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Digest of the Week | Application to Strike General Principles

Digest of the Week | Application to Strike General Principles

The New Brunswick Court of Queen's Bench considers whether a motion to strike a claim can be based on a signed waiver of liability.

Dewitt (Litigation guardian of) v. Strang

2016 NBQB 28, 2016 NBBR 28, 2016 CarswellNB 104, 2016 CarswellNB 103, George S. Rideout J. (N.B. Q.B.) [New Brunswick]

New Brunswick Court of Queen's Bench

Pleadings -- Application to strike -- General principles Plaintiff was 15-year-old male who attended motocross event -- Defendants were all involved with motocross event in some way -- Plaintiff and his father had to sign waiver before plaintiff was allowed to participate in motocross event -- Plaintiff was involved in accident and was rendered paraplegic -- Plaintiff contended waiver was not enforceable against him since he was minor -- Plaintiff commenced action against defendants for damages for negligence -- Defendants raised defence of waiver -- Plaintiff brought motion for order striking out waiver defence as disclosing no reasonable defence -- Motion dismissed -- Trial judge would be in better position to determine waiver issue following rigours of trial -- Issue of whether clearly worded waiver signed by parent and child was effective against child had not yet been resolved by courts -- Parties were not able to find any authorities squarely addressing issue in present case -- Substantive question of law in present motion had importance beyond parties -- Even if waiver defence was struck, waiver could still be introduced into evidence and be factor in determination of liability -- Words in waiver could have impact on issue of liability or 6 The Canadian Abridgment eDigests - Practice volenti non fit injuria -- This went against requirement in R. 23.01(1)(a) of Rules of Court (N.B.) that determination of question of law might dispose of action, shorten trial, or save costs -- Matter was also not plain and obvious under R. 23.01(1)(b) -- Pleading that was reasonable under R. 23.01 could not be "scandalous, frivolous or vexatious" for purposes of R. 27.09(b).
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