Diamond & Diamond™

Vancouver Head Office

1727 West Broadway, Suite 400

Surrey Consultation Office

7404 King George Blvd. Suite 200

Burnaby Consultation Oflice

4720 Kingsway Suite 2600

Kelowna Consultation Office

1631 Dickson Avenue Suite 1100

Richmond Consultation Office

5811 Cooney Road Suite 305 South Tower


Toronto Head Office

255 Consumers Road, 5th Floor

Thunder Bay Consultation Office

278 Algoma Street South

Windsor Main Office

13158 Tecumseh Rd. E. Unit 38

Barrie Main Office

299 Lakeshore Drive. Suite 200

Mississauga Consultation Office

2233 Argentia Rd. Suite 302, East Tower

Ottawa Main Office

1081 Carling Avenue, Suite 704

Peterborough Consultation Office

459 George Street North

Orangeville Consultation Office

PO Box 157

Toronto Main Office

5075 Yonge Street. Suite 805


Injured at the Gym – Can You Sue?

According to a recent poll conducted for the GoodLife Fitness website, improvements to personal health and wellness were at the top of the 2018 New Year’s resolutions list of more than one in three Canadians. Due in part to competition spurred by the proliferation of lower cost clubs such as the giant American chain Planet Fitness , for many in British Columbia and elsewhere that resolution will translate into a new health club membership and the determination to use it. As the number of clubs in Canada grows, weight training, cardio, Pilates and cross fit programs have become readily available.

With so many Canadians working to get fit, some will inevitably fail to heed cautions about gradually working into a routine and instead plunge headlong into a strenuous workout. The result is often an injury, frequently from inadequate warm up or stretching or improper use of equipment.

Thankfully, most gym maladies are minor and will heal after a few days of rest. However, more serious injuries can occur, particularly as one’s routine evolves and units of weight and resistance increase. For “gym rats” at this level, adequate instruction and proper supervision become critical.

Your Ability to Sue

Some accidents and injuries occur in the most conscientious of facilities. But what if you are seriously hurt solely because of an employee’s incorrect advice or careless supervision? Can you successfully sue the employee? Possibly, but he or she probably doesn’t have insurance or much in the way of assets you can reach.

So what about suing the club itself? Let’s assume nobody from club management was around when the instructor committed his/her negligent act. Canadian law generally recognizes the concept of “vicarious liability”. This is a legal precept which makes an employer − which often does have insurance or assets − “vicariously” responsible for harm caused by his employee. So, in theory, yes, the club may be held responsible.

Releases and Assumption of the Risk

There are very few legal doctrines that are not subject to exceptions, and vicarious liability is no exception. Two are most likely to be raised as defenses to a lawsuit brought after the accident described above:

Remember the paperwork you received and signed when you joined the club in January? You probably paid the most attention to the club’s fees and renewal policy. However, it’s likely that somewhere in what you signed was a preprinted waiver, by which you probably agreed to release the club, its owners, and its employees from responsibility for injuries. If the release’s wording is broad enough, this can even include cases such as our example above in which one of the parties released was negligent.

Assumption of Risk
As the term implies, “assumption of the risk” means a willing agreement to take all risks of injury (and, possibly even death) associated with gym activities. It’s likely that a contract, especially one used by a large chain of clubs, will contain the assumption of risk language.

Are These Clauses Legally Valid?

As a general matter, release and assumption of risk clauses are valid in Canada. Again, however, there are some important exceptions:

    • A purported release of any party for the consequences of intentional misconduct or gross negligence. “Gross negligence” generally refers to an exceptional departure from the standard of conduct one would expect a reasonable person to exhibit in the circumstances.
    • Canadian contract law follows the principle that ambiguous provisions are to be construed against the party who drafted them. If the release or assumption language is ambiguous, its effect may be limited or even ignored.
    • The release was hidden in the contract documents such that the member could not reasonably be expected to see it. This is why most club contracts require the member to sign the page containing the release language.
    • The member lacked legal capacity to contract. Under Part 3 of the British Columbia Infants Act, subject to some exceptions, a contract with a person under the age of 19 is not enforceable. A person 19 or older who suffered from a mental disability when he or she signed may also be able to avoid its enforcement.

British Columbia Personal Injury Lawyers

If you’ve been injured at the gym by the carelessness of an employee or even another patron and want to know if you have a legal claim, you need to consult an experienced lawyer who can thoroughly analyze the effect of your club’s contract and the circumstances of your accident. The team of lawyers at Diamond and Diamond is ready to help. Call our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We offer free consultations and case evaluations. Our team of personal injury lawyers represents clients throughout British Columbia.


Filter by Category