Occupier’s waiver of liability invalidated under the Consumer Protection Act

In Schnarr v. Blue Mountain Resorts Limited, the Ontario Superior Court of Justice determined a novel legal issue  addressing the intersection of the Consumer Protection Act (Ontario) (the “CPA“) and the Occupiers’ Liability Act (Ontario) (the “OLA“) as to the protections afforded to consumers under the CPA and to suppliers under the OLA and how these Acts relate to waivers of liability for recreational activities.

Schnarr, who had purchased a season ski pass from Blue Mountain, had a collision on a trail run and sustained injuries. Schnarr initially commenced action against Blue Mountain as a tort claim for breach of the OLA and subsequently amended the action to plead breach of deemed warranty under the CPA, specifically section 9(1) which provides that a supplier is deemed to warrant that the services it is providing are of a reasonably acceptable quality. Schnarr asked the court to conclude that section 7(1) vitiated Blue Mountain’s waiver in its entirety. Section 7(1) prohibits the waiver of a consumer’s substantive and procedural rights under the CPA.

The parties agreed that Schnarr,  Blue Mountain and the ski pass were subject to the following definitions under the CPA: “consumer”, “supplier”, and “consumer agreement”.

When completing the agreement with Blue Mountain to purchase the ski pass, Schnarr agreed to a comprehensive waiver that expressly barred him from pursuing any legal action against Blue Mountain, including a waiver of breach of contract. A breach of contract would include a breach of Section 9(1) of the CPA, which is a deemed term of a consumer agreement.

The court underwent a thorough analysis, which I will review in the October 2017 publication of the Annotated Ontario Consumer Protection Act (* sounds like a shameless plug, but the analysis is too lengthy for the purposes of a blog post – and I need to get my chilli lime chicken wings out of the oven! *). The analysis involved, inter alia, (1) the interplay between the OLA and the CPA, (2) a review of the modern principle of statutory interpretation, (3) a review of legislative intent and legislative history of the CPA and OLA,  and (4) severance in the context of agreements.

The court determined that the Blue Mountain waiver’s reference to breach of contract and “any type of loss or damage” engaged the CPA protections and had the effect of “bleeding into CPA territory”. However, the court did not vitiate the entire waiver and instead read down the waiver as to sever the portion that excluded claims involving substantive and procedural rights under the CPA – the remainder of the waiver remained enforceable. The court found this remedy to be the least disruptive to both parties and to allow for an interpretation of the waiver that was considered to recognize the protections for occupiers under the OLA and for consumers under the CPA.

Key takeaways: (1) Occupiers who are also suppliers may be subject to the CPA and (2) Carefully consider the wording used when drafting waivers – in this case, the “exceptionally broad” nature of the waiver triggered the application of the CPA.

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