William Keele and William Harding, Student-at-Law
The Occupiers Liability Act reigns supreme: Ontario Court of Appeal gives effect to waivers of liability
Written By: William Keele and William Harding, Student-at-Law
In late March, 2018, the Ontario Court of Appeal released its much anticipated decision in the twin cases of Schnarr v Blue Mountain Resort Limited and Woodhouse v Snow Valley Resorts (1987) Ltd. Both cases involved injuries sustained at a ski resort. The two cases were heard together as they both deal with the same issue of how a liability waiver affects the liability of the defendant ski resort.
In Schnarr, the plaintiff had purchased a 2010 season ski pass from Blue Mountain. As part of the online purchase, Mr. Schnarr executed a release of liability agreement, waiver of claims, and assumption of risks and indemnity agreement. While skiing, the plaintiff struck a piece of debris, crashed into a tree and suffered injuries as a result. The plaintiff sought compensation for his injuries, while the defendant relied on the online waiver in its denial of liability.
In Woodhouse, the plaintiff had purchased a beginner ski package from Snow Valley. Part of that package contained a lift ticket which had a release from liability. The Plaintiff also signed an additional release from lability waiver when renting her ski equipment. Ms. Woodhouse sustained injuries while using a tow rope at Snow Valley. As in Schnarr, the defendant denied any liability on the basis of the waiver executed by Ms. Woodhouse.
Both of these cases turn on the interpretation of two pieces of legislation, the Consumer Protection Act (the “CPA”) and the Occupier’s Liability Act (the “OLA”). In each case, the defendant ski resort relied on the OLA in support of their waiver limiting liability. Section 3(3) reads:
The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3.
The plaintiffs on the other hand, rely on The CPA in support of their position that the waiver of liability is not enforceable. Section 7 (1) of the CPA reads:
The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary. 2002, c. 30, Sched. A, s. 7 (1).
At the Superior Court, the plaintiffs were successful in arguing that waivers of lability in accordance with the OLA were voided by the provisions in the CPA. This allowed them to bring claims for their injuries in tort and breach of contract.
Upon appeal however, this decision was overturned. It was ruled that the two pieces of legislation were in conflict with one another and could not be reconciled. It was determined that OLA was intended to be an exhaustive scheme and supersedes the CPA. The result of this decision is that liability waivers are effective in limiting the duty owed by occupiers to their guests. The provisions of the CPA relied on to bring claims for injuries in the past will no longer apply.
This decision will have serious implications moving forward. In the past, injured people were able to recover for injuries sustained during activities such as skiing and mountain biking. Now, if a waiver of liability is completed, it will be far more difficult for injured people to recover compensation through a civil lawsuit.