A three-member panel of the Court of Appeal held that the Consumer Protection Act (CPA), specifically sections 7 and 9, undermine section 3 of the Occupiers’ Liability Act (OLA) and, therefore, cannot be used to void a liability waiver.
This case involved appeals from two separate Superior Court decisions inSchnarr v. Blue Mountain Resorts Ltd. and Woodhouse v. Snow Valley. At the heart of this case was whether the OLA or the CPA governed the relationship between the parties. The plaintiffs were pursuing personal injury claims suffered by them while using the premises for its intended purpose – skiing. Both had signed waivers of liability.
The plaintiffs were successful at the Superior Court in arguing that the waivers of liability under section 3 of the OLA were voided by relying on provisions of the CPA. They argued that, as the plaintiffs are consumers and ski resorts are suppliers, the contracts they entered into are consumer agreements and, therefore, controlled by the CPA rather than the OLA. A supplier cannot waive liability for services that are not of “reasonable acceptable quality” pursuant to sections 7 and 9 of the CPA. However, the ski resorts are suppliers under the CPA and also occupiers under the OLA.
As the Superior Court decisions were decisions on motions involving questions of law, the applicable standard of review for the appeals was correctness. The Court of Appeal overturned both lower level decisions, finding that the plaintiffs were bound by their liability waivers. This was so whether the plaintiffs’ claims are in tort under the OLA or contract (breach of warranty) under the CPA.
The CPA and the OLA were found to conflict and be irreconcilable. The OLA permits an occupier to obtain a waiver of liability (especially important to operators of recreational activities) whereas the CPA precludes a supplier from obtaining a waiver of liability. The Court preferred the more specific provision of the OLA over the general provisions in the CPA. The Court found that the OLA was intended to be an “exhaustive scheme” regarding 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 were to take precedence in such circumstances. The Court held that the OLA supersedes the CPA. Therefore, activities occurring on an occupiers’ premises in return for payment are covered by the OLA. The provisions of the CPA do not apply.
The matters were remitted back to the Superior Court to proceed with the OLA as governing the relationship between the parties.
