the subject matter and nature of the contract, (d) in the case of a contract relating to property, the nature and value of the property, (e)

the age and means of the infant, (f) whether any party to the application has so changed the party's position that it would be unfair or inequitable to make an order against the party, and (g) any other relevant circumstances. [44] A minor, on the other hand, may seek an order from the Public Trustee or the Court ratifying the contract before or after its execution. Application to Public Guardian and Trustee 22 (1) The Public Guardian and Trustee may, on an application made on behalf of an infant, make an order granting contractual capacity or ratifying a specific contract that the infant proposes to enter into or has entered into, if the Public Guardian and Trustee considers that the making of such an order would be in the interest of the infant. (2) Before making an order under subsection (1), the Public Guardian and Trustee must consider (a) the nature, subject matter and terms of the contract, (b) the requirements of the infant, having regard to his or her particular circumstances, (c) the age and means of the infant, and (d) the wishes of the infant's parent or guardian. (3) Section 19 (1) does not apply to a contract made by an infant in accordance with an order made under subsection (1). [45] Section 25 of the Act preserves certain legal defences in claims arising out of or connected with voidable contracts entered into by a minor but cannot be said to lend legitimacy to

a defence that does not arise by rule of law but is found in the voidable contract itself: Liability in tort 25 Nothing in this Act affects the rule of law by which a person is not liable in tort, if the action in tort (a) is connected with, (b) arises out of, (c) was contemplated by, or (d) is an indirect means of enforcing a contract that is unenforceable against the person under section 19 (1). [46] By s. 29, marriage settlements entered into by infants are excepted from the rule that infants' contracts are voidable. Contracts Entered into by Parents [47] Section 40 regulates the Power of guardians to enter into agreements. Such agreements, subject only to certain specific exceptions, require either the approval of the Public Trustee or the Court: Power of guardian to enter into agreements 40 (1) In subsections (7) and (11), "order" means an order of the Provincial Court if the Provincial Court has jurisdiction over the proceeding for recovery of the unliquidated damages. (1.1) A guardian may make a binding agreement for an infant, (a) if the agreement involves a consideration not greater than $10 000, with the consent of the Public Guardian and Trustee, or (b) in a case other than one referred to in paragraph (a), with the approval of the Court by order made on the petition of a party to the agreement. (2) Subsection (1.1) does not apply to an agreement to settle a claim by

an infant for unliquidated damages. (3) An agreement to indemnify a person as a result of the person making an agreement with another person for an infant is void unless consented to or approved under subsection (1.1). (4) If an agreement to settle a claim by an infant for unliquidated damages is proposed before a proceeding for recovery of the unliquidated damages is commenced and the proposed amount is not greater than $50 000, exclusive of interest and costs, (a) a guardian, with the consent of the Public Guardian and Trustee, or (b) the Public Guardian and Trustee may make a binding agreement for the settlement of the claim. (5) If an agreement to settle a claim by an infant for unliquidated damages is proposed before a proceeding for recovery of the unliquidated damages is commenced and the proposed amount is greater than $50 000, exclusive of interest and costs, (a) a guardian of the infant, or (b) the Public Guardian and Trustee, on receipt of a court order granting approval, may make a binding agreement for the settlement of the claim. (6) An application for approval of the Court under subsection (5) must be made by application of a party to the proposed agreement. (7) If an agreement to settle a claim by an infant for unliquidated damages is proposed after a proceeding for recovery of the unliquidated damages is commenced and the proposed amount is not greater than $50

000, exclusive of interest and costs, a litigation guardian, with the consent of the Public Guardian and Trustee, may consent to an order awarding damages in favour of the infant. (8) If an agreement to settle a claim by an infant for unliquidated damages is proposed after a proceeding for recovery of the unliquidated damages is commenced and the proposed amount is greater than $50 000, exclusive of interest and costs, a litigation guardian, on receipt of a court order granting approval, may consent to an order awarding damages in favour of the infant. (9) An application for approval of the Court under subsection (8) must be made (a) to the Court in which the proceeding has been commenced, and (b) by application of a party to the proceeding. (10) Before a party, other than the Public Guardian and Trustee, applies for approval of the Court under subsection (5) or (8), the party must obtain written comments from the Public Guardian and Trustee with respect to the proposed agreement to settle and must provide the written comments to the Court. (11) After a proceeding described in subsection (7) or (8) has been commenced, the litigation guardian, with the consent of the Public Guardian and Trustee, may consent to an order dismissing all or part of the infant's claim. (12) If the Public Guardian and Trustee makes an agreement or consents to an agreement under this section, the

