Wolfe Lawyers Personal Injury Law
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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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Life Insurance Payout Denied

Some life insurance policies include an exclusion where the policy holder has died while committing a crime or died "as a result of" criminal activity. In such circumstances payout under the policy will be denied by the insurer.

This is precisely what happened to Vanessa Valentyne when she sought payment under her son's life insurance policy from The Canada Life Assurance Company. Vanessa's son, Kevin, was a known drug dealer. In 2013 he was out for lunch with his girlfriend when he was summoned to a house by two of his associates. He drove to the location and left his girlfriend in the running car while he stepped inside the house. He was never seen or heard from again.

Four years later, a British Columbia Supreme Court justice has upheld the insurer's refusal to issue payment under the policy on the grounds that the exclusion applied: "I need only be satisfied on a balance of probabilities that his death was a result of his involvement in criminal activity," wrote Justice Catherine Murray. "The only rational conclusion is that Mr. Valentyne was murdered as a result of his involvement in drug trafficking, a criminal offence."

You can read more about the interesting facts underlying this decision here and here.

Always Report Accidents to Your Insurer to Protect Your Rights

There are several things that you have to do in order to protect yourself after you have been involved in an automobile accident. One of these things is that you must report the accident to your insurance representative. This reporting requirement is mandatory because of the Highway Traffic Act. One section in the standard Ontario Auto Policy, section 1.4, notes that the reporting requirement is mandatory whether you are planning on filing a claim or not.

In some cases, such as with minor accidents, it is possible that you and the other party might decide to handle the damages through a personal agreement. Have you thought about what would happen if the other party doesn't pay as agreed upon? Unless you report the accident to your insurance company, you might not be able to have the damages covered unless you pay for them out of pocket. It is possible for your insurance company to deny coverage in this instance.

All collision centres have phone lines to make it easy for you to file a claim. While it might be tempting to skip that step, you are actually breaking a contract with your insurance company if you fail to report every car crash that you have. When you got the insurance policy, you agreed in writing to report all accidents.

Another consideration occurs if you don't report an accident, but the other party ultimately reports the accident. In that case, your insurance company will likely find out about the accident in that manner. Ultimately, reporting your accident is one way to protect yourself after the accident.

Source: TheStar.com, "Always tell your insurer about an accident", Perry Lefko, April 29, 2016.
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Should I Insure My ATV?

It’s surprising (to Wolfe Lawyers, at least) how many people do not insure their all-terrain vehicles (ATVs) under a policy of automobile insurance.

One such person was Arthur Matheson, a farmer who used his ATV to patrol his 900-acre property upon which he raised cattle and sheep. Mr. Matheson’s farm abutted a public roadway at various locations and he fell into the habit of using his ATV on this roadway to check his sheep. While doing so one day he was struck from behind by a truck. Unfortunately, he suffered serious injuries as a result. The driver who struck him fled the scene but was subsequently located and convicted of careless driving, obstruction of justice, and breach of probation.

Mr. Matheson commenced a lawsuit against the driver. Unfortunately, even though the accident was clearly not his fault, Mr. Matheson learned a very difficult lesson about the law in Ontario: Section 267.6 of the Insurance Act prevents a person from commencing an action for damages for bodily injury when that person has contravened Section 2(1) of the Compulsory Automobile Insurance Act. That section states that no owner or lessee of a motor vehicle shall operate or permit the operation of a motor vehicle on a highway (i.e., a public road) unless that vehicle is insured under a contract of automobile insurance. Mr. Matheson tried to utilize an exception to this rule that applies to farmers but failed.

Consequently, Mr. Matheson’s lawsuit was statute-barred, meaning he was prevented from suing the at-fault driver even though the collision was not his fault. The full decision of the Ontario Court of Appeal can be read here.

The moral of the story? Insure your ATV.
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