Can an occupier, who is also a "supplier" under the Consumer Protection Act, defeat an Occupiers Liability Act claim by relying on a liability waiver that might violate the CPA?

In the very recent case of Schnarr v Blue Mountain Resorts Limited, the Plaintiff purchased a ski pass from a resort, on the internet. To purchase the pass, he had to execute a comprehensive waiver/release of liability, which he did online. The waiver specifically barred the Plaintiff from pursuing any legal action against the resort whatsoever, including negligence, breach of contract or breach of any statutory or other duty of care.

One day, the plaintiff decided to utilize his ski pass, and headed out on the slopes at the defendant’s ski resort. Unfortunately, the plaintiff was injured while skiing.

The Plaintiff issued a lawsuit against the resort, where he pled breach of deemed warranty pursuant to terms of the Consumer Protection Act (CPA) and negligence under the Occupiers Liability Act (OLA). Section 9(1) of the CPA states: “The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.” Section 7(1) of the CPA states that: “The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary”. The plaintiff argued that, because of sections 9(1) and 7(1) of the CPA, the defendant could not obtain a waiver of its obligations under the CPA to provide services of a “reasonably acceptable quality”.

The plaintiff brought a motion for a finding that section 7(1) of the CPA applied to to vitiate the waiver in its entirety, with the further result that the plaintiff might restore his full rights to sue and to claim damages in negligence for the injuries that he suffered.

The Court delved into the interplay between the OLA and CPA, and the purpose and scope of each statute. The Court noted that on their face, the statutes take different approaches to waivers. This is so because they have very different legislative purposes. Waivers in the OLA are designed to shield occupiers. The rejection of waivers in the CPA is designed to shield consumers. A conflict in the application of both statutes arises when consumers clash with suppliers who are also occupiers.

The Court held that where a waiver is limited in scope to the four corners of what the OLA intended to protect, such waivers would not be impacted by anything in the CPA and would apply with full force. The Court then went on to hold that where a waiver goes beyond the parameters permitted by the OLA and, in particular, includes terms that touch on the deemed warranty anticipated by the CPA, the waiver exceeds the objectives of the OLA and presents with a defect.

Ultimately, the Court cured the defect in the waiver by “reading down” waiver to sever and exclude from its ambit claims that involved the protection of rights under the CPA; the remainder of the waiver remained enforceable, preserving all aspects of the defendant’s waiver that were not affected by the prohibition contained in section 7(1) of the CPA.

This approach allowed the plaintiff to pursue two distinct causes of action: (1) the negligence claim and (2) the breach of warranty. The plaintiff’s negligence claim would be subject to the defendant’s waiver. Consistent with the terms of the CPA, the plaintiff’s breach of warranty claim would not be subject to any waiver.

In sum, the Court took a rather measured approach to the intersection between the OLA and CPA, in the context of an occupier’s liability waiver, by carving into, and chopping up a very broad waiver.

See David Schnarr v Blue Mountain Resorts Limited, 2017 ONSC 114 (CanLII)