Where a service provider relies on the waiver clause of a consumer agreement, and the consumer agreement contains terms that are void by operation of the Consumer Protection Act, the service provider bears the onus to persuade the court that it would be inequitable not to bind the Plaintiff to all or some portions of the consumer agreement, including its waiver clause.
Released January 13, 2017 | Full Decision [CanLII]
The Plaintiff had attended at the Defendant ski facility. She purchased a beginner ski lift ticket which included equipment rental and a lesson. Both the lift ticket and the rental agreement contained an exclusion or release of liability (waiver). The plaintiff had reviewed the wording of the waiver on the Defendant’s website, but the terms had not been explained to her. The plaintiff was unaware of the Consumer Protection Act (“CPA”) or any rights it might afford to her. After taking ski lessons, the plaintiff used the ski facilities, including the tow rope, where she suffered injuries.
Justice McCarthy, by way of a special case under Rule 22, held that the CPA applies to all consumer transactions, including the lift ticket and the executed rental agreement. As well, where a consumer agreement contains terms or acknowledgments that are rendered void by operation of s. 9(3) of the CPA, and where the parties cannot agree to sever those offending terms under s.9(4), the court may exercise jurisdiction to sever the offending terms as part of its s. 93(2) inquiry into whether it would be inequitable in the circumstances for the consumer not to be bound by the original agreement, including those terms and acknowledgments that would be void but for the equitable jurisdiction of the court. The onus rests on the service supplier (in this case the defendant) to satisfy the court that the presumptively void terms should remain in the consumer agreement and bind the plaintiff.
Justice McCarthy went on to hold that the provisions of Occupiers Liability Act do not supersede those of the Consumer Protection Act, and in circumstances where the occupier has made its premises subject to a consumer agreement for the supply of services, the CPA impedes the freedom of that occupier to restrict, modify or exclude its duty to provide services of a reasonable quality in a consumer transaction.
Read the full decision on CanLII
