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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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