CITATION: David Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114 COURT FILE NO.: CV DATE:

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1 CITATION: David Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114 COURT FILE NO.: CV DATE: SUPERIOR COURT OF JUSTICE - ONTARIO RE: David Schnarr, Plaintiff AND: Blue Mountain Resorts Limited, Defendant BEFORE: Justice E.R. Tzimas COUNSEL: Peter Cho, Counsel for the Plaintiff Robert A. Betts, Counsel for the Defendant HEARD: April 6, 2016, September 13, 2016, and November 10, 2016 INTRODUCTION ENDORSEMENT [1] The plaintiff in this matter, David Schnarr, brought a Rule 21 motion for a judicial determination of a question of law concerning the application and the breadth of section 7(1) of the Consumers Protection Act, 2000, S.O. 2002, c.30 Sched. A (the CPA), in the context of a negligence claim where the plaintiff was injured while skiing at the defendant s ski resort. The issue he raised is a novel legal question. It effectively engages the interplay between the rights of

2 consumers, pursuant the CPA, and the rights and liabilities of occupiers, pursuant to sections 3(3) and 5(3) of the Occupiers Liability Act, R.S.O. 1990, c.02 (the OLA). [2] According to the CPA, if a consumer signs a waiver of liability with a supplier that waiver is unenforceable as it relates to substantive and procedural rights that are protected by the CPA. Section 7(1) in particular, vitiates the waiver of CPA rights and returns them to the consumer. One of those rights, provided for in section 9(1) of the CPA, is that suppliers are deemed to warrant that services provided are of a reasonably acceptable quality. [3] The plaintiff asked this court to apply section 7(1) of the CPA and to interpret it in such a manner so as to vitiate the defendant s entire comprehensive waiver/release of liability which he signed. The defendant s waiver is a waiver of any and all liability for any loss, damage, expense or injury due to any cause whatsoever, including negligence, breach of contract any statutory or other duty of care, including any duty of care owed under the Occupiers Liability Act The plaintiff s proposed interpretation of section 7(1) of the CPA would have the effect of eliminating the protections afforded to occupiers by virtue of sections 3(3) and 5(3) of the OLA which allows for the waiver of liability for negligence claims.

3 [4] The defendant strenuously opposed such an interpretation. It argued that Canadian Courts have accepted waivers as an appropriate way for occupiers to avoid liability for accidents and injuries and that the OLA expressly permits occupiers to use exculpatory waivers so long as reasonable efforts are made to bring the waiver to the attention of those accessing the premises. The defendant argued that the plaintiff s proposed interpretation of the CPA would reverse the law on waivers and would upend years of jurisprudence. The defendant also submitted that the CPA was never intended to bleed over and impact Ontario s tort regime. In any event, the defendant noted that its waiver did not run afoul of sections 7(1), 9(1) and 9(3) of the CPA. [5] Underpinning the defendant s position was the policy view that any change in the legal application and use of waivers by occupiers to protect themselves from liability for accidents and injuries would have a profound impact on the recreation and trust industries, not only in Ontario, but across the country. These industries depend on waivers of liability and their elimination would reverse decades of established law in Canada. [6] In my consideration of this issue I reviewed the parties submissions, both oral and written, the principles of statutory interpretation, the longstanding law on exculpatory waivers pursuant to the OLA, the objectives and purpose of the CPA, and the principles of severance. The task before me was to determine

4 whether the two provincial statutes conflicted and if so to provide for an interpretation that would result in a just and fair meaning of the respective provisions. The modern principles of statutory interpretation do not allow one provision in a provincial statue to override another provision in another distinct statute. [7] For the purposes of this motion, the parties agreed that the defendant is a supplier, as contemplated by the CPA and that the waiver was part of the consumer agreement between them. The plaintiff took the firm position that even though the CPA only concerned waivers of CPA protections, section 7(1) of the CPA could be used to strike those parts of the defendant s waiver that did not relate to the CPA. The plaintiff categorically denied any possibility that the defendant s waiver might be read down to extract the CPA protections from the ambit of the waiver, and therefore cure the defect in the defendant s waiver. In support of his position, the plaintiff advanced a number of arguments that have already been settled in the jurisprudence and went as far as to suggest that the court should not hesitate to engage in what would amount to a wholesale re-writing of the jurisprudence on waivers and the law concerning the OLA and to upend established legal principles. In effect, the plaintiff urged the court to find that the requirements of the CPA trumped the defendant s rights under the OLA.

