The Court of Appeal recently released their much anticipated decision dealing with the impact of waivers. The Court heard two cases together that dealt with patrons who were injured while skiing at resorts. In both instances, the patrons executed the ski resorts’ waivers of liability as a condition of purchasing their tickets but nevertheless sued for personal injuries. The issue was what impact the Consumer Protection Act, 2002 and the Occupiers’ Liability Act had on these waivers.
The Court of Appeal noted that while the Occupiers Liability Act established a primary duty of care that occupiers owe to persons entering their premises, there was an exception. Under this exception, the duty of care exempted risks willingly assumed provided that the occupier did not create a danger with the deliberate intent of doing harm or damage and did not act with a reckless disregard of the presence of the individual. The Court of Appeal recognized that part of the rationale for including this exception was to encourage private landowners to voluntarily make their property available for recreational activities by limiting their liability.
In reviewing the Consumer Protection Act, 2002, the Court of Appeal noted that there were four sections of particular importance. They were:
- Section 7(1): The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary;
- Section 9(1):The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality;
- Section 9(3):Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void; and,
- Section 9(4):If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.
In reviewing the provisions, the Court of Appeal found that there was a “clear and direct conflict” between the two pieces of legislation. On the one hand, the Occupiers’ Liability Act permitted an occupier to obtain a waiver of liability. On the other hand, the Consumer Protection Act, 2002, precluded a supplier from obtaining a waiver. The bottom line was that what the one permitted, the other prohibited.
In the face of clear conflict, the Court of Appeal looked to the principles of statutory interpretation which urged an approach that allowed both statutes to maintain their maximum application and effectiveness. The Court of Appeal opined that in the specific situation, the Occupiers’ Liability Act must be reasonably seen as dealing directly with the core issue, that is, the ability of occupiers of premises to obtain waivers of liability. This legislation dealt directly and substantially with activities on someone’s premises. In contrast, the Consumer Protection Act, 2002 dealt with all forms of consumer transactions in a general way. The Court of Appeal noted that buying a ski pass was but one of “a myriad of consumer transactions” that the legislation could apply to. The Court concluded that the Consumer Protection Act, 2002 did not operate to void the otherwise valid waivers executed under the Occupiers’ Liability Act.
This decision is seen as a victory for recreational businesses that use waivers to protect themselves from liability in activities that have inherent risk. These organizations are able to continue to rely on their waivers as a means of protecting themselves from claims brought by third parties.
See Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (CanLII).
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