agreement or consent must be signified by the seal of the Public Guardian and Trustee. [emphasis added] [48] Section 41 describes exceptions to this rule: Application 41 (1) Section 40 does not apply to any settlement or contract referred to in section 29, [marriage settlements] or to a lease, surrender or renewal of a lease referred to in sections 32 to 39. (2) Section 19 [providing that infants' contracts are unenforceable] does not apply to an agreement entered into in accordance with section 40. [49] If this is a complete code, parents and guardians cannot enter into binding contracts on behalf of infants except in strict accordance with the provisions of the Act. [50] Does the description of circumstances in which a guardian may enter onto a binding agreement on behalf of a minor imply that the guardian otherwise has no such power? Section 40 (1.1) is broadly worded. Its plain reading suggests a guardian cannot enter into any binding agreement other than the specific excepted contracts unless the contract is approved by the Public Trustee. [51] The Act has some of the hallmarks of an attempt to codify the law. It expressly provides for marriage settlements, leases, settlement of claims for liquidated and unliquidated damages (before and after proceedings) and contracts made by infants themselves. The common law with respect to contracts by minors for necessities appears to have been considered and subsumed into the provisions of s.

20. The Act also provides for contracts expressly addressed in other statutes. [52] There is at least one apparent gap in the legislation. The Act suggests that a parent may consent to medical care for an infant but provides no means to do so. S. 17 expressly provides for cases where an infant has the capacity to consent to medical care: Consent of infant to medical treatment 17 (2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant's person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant's parent or guardian. (3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care (a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and (b) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests. [53] The description of circumstances where "it is not necessary to obtain a consent to the health care from the infant's parent or guardian"

implies that consent can and must otherwise be obtained from an infant's parents or guardians. The Act provides no means for parents or guardians to effectively consent without the approval of the Public Trustee. It is unreasonable to suggest the legislature intended to require parents to seek the approval of the Public Trustee to routine medical care. In consent cases, at least, the legislature appears to have left some room for parental consent without state involvement. Giving consent in the context of medical care however is not equivalent to waiving a child's right to legal recourse for negligence, despite the fact that consent is a defence to a claim in battery.

DISPOSITION [54] On a summary trial application I am unable to resolve the conflict in the evidence with respect to whether the notice bringing the limitation of liability to customers' attention was posted and ought to have been seen by the Plaintiff's guardian or the Plaintiff prior to the sparring match in which he suffered his injury. I am not able to address any claim that the infant plaintiff or his mother on his behalf voluntarily assumed the risk of injury in this case. I can, however, address the question whether the release signed on enrolment is an effective bar to the infant plaintiff's claim. [55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school. [56] While employees are not expressly released by the form signed by Ms. To, Mr. Lok himself could rely upon the release as a bar to the Plaintiff's claim if the contract is not void. Here, as in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299 the release must have been intended to protect the employees who will discharge the contractual obligations of Lok's Hopkido School Inc. The allegations made against Mr. Lok in the pleadings are that he failed to perform the very services the Plaintiff

expected from the Hopkido School. In fact Mr. Lok and the school are difficult to distinguish. On the material they appear to be one and the same. The benefit of the clause should be extended to Mr. Lok. [57] The wording of the release is broad. It was submitted that the initial words limit the scope of the release. The release begins with the words: "It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken at the student's sole risk." [58] The Plaintiff suggests the sparring match that resulted in injury cannot be described as "exercise", "treatment" or "use of facilities". While I am of the view that the sparring match might be considered to be an "exercise" that question need not be answered in the Plaintiff's favour. The sentence cited is in the nature of a recital. It is followed by the statement "Lok's Hapkido School ... shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of active or passive negligence on the part of the Hapkido School". A release from "any causes of action whatsoever" has usually been considered to be broad enough to constitute a general release of claims in negligence. The wording of the release is broad enough that if it is effective to bind the infant plaintiff, the claim should be dismissed against the

applicants. [59] I have considered the defendant's submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist. (1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law. (Malamud and Karyan "Contractual Waivers for Minors In Sports-Related Activities" (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in "Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools" (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, "The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children's Tort Liability Claims" (2001-2002) 36 U.S.F. L. Rev. 535) [60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants' claims after a cause of action has arisen applies with some force to pre-tort releases as well. [61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant's right to bring an action in damages in tort. The Defendant's application is therefore dismissed. __ "Willcock J."____ The Honourable Mr. Justice Willcock