5 [8] The defendant took a more nuanced approach, but nonetheless asked the Court to give a preference to the terms of the OLA over those of the CPA and effectively override anything contained in the CPA. Its primary position was that the waiver did not offend the CPA requirements, that it had nothing to do with the CPA warranty, and, in any event, the court should exercise its equitable discretion in the face of the established case law and recognize the requirements of the OLA over those of the CPA in a negligence claim. In the alternative, the defendant did not disagree with the resort to some form of severance if it meant curing a defect in its existing waiver. [9] In sum, even though both parties agreed with the modern principles of statutory interpretation and the need to come to an interpretation that is fair and just, the effect of their respective positions was to invite the court to override one provision in the one statue by the provision of the other statute. In the result, the plaintiff insisted that section 7(1) of the CPA could be used as a vehicle to vitiate the defendant s entire waiver. The defendant submitted that the OLA was a specific piece of legislation that ought to prevail over the general requirements of the CPA so that its waiver would survive in its entirety without any recourse to severance. [10] In reaching my decision, there were three overriding dimensions to this issue that served to shape my overall decision. The first was the recognition

6 that the two provincial statutes treat waivers very differently. The CPA shields consumers from waivers related to CPA protections. The OLA allows occupiers to use waivers as a shield against negligence claims. The reference to waivers in the two statutes and the extent of their use is consistent with the statutes respective purposes. Viewed in isolation, the statutes do not conflict with each other or contain contradictory terms. They come into conflict when a consumer interacts with a supplier who is also an occupier. [11] This leads to the second dimension of the issue before me. The defendant s waiver is worded in exceptionally broad terms so as to cover off any claim for loss or damages, arising out of any cause whatsoever, including breach of contract. A breach of contract would include breach of the warranty of a reasonably acceptable quality of service. The supplier would not have to make any representations about the quality of service to be provided because the warranty under the CPA is a deemed term of the consumer agreement. The defendant s broadly worded waiver has the effect of bleeding into CPA territory. The defendant was correct to note the very distinct purpose and objectives of the OLA and the CPA and to argue that the CPA could not be relied upon to impact the tort regime. However, in a similar vein, waivers that extend beyond the permitted statutory parameters of the OLA, exceed their contemplated purpose and are therefore defective. The question must therefore turn on whether and how the defect may be cured. Does the whole waiver fall by virtue of its defect or

7 can it be read-down in a way that cures the defect in a minimally intrusive manner? [12] The third dimension to the legal issue relates to the interplay between the plaintiff s two causes of action. Although the plaintiff s overriding objective is to use the CPA protections to vitiate an OLA waiver, the court cannot ignore the reality that the plaintiff has advanced two separate and distinct theories of liability, one in negligence and the other in contract. The OLA protections pertain to the plaintiff s negligence claim. The CPA protections pertain to the plaintiff s breach of warranty claim. Both of these are excluded by the defendant s waiver; however, only the CPA includes a provision, at section 7(1), saving its protections from waiver. There is nothing in the CPA that allows it to intrude into waivers that are unrelated to the CPA protections. Section 7(1) is focused on consumers substantive and procedural protections under the CPA. This is not a case of applying specific over general legislation. Each statutory regime is very specific to the purpose and protections it purports to offer. [13] In light of these overriding observations, and for the reasons that follow, I conclude that a modern interpretation of the OLA and the CPA that would allow for a fair and just result must begin with the recognition that section 7(1) of the CPA vitiates those parts of the defendant s waiver that relate to the procedural and substantial rights protected by the CPA. Section 7(1) however

