Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (CanLII)

Appeals from the Orders of Tzimas J., and Mccarthy J., Ordering that liability waivers offended s. 7(1) and 9(3) of the Consumer Protection Act.    

Date Heard: February 7-8, 2018 | Full Decision [PDF]


Schnarr via r. 21 motion and Woodhouse via r. 22 motion brought into question the applicable scope and enforceability of liability waivers executed prior to engaging in recreational activities such as skiing. Tzimas J., in Schnarr held that that Blue Mountain waiver under s. 3(3) of the Occupiers Liability Act partially offended s. 7(1) and 9(3) of the Consumer Protection Act; insofar as it attempted to waive liability in contract. McCarthy J., in Woodhouse held that Snow Valley’s waiver was void in respect of both tort and contract claims, but that a court nevertheless had an equitable power to enforce a void waiver in a consumer agreement by virtue of s. 93(2) of the CPA.

Blue Mountain and Woodhouse appealed. Snow Valley cross-appealed.        


Whether and to what extent the CPA or the OLA governs the relationship between the parties. Contextually, this de novo issue attempts to determine whether ss. 7 and 9 of the CPA vitiate or void an otherwise valid waiver of liability under s. 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. If they do in fact conflict, determining how each statute be interpreted and what effect ought to be given to the impugned provision(s) becomes the central issue.       


Nordheimer J.A, for the Court of Appeal held that ss. 7 and 9 of the CPA fundamentally undermine the purpose of s. 3 of the OLA. These statutes are irreconcilable and conflict. As such, the more specific provision in the OLA prevails over the general provisions in the CPA. Blue Mountain’s appeal and Snow Valley’s cross-appeal is allowed. On the separate issue of the Woodhouse appeal, that was also allowed with respect to the application of s. 92(2).   


The parties agreed that the statutory interpretation issues involve pure questions of law and as such the standard of review is correctness.

At [23] Nordheimer J.A., relies on the modern approach of statutory interpretation adopted in E.A. Driedger, Construction of Statutes, 2nd Ed. (Toronto: Butterworths, 1983) at p. 87 that:

the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act the object of the Act, and the intention of Parliament’. Citing the Supreme Court of Canada in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42.

Occupiers Liability Act

The OLA was the common law codification of a generalized statutory duty of care owed by occupiers following the recommendations of the Ontario Law Reform Commission’s 1972 report on occupier’s liability. The OLA came into force in 1980. The purpose of the OLA included a voluntary assumption (s. 4) in that land owners make their property available for recreational activities by limiting their liability. This was made clear in the Discussion Paper on Occupiers’ Liability and Trespass to Property issued by the Ministry of the Attorney General in May of 1979. S. 3(1) prescribes this primary duty and the standard of care owed. S, 9(1) of the OLA expressly preserves situations where a higher obligation or standard may apply by virtue of i.e. Innkeepers Act, Common Carriers and bailees. While the legislature left itself a right to establish a higher duty, it did not amend the OLA to include obligations owed under the CPA.

Consumer Protection Act

The CPA was enacted in 2002 as an adoption of modern consumer protection law in Ontario. The purpose of the CPA was to consolidate the previous consumer protection statutes and update the law. Prior to its enactment, the Ministry of Consumer and Commercial Relations circulated a consultation paper entitled Consumer Protection for the 21st Century. It explained the reasoning behind the CPA. First, that consumer law should not apply to transactions already governed under regulatory regimes that adequately address consumer protection… there are several areas in which other specialized legal regimes apply instead of consumer law… The Ministry is not proposing that general consumer law apply to these sectors. Second, while the paper discusses the industry specific concerns, there is no commentary that identifies problems with consumer transactions involving occupiers insofar as they provide their premises for the use of consumers engaging in recreational activities; but evident that the principal concern was with respect to financial transactions and preventing scams.

While Schnarr, Woodhouse and the Ministry argue that s. 2(2) and O. Reg. 17/05 exclude specific statutes, not containing the OLA, expression unius est exclusion alterius Nordheimer J.A., at [38] indicates is not an absolute rule. The types of exemptions are financial transactions, specifically, not activities covered by the OLA.

Presumption of Perfection

The Supreme Court of Canada set out the principles of statutory interpretation with respect to the analysis of conflicting statutes in Thibodeau v. Air Canada, 2014 SCC 67:

First, courts take a restrictive approach to what constitutes a conflict in this context. Second, courts find that there is a conflict only when the existence of the conflict, in the restrictive sense of the word, cannot be avoided by interpretation. Overlap on its own, does not constitute conflict in this context, so that even where the ambit of two provisions overlaps, there is a presumption that they both are meant to apply, provided that they can do so without producing absurd results. This presumption may be rebutted if one of the provisions was intended to cover the subject matter exhaustively. Third, only where a conflict is unavoidable should the court resort to statutory provisions and principles of interpretation concerned with which law takes precedence over the other.

The courts have nevertheless recognized conflicts between statutes where:

  1. Provisions are so inconsistent or ‘repugnant’ to each other that they are incapable of standing together; 2012 SCC 68;
  2. The application of one provision must implicitly or explicitly preclude the application of another; 2007 SCC 14; or
  3. Two pieces of legislation are ‘directly contradictory or where their concurrent application would lead to unreasonable or absurd results’ Thibodeau at para. 95.

The principles of statutory interpretation urge an approach that allows both statutes to maintain their maximum application and effectiveness, subject to:

     1. Ejusdem Generis;

While the class of persons is not exhaustive in s. 9(1), the CPA does not purport to apply a special liability or higher standards of care for actions that are incidental to the role of an occupier. It is clear that the application of any special liabilities or higher standards should be read ejusdem generis and restricted to situations that are similar to the enumerated examples.  

     2. Expressio Unius est Exclusio Alterius;

While s. 2(2) of the CPA does not include the OLA in the prescribed list of exempted statutes, the presumption is rebuttable. There was no evidence that the drafting of the CPA and the OLA, in the mind of the legislature, to the interplay between the two statutes. As such there is little value in the expression unius argument.

     3. The Exhaustiveness Doctrine;

The OLA is a single, unified statutory duty to take reasonable care to see that entrants and their property are reasonably safe on the occupiers’ premises. The OLA is intended to be an exhaustive scheme. The very purpose would be undermined if the CPA were allowed to reintroduce another novel contractual duty.

     4. Generalia Specialibus non Derogant;

The OLA deals with the core issue, that is, the ability of occupiers of premises to obtain waivers of liability. In contrast, the CPA deals generally with all forms of consumer transactions. The OLA deals directly with, and substantially, with activities on premises. This approach simply carves out consumer transactions, rather than render the CPA of no force or effect.

     5. Absurdity Doctrine.

It is clear that the purposes of the OLA was to provide protection to occupiers who permitted persons to come onto their lands for the purpose of recreational activities. A fundamental purpose of the OLA is defeated, by the CPA, not through an intentional amendment to the OLA, but through an interpretation of the CPA that results in an indirect and implied amendment.

For example the Ontario Trails Act, 2016, S.O. 2016, c. 8 was enacted to amend the OLA to provide protection to occupiers’ who permitted their premises to be used by members of the public for recreational trails. The Minister of Tourism explained that the purpose of the amendment was to increase the number of trail users growing and protecting a $28 Billion sector.

Policy of CPA

This conclusion does not offend the principle that consumer protection legislation be interpreted generously. That principle only applies where the legislation operates validly.


At the time of writing of this article, no notice of appeal has yet to be filed.


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Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.