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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The Dangers of Pool Entrapment

Pool entrapment occurs when a swimmer becomes trapped due to pump suction, ladders, filters or drains. Resulting injuries can be very serious and may include death by drowning, evisceration or disembowelment. Unfortunately, pool entrapment remains a somewhat hidden danger. Parents and swimmers don’t often think of the issue.

Possibly the most widely-known case of pool entrapment occurred in the United States. A 7 year old girl named Virginia became trapped due to suction from a spa drain. The suction held her under the water and despite her parent’s efforts to rescue her, she drowned. The United States has since enacted the Virginia Graeme Baker Pool and Spa Safety Act which aims to implement safety initiatives to pool and spa facilities.

Canadian standards are put in place to help educate, govern and warn swimmers of pool entrapment. Health Canada and other resources speak to the overall sensible use of water facilities and owner responsibilities. National safety standards ask that “every owner and every operator shall ensure that they identify and render safe all hazards related to underwater entrapment and suction points within the swimming pool.”

It is important that pool owners/operators, parents and swimmers alike are educated, understand the associated risks and know how to take preventative measures. Measures may include:

  1. Properly inspecting the pool drains and systems to ensure they are modernized and safe and that older, dangerous models are replaced

  1. Educating all swimmers to stay away from pool and spa drains, pipes and other protrusions and openings

  1. Educating all swimmers to tie their hair back and remove loose clothing and jewelry before swimming
The summer is here and the weather is hot. Make sure to consider safety precautions, especially with children, when enjoying the water.
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Out Of Country Injuries

Traveling out of the country to take a break from work or nasty winter weather is usually an exciting and refreshing experience. However, accidents can occur anywhere. The injured traveler would be surprised to learn of the many difficulties faced when attempting to recover financial compensation for his or her losses. The standard of care varies from country to country. Bringing a claim against a hotel/resort or medical practitioner can come with many unforeseen roadblocks.

Some countries prohibit personal injury claims altogether; while others adopt a very short time period during which a claim can be made. It is important that travellers consult a local lawyer as soon as possible. The lawyer should be well-versed in the personal injury compensation system in that jurisdiction.

In certain circumstances it is possible to sue a foreign hotel/resort in Ontario for an injury sustained out of the country. The court will look to see if certain criteria are present in deciding whether to assume jurisdiction. This criteria was set out by the Supreme Court of Canada in the decision of Van Breda v. Club Resorts Ltd. As a side note, there are also difficulties in claiming against tour providers or operators located in Ontario. Though they may operate in the province, they are seldom found liable for these types of incidents as they typically have no control over the hotel or resort.
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When Following the Law Leads to Unfair Results

In Soczek v. Allstate Insurance Co., the plaintiff’s husband attempted to kill her by pouring gasoline on her and lighting her on fire. The plaintiff sustained significant injuries and in the midst of the tragic events the family home was burned down. The plaintiff was co-owner of the home with her husband and they were co-insured under an Allstate homeowner's insurance policy. The plaintiff advised her insurer of the fire and sought reimbursement for the damage caused to her home. The insurer refused coverage. It relied on an exclusionary clause in the plaintiff’s policy. The clause excluded coverage for property damage caused by any “intentional or criminal act” by a person insured under the policy, which included the plaintiff's husband.

Justice Morgan heard the motion. His decision highlighted the unfairness of this exclusion clause and acknowledged the hardship and position of the plaintiff. Nevertheless, he decided in favour of the insurer and dismissed the plaintiff's case. The plaintiff was left with the loss of her home and no insurance coverage to repair it.

The fall-out of the decision was not a determining factor in the overall analysis. As difficult as it is to understand, the judge’s hands were tied in the matter. The law in Ontario is clear; it has dealt with this exclusion clause in the past and has refused to put it aside.

Other provinces have taken a pro-active approach to avoid such unjust scenarios by enacting a bar against these types of exclusionary clauses. Unfortunately, Ontario has not followed suit. There’s no doubt that there is fundamental injustice in this decision. It is a prime example of how the law doesn’t always consider fairness and iniquity.

You can read the decision in its entirety here.
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Things To Do After A Fall

There are some basic things you should do after you have been injured as a result of a slip or trip and fall - even if you are not certain that you have a claim. It is much easier to collect important information and take certain steps at the outset then to try and do it weeks or months after the fall.

  1. Provide Notice Immediately: if you think you have slipped or tripped on City property, notify the City of the circumstances right away (i.e., date, time, and location of fall along with a brief description of your injuries). Most City clerks have email addresses and/or facsimile numbers so written notice can be given this way. This is essential since the Municipal Act, 2001 requires that notice be given to the City within 10 days of the incident. There are some limited circumstances in which this notice period can be extended, but it's better to avoid that problem altogether if possible.

  1. Precisely Identify the Location of the Fall: as time goes by (even just hours or days) the accuracy of our memories generally fade. It is typically essential to precisely identify the location of a slip or trip and fall in the legal context. So make sure to gather as much information as you can about the location of your fall - and do it as soon as you can. This includes the date and time the fall occurred, the street or intersection, the municipal address, and any unique characteristics that might help pinpoint the location - such as the location of doorways, planters, traffic lights, bicycle stands, and so on.

  1. Preserve Your Footwear: footwear in a slip or trip and fall is evidence in a lawsuit. The property owner will often argue that the injured person was wearing inappropriate footwear at the time of the incident in order to avoid being found at fault (e.g., high heels in the middle of winter on a sidewalk during a storm). So it is important to stop using the footwear you were in at the time of the incident and bag those shoes or boots for future inspection. Even if, for example, you were wearing proper winter boots when you slipped on ice, if you continue to use those boots for months or years after, the sole will wear down over time and may not help you as much as they should in resolving your claim.

  1. Take Photographs: at times it is simply not practical to take photographs of where you fell. For example, you may be in excruciating pain and require immediate emergency medical assistance. Taking a photograph is the last of your concerns. However, at other times taking a photograph (or having someone else do so) of the location of the fall is possible - and this can prove to be extremely helpful in resolving the claim at some point down the line. Even returning to the scene of the fall several days later to take photographs can be quite helpful - particularly if the cause of your fall remains present (for example, a broken step, a missing interlock brick, or a crumbling curb). It is best to take many photographs of the area, including close up and wide angle shots, and shots from different vantage points, in order to provide the viewer with an accurate understanding of the circumstances giving rise to the fall.

  1. Collect Witness Information: if someone witnessed your slip or trip and fall, make sure to obtain their contact information (full name, address, and telephone number). A witness' evidence as to what occurred can be quite powerful and, much like photographs, can go a long way toward quickly resolving a claim.
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