The Consumer Protection Act does not invalidate waivers issued by recreational businesses to protect them against liability for injuries suffered by visitors to their premises.

That’s according to a ruling handed down last month in which the Court of Appeal for Ontario had to decide over a conflict between the Consumer Protection Act (CPA) and the Occupiers' Liability Act (OLA), which governs the obligations of occupiers (as defined in the OLA and jurisprudence) to, among other things, keep everyone reasonably safe while on the premises. The Court held that the specific provisions of the OLA prevail over the more general provisions of the CPA.

In Schnarr v. Blue Mountain Resorts Limited, the Court had to decide two cases, heard together, involving plaintiffs who had purchased ski tickets from defendant ski resorts. In both cases, the patrons signed waivers of liability before injuring themselves on the resorts' premises, after which they both sued for damages.

As intervenor, the Minister of Government and Consumer Services argued that an occupier should not be free to restrict its liability when providing goods and services since this would directly contravene the CPA and its main objective in protecting consumers. It further argued that a ruling in favour of the resorts would likely lead to other types of businesses attempting to require consumers to waive their CPA rights.

The Lower Court Rulings

In the previous proceedings, the parties agreed that the purchases of lift tickets were "consumer agreement[s]" as defined in the CPA. The judge in the first plaintiff's case found that the ski resort's waiver, insofar as it purported to waive liability in contract, was void and severed from the consumer agreement by virtue of the CPA. In the second plaintiff's case the Court found that the CPA voided the ski resort’s waiver in respect of both tort and contract claims.

The Appeal

Noting that it faced questions of law to be determined on a correctness standard of review, the Court of Appeal examined the purpose behind the statutory provisions in question.

The OLA prescribes a default standard of care (s. 3) that requires an occupier to take such care as is reasonable in the circumstances to keep entrants reasonably safe on their premises. It also provides (s. 4) that the duty does not apply to risks willingly assumed by entrants on a premises. This, the Court wrote, was to encourage private landowners to voluntarily make their premises available for recreational activities by limiting owners' liability.

But under its sections 7 and 9, parties to a consumer agreement cannot contract out of the rights provided under the CPA, including implied conditions and warranties applying to the transaction. What’s more, any terms or acknowledgements that purport to negate the application of the CPA are void or severable from the agreement. The Court determined that the legislature's principal concern in enacting the CPA (22 years after the OLA came into force) was with respect to financial transactions and scams. There was nothing to suggest that the CPA was intended to change the existing framework governing occupiers' liability.

The Court found that two main issues were raised with regard to whether the OLA or the CPA governed the relationship between the parties to the appeal:

1. Is there a conflict between s. 3 of the OLA and s. 7 of the CPA?

There is a clear and direct conflict between the two provisions. Under the OLA, an occupier can obtain a waiver of liability from any person coming onto their premises. However, that same occupier, if they are also a supplier under the CPA, cannot obtain an equivalent waiver. The Court found this to be a direct contradiction. In further addressing the plaintiffs' argument that the waivers protected the ski resorts from negligence but not breach of warranty claims, it held that drawing a distinction between the two causes of action would lead to an absurd result. Notwithstanding that the waiver validly protected the occupier against a negligence claim, the ski resorts would still be held liable for the plaintiff's injuries under a different liability theory and so the waiver would have no practical effect.

2. Given the conflict, how should the statutes be interpreted?

The Court used a number of statutory interpretation principles in its analysis. While the OLA explicitly (s.9) does not restrict the imposition of a higher liability or standard of care upon occupiers, it found that the CPA does not purport to apply any such special liability or higher standard of care. Rather, the CPA seeks to regulate an entirely separate category of consumer transactions. Further, there is no basis to expect an express reference of the OLA in the CPA's listed exceptions as there was no evidence that the legislature considered the interplay between the statutes.

The Court decided that the OLA was intended to be an exhaustive scheme. It is also a more specific law that deals directly with activities on premises; whereas buying a ski pass is but one of a myriad of consumer transactions to which the CPA can apply. The purpose of the OLA scheme would be undermined were the CPA to introduce another novel contractual duty that subjected occupiers to an obligation to warrant that their premises were of a "reasonably acceptable quality."

The Court found that it would be difficult to accept that the legislature went through the exercise of intentionally amending the OLA for the purpose of clarifying occupiers' liability only to have it rendered of no force or effect because of the existence of the CPA.

Consumer protection legislation should be interpreted generously only where it operates validly. Deciding that the CPA does not operate within the sphere of activities governed by the OLA does not undercut the effectiveness of the CPA and nor does it offend public policy. Rather, it allows for the commercial flexibility necessary to promote the goal of encouraging landowners to allow use of their premises for recreational activities. In the result, the Court concluded that the OLA carves out consumer transactions relating to OLA-covered activities from the application of the CPA and remitted the proceedings back to the Superior Court to proceed in accordance with its reasons.

Conclusion

In Schnarr, the Court of Appeal offered clarification with regard to occupiers' liability and the application of the CPA. It is clear that to the extent that an occupier engages with members of the public for the use of its premises in return for payment and a waiver, and thus creates a consumer agreement, the provisions of the CPA do not apply to invalidate the protection the waiver purports to provide to the occupier.

That being said, it is important to note that the Court of Appeal was focused on the specific question of whether the CPA invalidated the waiver. The Court did not consider the language of the waiver or the adequacy or enforceability of the language of the waivers themselves. That is a fight for another day.

It will be interesting to monitor Ontario's legislature moving forward. Specifically, will the Minister of Government and Consumer Services seek to amend the CPA? Given that the statute's main objective of protecting consumers was nullified with respect to occupiers in certain circumstances in Schnarr, we’ll see whether the province will try to legislate the intersection of the CPA and OLA in response to this decision.

Nonetheless, the Schnarr ruling is good news for any Ontario entity making their land or premises available for recreational use. Moving forward, occupiers can have confidence that their waivers cannot be challenged as being void for being contrary to the CPA.