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OCCUPIERS’ LIABILITY - Legislation - Particular situations - Sporting facility

Monday, May 07, 2018 @ 8:40 AM  

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Appeals by Blue Valley and Woodhouse and cross-appeal by Snow Valley for the judgment in two actions dealing with the liability of ski resorts for injuries sustained by their patrons. Schnarr and Woodhouse purchased ski tickets for Blue Valley and Snow Valley, respectively. Both executed waivers of liability as a condition of their tickets. Both were injured on the ski resorts’ premises. The judge in Schnarr’s action found that there was a consumer agreement between Schnarr and Blue Valley, such that the waiver was void and severed from the consumer agreement because it partially offended ss. 7 and 9 of the Consumer Protection Act (CPA). The judge found that Schnarr was allowed to advance two distinct causes of action, one for negligence that was subject to the waiver, and one for breach of warranty which was not. The judge in Woodhouse’s case found that the waiver was void in respect of both the tort and contract claims, but he held that the court had the equitable power to enforce it.

HELD: Appeal by Blue Valley and cross-appeal by Snow Valley allowed; cross-appeal by Woodhouse allowed. Schnarr was bound by the Blue Valley waiver and Woodhouse was bound by the Snow Valley waiver. The ski resorts’ duties to Schnarr and Woodhouse, under the Occupiers’ Liability Act (OLA) and the CPA, were in conflict. It was an artificial distinction for the judge in Schnarr’s claim to decide that the OLA applied to the tort claim and the CPA applied to the contractual claim. Under the OLA, the ski resorts had lawful waivers that would exclude their liability for the injuries suffered by Schnarr and Woodhouse. It was unreasonable to conclude these waivers were of no effect by virtue of the CPA. The OLA was intended to be an exhaustive scheme in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises. The purpose of the OLA would be undermined if the CPA was allowed to reintroduce another novel contractual duty purporting to subject occupiers to an obligation to warrant that their premises were of a reasonably acceptable quality. The OLA was more specific because it dealt directly with one core issue, the ability of occupiers to obtain waivers, while the CPA dealt generally with all forms of consumer transactions. Although unnecessary to determine because of the ruling in the appeal and cross-appeal by the ski resorts, the court allowed Woodhouse’s cross-appeal on the issue of whether section 93(2) of the CPA could be used to give effect to a waiver voided by the CPA. There was nothing to suggest that the legislature intended that courts would be able to hold a consumer to a waiver that was otherwise void under s. 9 of the CPA.

Schnarr v. Blue Mountain Resorts Ltd., [2018] O.J. No. 1664, Ontario Court of Appeal, D.H. Doherty, D.M. Brown and I.V.B. Nordheimer JJ.A., March 28, 2018. Digest No. TLD-May72018001