If you’ve ever purchased a ski lift ticket, you’ve probably signed a waiver of liability in favour of the ski resort. Most of us do not take the time to read these waivers in detail, but they usually include sweeping exclusions of liability, such that it can be difficult to recover compensation from a ski resort even if you are injured as a result of the ski resort’s negligence.

Waivers, which are used in many recreational industries beyond skiing, have never been invulnerable – courts will not enforce a waiver if it is not broad enough to cover a plaintiff’s claim, or if it is unconscionable or against public policy.

Two recent Ontario Superior Court of Justice decisions give injured plaintiffs an additional avenue of protection against waivers of liability. In David Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114, and Woodhouse v. Snow Valley Resorts (1987) Ltd., 2017 ONSC 222, the court held that certain terms in waivers of liability were void, because they violated the Consumer Protection Act, 2002, SO 2002, c 30, Sch (CPA).

In David Schnarr v. Blue Mountain Resorts Limited, the plaintiff brought a Rule 21 motion for a judicial determination of a question of law concerning the application of section 7(1) of the CPA in the context of a negligence claim. The plaintiff had been injured while skiing at the defendant’s ski resort. Prior to skiing, the plaintiff had signed a waiver of liability in favour of the defendant.

The waiver was broadly worded, and included a release of “any and all liability for any loss, damage, expense or injury … due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupier’s Liability Act…”

The plaintiff initially only sued the defendant on the basis of negligence, including breach of the duty of care set out in the Occupiers’ Liability Act, RSO 1990, c O.2 (OLA). The plaintiff later amended the claim to plead breach of deemed warranty pursuant to the terms of the CPA.

Section 7(1) of the CPA provides that a consumer’s waiver of liability in favour of a supplier is unenforceable as it relates to substantive and procedural rights that are protected by the CPA. One of those rights, provided in s. 9(1) of the CPA, is that suppliers are deemed to warrant that services provided for are of a “reasonably acceptable quality.”

Essentially, the plaintiff pleaded that the defendant failed to provide services of a reasonably acceptable quality.

The motion judge stated that the amendment of the pleadings gave rise to a novel question of law concerning the interplay between the CPA and the OLA.

Sections 3(3) and 5(3) of the OLA allow an occupier to exclude its liability for negligence. The provisions concern breaches of an occupier’s duty of care, and allow an occupier to restrict, modify, or exclude an occupier’s duty altogether. The motion judge noted that nothing in these sections extends to causes of action outside the tort regime and an occupier’s negligence.

The plaintiff argued that, because the waiver violated section 7(1) of the CPA, in that it included a waiver of the defendant’s liability for breach of contract (and therefore purported to limit a consumer’s right to bring an action for breach of the implied warranty that services be of a reasonably acceptable quality), the entire waiver should be void.

The motion judge disagreed, finding that the provisions of the CPA (specifically s. 9(3) and 9(4)) allowed for the isolation and severance of the offending term. Moreover, to void the entire waiver would be to derogate from the provisions of the OLA, which allow an occupier to limit its liability for breaches of its duty of care as an occupier.

The motion judge therefore concluded that the correct approach, which allowed the OPA and the CPA to function without conflict, was to read the waiver down in accordance with the doctrine of notional severance (blue pencil severance being inappropriate in the circumstances). The remainder of the waiver remained enforceable.

In essence, the plaintiff was allowed to pursue two distinct causes of action – (1) the negligence claim, which remained subject to the defendant’s waiver, and (2) the claim for breach of warranty, which, pursuant to the CPA, was not subject to the defendant’s waiver.

In Woodhouse v. Snow Valley, the court came to a similar (though not identical) conclusion. The court in that case also concluded that a term in a waiver in favour of an occupier, who is also a supplier, which offends the CPA is rendered void. The court further concluded that the offending term may be read down, such that the remainder of the waiver is preserved. However, the judge in Woodhouse found that, in addition to terms in the waiver releasing the defendant from liability for breach of contract and breach of warranty, terms dealing with liability for negligence and breach of a statutory duty of care could also be rendered void.

If you or a family member has been injured at a ski resort, call one of the lawyers at Burn Tucker Lachaîne.  Our initial consultation is free. You can come to our accessible office with free parking in Ottawa or we can visit you at home or at the hospital.  We offer legal services in French and English. Visit our website site at www.burntucker.com for more information.

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