



COURT
    OF APPEAL FOR ONTARIO

CITATION: Hosseinkhani v. QK Fitness Inc.,
    2019 ONCA 718

DATE: 20190912

DOCKET: C66502

Hoy A.C.J.O., Nordheimer and
    Jamal JJ.A.

BETWEEN

Fatemeh
    Hosseinkhani, Manuchehr Rasouli, Mohamed Reza Rasouli and Behnoush Rasouli

Plaintiffs (Appellants)

and

QK
    Fitness Inc., 2083053 Ontario Ltd. and Helen Doe

Defendants (Respondents)

George Pappas and Matthew Wasserman,
    for the appellants

C. Michael J. Kealy, for the respondents

Heard and released orally:  September
    10, 2019

On appeal from the order of Justice Robert
    Charney of the Superior Court of Justice, dated January 3, 2019 with reasons
    reported at 2019 ONSC 70

REASONS FOR DECISION

[1]

The appellants appeal from the summary judgment
    granted by the motion judge that dismissed their claims.

[2]

It is not, in our view, necessary to go into all
    of the details regarding the background to this matter in order to resolve this
    appeal. The action arises out of a claim for personal injuries suffered by Ms. Hosseinkhani
    while she was participating in a fitness class at the premises of QK Fitness.

[3]

During the course of the fitness class, Ms.
    Hosseinkhani stepped on a round dumbbell that was part of the equipment used in
    the class. She fell and was injured.  Ms. Hosseinkhani then sued the
    respondents for negligence.

[4]

The motion judge reviewed the matter in detailed
    reasons.  He concluded that the respondents could not rely on an exclusion of
    liability clause that was contained in the membership agreement.  However, the
    motion judge did find, on the factual record before him, that the appellants
    could not establish that the respondents were negligent in any way. In
    particular, the motion judge found that there was no evidence that the round
    dumbbell posed an unusual hazard and that neither the dumbbells nor the exercises
    themselves were inherently hazardous. The motion judge also found that the fact
    that a round dumbbell might roll was an obvious risk. Indeed, Ms. Hosseinkhani
    admitted that no one had to explain to her that round dumbbells placed on their
    side might roll.  Consequently, the motion judge granted summary judgment
    dismissing the appellants claims. Contrary to the appellants submissions, the
    motion judge considered whether a duty to warn was required in the particular
    factual context and found that it was not.

[5]

We are not persuaded that there is any basis to
    interfere with the motion judges findings of fact and mixed fact and law.

[6]

The appeal is dismissed.  The respondents are
    entitled to their costs of the appeal fixed in the amount of $
5,000
inclusive of disbursements and HST.


Alexandra Hoy A.C.J.O.
I.V.B. Nordheimer J.A.

M. Jamal J.A.


