The Consumer Protection Act vs. The Occupiers’ Liability Act – which prevails when dealing with a waiver of liability?

Published on: December 2018 | What's Trending

The Occupiers' Liability Act

We all attend various activities throughout the year to keep ourselves occupied.  Water parks, fitness centres and ski hills to name a few.  And often, when attending at these type of activities, we are asked to sign a Waiver of Liability in favour of the provider, in case any injury occurs.  However, is that waiver valid or is it void?   There has been a tension between two governing acts: the Occupiers’ Liability Act (OLA) and Consumer Protection Act (CPA), and whether the liability of waiver is voided by the Consumer Protection Act.

The Court of Appeal at the end of March 2018 heard two appeals together as they both raised and dealt with this tension between the Acts. (Schnarr v. Blue Mountain Resorts Limited and Woodhouse v. Snow Valley Resorts)  In both cases, the Plaintiffs were patrons of a defendant ski resort who purchased ski tickets.  These patrons executed the ski resorts’ waivers of liability as a condition of their tickets.  In both cases, the patrons were injured on the ski premises.  The patrons sued.

These appeals raised the question of whether the CPA or the OLA governs the relationship between the parties. Specifically, the appeals presented a case of first impression as to whether sections7 and 9 of the CPA vitiate or void an otherwise valid waiver of liability under section 3 of the OLA, where the party seeking to rely on the waiver is both a “supplier” under the CPA and an “occupier” under the OLA.

In this case, there was a clear and direct conflict between the OLA and the CPA. 

The OLA permits an occupier to obtain a waiver of liability.

The CPA precludes a supplier from obtaining a waiver of liability.

In other words, what the OLA permits, the CPA prohibits.

The OLA permits an occupier to “restrict, modify or exclude” the duty imposed by the statute, regardless of whether a claim is founded in contract or in tort.

The conclusion reached by the Court of Appeal is that the CPA does not operate within the sphere of activities governed by the OLA, does not undercut the effectiveness of the CPA, nor does it offend public policy. Rather, it allows for the commercial flexibility necessary to promote the goal of encouraging landowners to permit their premises to be used for recreational activities.

Finally, this conclusion is also consistent with the principle that broad language in legislation may be given a restricted interpretation where necessary in order to avoid an absurdity.

The result of the decision is that sections 7 and 9 of the CPA cannot be used to strike down an otherwise valid liability waiver.

Waivers have had to fight an uphill battle.  There have been cases to discuss the wording of waivers, how they need to be brought to the attention of customers, the scope of the waiver.  I think that the Court of Appeal made the correct decision because otherwise, there would be no benefit to any landowner to host recreational activities.

We await to see whether the decision will be appealed to the Supreme Court of Canada.  In the meantime, pay attention to any waivers executed.