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The Waiver Is Back

In Schnarr v. Blue Mountain Resorts Limited and Woodhouse v. Snow Valley Resorts (1987) Ltd. the plaintiffs were patrons of ski resorts who purchased ski tickets. They had to execute the ski resorts' waivers of liability as a condition of the ski tickets. The parties agreed that there was a “consumer agreement” as defined under s. 1 of the Consumer Protection Act (“CPA”). It was further agreed that the plaintiffs were “consumers”, and that the Defendants were “suppliers”. The plaintiffs were subsequently injured on the premises and commenced actions.

The issues in the appeal were as follows:

1. Does s. 9 of the CPA conflict with s. 3 of the Occupiers’ Liability Act (“OLA”)?

2. If they conflict, how should each statute be interpreted and what effect should be given to the impugned provisions?

3. In any event, does s. 93(2) of the CPA allow a court to hold a consumer bound to a waiver under s. 9(3) of the CPA? (This case summary does not deal with this question).

The Court noted that s. 3 of the OLA prescribed a default standard of care that requires an occupier to take such care as is reasonable in the circumstances to keep entrants and their property reasonably safe on the premises. Section 4 of the OLA limits this duty by carving out exceptions for “risks willingly assumed by the person who enters on the premises”. Under s. 4, the occupier owes a duty to not create a danger with the deliberate intent of doing harm or damage, and to not act with reckless disregard of the presence of the person or property. Justice Nordheimer noted that the rationale of s. 4 is to encourage private landowners to voluntarily make their property available for recreational activities by limiting their liability.

Section 9 of the CPA indicates that “the supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality". Furthermore, any term or acknowledgement in a consumer agreement that negates or varies the implied or deemed condition or warranty is void. Section 7 of the CPA indicates that the substantive and procedural rights given under the CPA apply despite any agreement or waiver to the contrary. Hence, the defendants argued that the waivers, in so far as they purported to waive liability in contract, were void and severed from the consumer agreement.

Justice Nordheimer concluded that there is a clear and direct conflict between the OLA and CPA. The OLA permits an occupier to obtain a waiver of liability, while the CPA precludes a supplier from obtaining a waiver of liability. In addressing this conflict and how it should be resolved, Justice Nordheimer gave consideration to the following principles of statutory interpretation: (1) the class of things, (2) express mention, (3) exhaustiveness, (4) specific overrules general, (5) and avoiding absurdities.


(1) The class of things

Section 9(1) of the OLA provides that the OLA does not restrict the imposition of a higher liability or standard of care upon occupiers. Justice Nordheimer noted that the CPA does not purport to apply a special liability or higher standard of care for actions that are incidental to the role of an occupier. Rather, the CPA seeks to regulate consumer transactions between a supplier and consumer. Therefore, he concluded that the application of any special liabilities or higher standards imposed by the CPA were not meant to be preserved under s. 9(1) of the OLA.


(2) Express mention

Justice Nordheimer rejected the defendants’ argument that since the OLA provides a prescribed list of exemptions, but fails to rule out the CPA, it implies the exclusion of the CPA. He noted that there is no evidence that in drafting the OLA and CPA the Legislature turned its mind to the interplay between the two statutes. As such, the lack of express reference to CPA in the OLA does not provide a basis to infer that the Legislature intended for the CPA to supersede the OLA.


(3) Exhaustiveness

Based on the legislative history of the OLA, Justice Nordheimer concluded that OLA was intended to be an exhaustive scheme in relation to the liability of occupiers to entrants on their premises flowing from the maintenance of care of the premises. He noted that “the very purpose of this legislative scheme would be undermined if the CPA were allowed to reintroduce another novel contractual duty that purports to subject occupiers to an obligation to warrant that their premises are of a 'reasonably acceptable quality'".


(4) Specific overrules general

Justice Nordheimer was of the view that that OLA was dealing directly with the core issue in the appeal, which is the ability of occupiers of premises to obtain waivers of liability. In contrast, the CPA deals generally with all forms of consumer transactions. He noted that buying a ski ticket is one of many consumer transactions that the CPA could apply to. The OLA, on the other hand, deals directly and substantially with activities on premises. Justice Nordheimer indicated that “to the extent that an occupier engages with members of the public for the use of the occupier’s premises in return for payment, and thus creates a consumer agreement, the provisions of the CPA do not apply to that agreement".


(5) Avoiding absurdity

Justice Nordheimer noted that one of the purposes of the OLA was to provide protection to occupiers who permitted persons to come onto their lands for the purpose of recreational activities. To accept the CPA over the OLA would defeat one of the fundamental purposes of the OLA, not through an intentional amendment to the OLA, but through an interpretation of the CPA that results in an indirect and implied amendment.

Given the foregoing, Justice Nordheimer found that the OLA prevails over the CPA and that the waivers of liability are binding.
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Self- Driving Vehicles: The Good and the Bad

In today’s world many companies in the automotive industry are expending a significant amount of time and resources on self-driving vehicles.

Reports from the United States have analyzed the impact of self-driving vehicles in regards to fatal traffic accidents. The reports have shown that self-driving vehicles could reduce fatalities on the road by 90 percent. Sounds great, right? Unfortunately, there are several things that are impeding the transition to a fully self-driving road.

