The Death Knell for Waivers? Not Quite.

waiver superimposed on snowboarder's wake

In December 2008, Elizabeth Woodhouse was injured during a skiing trip with her spouse and grandson at a ski facility run by Snow Valley Resorts. The lawsuit that followed, Woodhouse v. Snow Valley Resorts, breaks new ground for waivers of liability in Ontario.

Liability Forms

Liability forms are legal documents that are intended to reduce a person or company’s risk of being liable for accidents or injuries that may occur. Through the act of providing a signature, liability waivers show that both parties acknowledge risks involved with a specific activity.

Ms. Woodhouse purchased a beginner ski package, which included a lift ticket, equipment rental, and a lesson. The lift ticket contained a release of liability. Further, Ms. Woodhouse agreed to a “Rental Agreement & Release of Liability” which contained a section titled “Waiver of Claims”. In its defence, Snow Valley acknowledged that it had not explained the waiver of. However, Ms. Woodhouse admitted to having reviewed the wording of it on Snow Valley’s website prior to attending the ski.
Ms. Woodhouse sued Snow Valley for her injuries and losses. Snow Valley requested that the case be dismissed, relying on the release of liability on the lift ticket and the Rental of Agreement & Release of Liability that Ms. Woodhouse signed. Justice J.R. McCarthy dismissed the motion and ordered that the matter must proceed to a trial. He based his decision on the fact that Ms. Woodhouse was a consumer of services and therefore was entitled to the protections of the Consumer Protection Act (“CPA”).

The End of Waivers?

Not quite, but the Woodhouse v. Snow Valley decision is a big step forward in protecting injured victims.

In the case, Justice McCarthy found that the CPA applied to the services being supplied by the resort and thus the resort’s standard waiver of liability is void since it breaches section 9(3) of the CPA.

To understand how this decision was reached starts with looking at section 9(1) of the CPA, which states that “a supplier of services is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.” As noted above, section 9(3) states that any part of a consumer agreement that “purports to negate or vary” the implied warranty in s. 9(1) is void. What does this mean?

This means that a supplier of services cannot contract out of its duty to provide services of a reasonably acceptable quality. That is, those parts of a waiver that limit or negate a supplier’s duty to provide safe services – which would be included in the terms “of reasonably acceptable quality” – will have no force or effect. On this basis, if a person is injured because of a supplier’s negligence, the injured person could still bring a legal claim for her injuries, even in the face of a signed waiver. The first novel question that had to be answered in the case of Ms. Woodhouse was whether or not the lift ticket was a consumer agreement such that it would be subject to the CPA.

Despite Snow Valley’s vigorous argument that a ski lift ticket cannot be considered a consumer agreement, Justice McCarthy ruled that it is a consumer agreement and thus the CPA applies.

A Binding Agreement

But this was not the end of the story. Justice McCarthy further ruled that section 93(2) of the CPA also applies, which may allow a court to hold the consumer to the agreement, including the agreement to waive liability. Justice McCarthy stated that the service supplier must satisfy the court that the terms voided under section 9(3) should remain in the consumer agreement and bind the injured party.

Justice McCarthy ultimately decided that a trial was required for the s. 93(2) analysis. As a practical matter, the onus now rests with Snow Valley to persuade a court that the plaintiff should be bound to the consumer agreement, including the terms and acknowledgements found in the waiver and release of liability agreements.

The bottom line for consumers of services is that this decision opens the door to hold suppliers who cause injury responsible for their negligence – even if a waiver of liability has been signed. This is a step in the right direction.

Kris Bonn
Written by

Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges. Kris has successfully argued cases before juries, judges and the Court of Appeal in Toronto. Kris is active in the community as a Director of the Ontario Trial Lawyers Association and the local Brain Injury Association Quinte District. He is a member of the Hastings County Law Association and the Advocates Society. He supports local charities, including the Trenton and Belleville Hospital Foundations.