'Waive' Goodbye To The Consumer Protection Act For Those Who Are Both Occupiers & Suppliers

In the recent decisions in Schnarr v Blue Mountain1 and Woodhouse v Snow Valley,2 the Court of Appeal for Ontario held that the Occupiers' Liability Act3 ("OLA") prevails over the general provisions of the Consumer Protection Act4 ("CPA").

This decision, where MB's James Tomlinson and Garett Harper successfully represented the intervener Canadian Defence Lawyers, reaffirms the jurisprudence surrounding waivers in Ontario and confirms that waivers are still an effective means of managing risk for occupiers who also meet the definition of "supplier" under the CPA.

The appeals dealt with the issue of whether ss. 7 and 9 of the CPA voided an otherwise valid waiver of liability under s. 3(3) of the OLA, particularly where the party seeking to rely on the waiver is both a "supplier" under the CPA and an "occupier" under the OLA. These appeals also raised the separate issue of the application of s. 93(2) of the CPA and whether it could be used to save a consumer agreement that offended sections of the CPA.

Section 3(3) of the OLA allows an "occupier" to modify the duty of care owed to entrants. This has the effect of shielding ski resort owners/operators from negligence claims brought by their patrons through a properly worded waiver of liability. On the other hand, ss. 7(1) and 9(3) of the CPA prevent "suppliers" from negating or varying a consumer's right to services of a reasonably acceptable quality and deem any term in a contract that purports to do so to be void.

In both actions, the plaintiffs brought the following novel argument before the Superior Court: Do ss. 7(1) and 9(3) of the CPA operate to void a properly executed broad and all-encompassing waiver of liability that would otherwise be enforceable under the OLA?

Background

In both Schnarr and Woodhouse, the plaintiffs were patrons who purchased ski tickets from the defendant ski resorts. The respective plaintiffs executed the ski resorts' waivers of liability as a condition of purchasing tickets. In both cases, the plaintiffs were injured on the ski resorts' premises. The plaintiffs sued.

In Schnarr, the parties brought a Rule 21 motion to determine if Blue Mountain's waiver offended the CPA and should be declared void. In her reasoning, the motions judge held that Blue Mountain's waiver, insofar as it purported to waive liability in contract, was void and severed from the consumer agreement.

In Woodhouse, the parties brought a Rule 22 motion to determine if the waiver was void. The...