Recently, a self-driving Uber got into a deadly crash with a pedestrian in Arizona. This is the first known death of a pedestrian by a self-driving vehicle. The Uber vehicle was headed northbound when a 49-year-old woman was struck while pushing a bicycle across the street. She was rushed to the hospital, but sadly succumbed to her injuries and passed away. This incident has resulted in corporations slowing down their road testing and has contributed to the public’s lack of confidence in technology. To read the CTV news article, click here.

Furthermore, these self-driving vehicles have built-in algorithms which may further deter the general public. An example of a built-in algorithm is the ability the car has to avoid a group of pedestrians by driving off the road, thus putting the driver and passengers in the vehicle at risk. The general public will be hesitant on purchasing a vehicle that will put their own life at risk in order to save others.

Theoretically, self-driving vehicles will benefit the public. However, unless they are fully implemented, there will always be human error. For the reasons set out above, there is a significant amount of hesitation in fully adopting these self-driving vehicles.
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Playing Hardball May Have Its Consequences

In the last few years Court decisions have shown that insurance companies are taking stricter positions against plaintiff claims. However, recently an insurer was penalized a substantial amount of money for doing just this. Time will tell whether this decision will deter insurers from playing “hardball”.

In cases that involve a plaintiff delivering an offer to settle that is rejected by the defendant, the Courts rely on Rule 49.10(1) of the Rules of Civil Procedure in determining the amount of legal costs. Rule 49.10(1) states:

49.10 (1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

A recent decision from the Superior Court of Justice outlined the importance of Rule 49 offers and the consequences that accompany such offers. In Persampieri v. Hobbs, the insurer, Aviva, made a tactical decision to reject a Rule 49 offer that the plaintiff ended up beating at trial.

Mrs. Persampieri was an 84-year old woman who was rear ended by a driver who was insured by Aviva. Even though liability was admitted, Aviva took a strong position on threshold under section 267.5(5) of the Insurance Act and refused to pay any damages to the plaintiff. On May 15, 2017, the plaintiff served Aviva with a Rule 49 offer to settle her claim for damages for only $10,000, without pre-judgment interest, plus partial indemnity costs. Trial was held from May 29, 2017 to June 15, 2017. Although the plaintiff was awarded only $20,414.83 for her damages, the court ordered costs of $237,000 against the insurer, payable to the plaintiff.

The main issue in regards to costs was whether the amount should reflect all reasonable costs of trial, as submitted by plaintiff’s counsel, or whether it should proportional to the ultimate verdict, as submitted by defence counsel.

Justice Sanderson held that insurers that take positions on modest claims that necessitate a trial should not be allowed to rely on a strict application of the proportionality principle in determining costs. Justice Sanderson stated that Aviva was a sophisticated insurer that made a tactical decision to reject the plaintiff's Rule 49 offer. Furthermore, Aviva knew or ought to have known that resolving issues at trial involved a lengthy hearing and costly evidence.

Justice Sanderson went on to note that when Insurers take such hardline positions on legitimate claims it can discourage plaintiffs from pursuing such actions, and that could seriously jeopardize overall access to justice. Justice Sanderson stated “even though Insurer’s are able to pursue whatever strategy option they deem fit, the use of such strategies should not be encouraged by the giving of cost breaks on foreseeable cost consequences”.

Justice Sanderson found the plaintiff's evidence to be reasonable and ordered the defendant’s to pay costs of $237,017.50 to the plaintiff.

The full decision of the Ontario Court of Justice can be read here.

An article on the decision in the Toronto Sun can be read here.
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Does being injured from spilling coffee in a car entitle you to accident benefits?

According to the Statutory Accident Benefits Schedule (SABS), in order to be entitled to statutory accident benefits, an injury has to arise from an "accident". Section 3(1) of SABS defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

So, does spilling coffee in a car fall under “an incident in which the use or operation of an automobile directly causes an impairment”? The Ontario Court of Appeal has answered this question in Dittman v. Aviva.

In Dittman, the Plaintiff bought coffee from a McDonald’s drive-thru and spilled it on her thighs when attempting to transfer the coffee to the vehicle’s cup holder. It is important to note that the car remained in gear, although not in motion, and the Plaintiff was wearing her seatbelt, which limited any reflexive actions to avoid the spill. The analysis of the Court of Appeal focused on causation. Justice Gordon determined that the causation test required the consideration of two questions:

  1. Was the use or operation of the vehicle a cause of the injuries?

  1. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” or in other words, was the use or operation of the vehicle a “direct cause” of the injuries?

Justice Gordon determined that but for the use of the vehicle, the Plaintiff’s injuries would not have occurred. Justice Gordon went on to note that if it was not for the use of the vehicle, the Plaintiff would not have been in the drive thru, would not have received or spilled coffee while sitting, and lastly, if the Plaintiff was not seated and restrained by the seatbelt, she would have been able to take evasive action to avoid or minimize the amount of coffee spilled on her thighs.

Justice Gordon then went on to determine if there was an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. Justice Gordon determined that the accidental spilling of a hot beverage is a normal incident of the risk created by the use of a vehicle at a drive-thru. Justice Gordon went on to exemplify that if the drive-thru attendant deliberately threw the coffee on the Plaintiff then that would be an intervening act and would effectively break the chain of causation.

Due to the analysis of Justice Gordon, the act of inadvertently spilling coffee was deemed to be an “accident” according to the SABS. Thus, the Plaintiff was entitled to receive accident benefits. The full decision of the Court of Appeal can be read here.
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