Superior Court Judge invalidates waiver on the basis of violation of the Consumer Protection Act
Released January 6, 2017 | Full Decision [CanLII]
On January 6, 2017, the Honourable Madam Justice Tzimas released an Endorsement arising from a motion brought by the Plaintiff to have the Defendant’s waiver ruled to be invalid as it offended the Consumer Protection Act (“CPA”). The Plaintiff relied on subsections 7(1) and 9(3) of the CPA which state that consumer rights and warranties under the CPA cannot be negated or varied and that any term or acknowledgement in a contract which purports to do so shall be deemed void.
The Plaintiff argued that the Defendant, as a supplier of services, failed to provide services of a reasonably acceptable quality in relation to the operation of its ski resort which led to the Plaintiff’s injuries. As such, the Defendant violated the deemed warranty under subsection 9(1) of the CPA. In addition, the Plaintiff argued that the Defendant, as an occupier, was negligent and breached its duty of care under the Occupiers’ Liability Act (“OLA”). Plaintiff’s counsel argued that the Defendant wore two ‘hats’ by acting as an ‘occupier’ and as a ‘supplier’ of services and as such, should not be permitted to rely upon their broad and all-encompassing waiver which prevented claims from being advanced arising out of negligence and breach of any and all duties.
This is the first decision from the Court ruling on the interplay between the CPA and the OLA in relation to waivers of liability in the recreational industry. Madam Justice Tzimas noted that this was a novel legal question. The question was whether a Defendant may rely upon a broad and all-encompassing waiver to limit their liability when it acts as both an ‘occupier’ and as a ‘supplier’.
In her Endorsement, Madam Justice Tzimas reviewed and considered the history of waiver case law and the foundation and interpretation of both the OLA and the CPA. Madam Justice Tzimas noted that this issue had application on the recreational industries, not only in Ontario, but across the country.
Madam Justice Tzimas concluded that the Defendant’s waiver was too broad and all-encompassing such that it offended the requirements of the CPA. Madam Justice Tzimas ruled that by operation of subsection 7(1) of the CPA, a Defendant cannot disclaim liability for any breach of the deemed warranty contemplated by subsection 9(1) of the CPA. The Defendant’s waiver was read down to exclude protections from any claims advanced under the CPA. The remainder of the Defendant’s waiver, as it pertained to negligence under the OLA, was found to be enforceable. In sum, the Plaintiff was permitted to pursue two distinct causes of action, a negligence claim, which would be subject to potential waiver defences, and a breach of warranty claim which would not be subject to any waiver.
Read the full decision on CanLII