8 cannot be used to vitiate the defendant s waiver in its entirety. To follow such an approach would be contrary to the objectives and purposes of both statutes. In the face, however, of a defective waiver, the appropriate remedy is to read out the offending portions of the defendant s waiver and allow the balance of the waiver to stand. The most appropriate tool for such a reading-down is to resort to a notional severance of the CPA protections from the defendant s waiver. Such an approach will preserve the waiver s terms that concern an occupier s OLA rights and protections but not at the expense of the consumer s CPA protections. BACKGROUND Agreed Facts [14] The parties do not dispute the following facts. [15] Mr. Schnarr purchased a season ski pass from Blue Mountain s website on April 29, On March 26, 2011, while descending the trail run known as Smart Alec, Mr. Schnarr collided with a piece of debris from a broken ski pole, lost control, struck a tree and sustained injuries and damages. [16] The parties agree that Mr. Schnarr was a consumer and that Blue Mountain was a supplier, as defined by the CPA. They also agree that the Season Pass was a consumer agreement, also as defined by the CPA, and that it was completed in the Province of Ontario.

9 a) The Consumer Agreement [17] To complete the consumer agreement and obtain his Season Pass, Mr. Schnarr was required to execute and agree to a waiver, which he did online. The waiver specifically barred Mr. Schnarr from pursuing any legal action against Blue Mountain. It begins with a Heading on a yellow and red box which says: [18] RELEASE OF LIABILITY AGREEMENT, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMINITY AGREEMENT BY AGREEING TO THE TERMS OF THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE PLEASE READ CAREFULLY The waiver goes on to state: RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT In consideration of the SKI AREA OWNERS AND OPERATORS accepting my application for a season pass and Terrain Park pass (if applicable) and permitting my use of its lifts, runs and trials, freestyle terrain, race courses, restaurants, parking and other facilities (hereinafter referred to as the Facilities ), I hereby agree as follows: 1. TO WAIVE ANY AND ALL CLAIMS that I have or may have in the future against the SKI AREA OWNERS AND OPERATORS and Blue Mountain Ski Club (1940)Inc., and the Terrain park sponsor and its affiliates and their respective directors, officers, employees, agents, representatives, successors and assigns (all of whom are hereafter collectively referred to as THE RELEASEES ), and TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my use of or my presence on the Facilities or travel beyond the ski area boundary, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT, ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF SKIING AND SNOWBOARDING REFERRED TO ABOVE; The Present Action [19] Mr. Schnarr commenced an action against Blue Mountain on October 13, Framed as a tort claim, Mr. Schnarr pleaded that he sustained

10 injuries as a direct result of the Defendant s negligence, breach of Occupiers Liability Act and the negligence of its servants, agents and employees. [20] The statement of claim was amended on January 4, 2016 to plead breach of deemed warranty pursuant to terms of the CPA. Mr. Schnarr pleaded that although the defendant warranted that it would provide services of a reasonably acceptable quality, it failed to do so. [21] Certain additional facts were pleaded that characterized the defendant as a supplier of a service, these included the fact that the defendant sold and the plaintiff purchased a seasons pass to the Blue Mountain Ski Resort, that the said pass was a consumer agreement and that the defendant as a supplier of services warranted that the services to be provided would be of a reasonably acceptable quality. The plaintiff relied on the same particulars he pleaded in support of his negligence claim to ground his added claim for the breach of the deemed warranty. He did not plead any additional facts specifically relating to the features of a reasonably acceptable quality of service. [22] The trial was originally scheduled to proceed in January The amendment of the pleading gave rise to a novel question of law concerning the applicability of the CPA to ski hill operators and skiers and, if applicable, its interplay with the provisions of the OLA. In my endorsement of January 15, 2016, 2016 ONSC 474, I concluded that it would be appropriate to proceed by way of a

11 Rule 21 motion, and specifically pursuant to Rule 21.01(1)(a), for the determination, before trial, of a question of law raised by the pleading. [23] The plaintiff asks this court to conclude that section 7(1) of the CPA, which disallows any waiver of liability for rights protected under that statute, operates to vitiate Blue Mountain s waiver in its entirety with the further result that the plaintiff may restore his full rights to sue and to claim damages in negligence for the injuries that he suffered. POSITION OF THE PARTIES i. Mr. Schnarr s Position [24] There are three essential components to the plaintiff s submission: 1. The defendant s waiver releases the defendant from liability, for any cause whatsoever, including negligence, breach of contract or breach of any statutory or other duty of care ; 2. The defendant cannot obtain a waiver of its obligations under the CPA to provide services of a reasonably acceptable quality ; and 3. Since the defendant s waiver releases the defendant from its obligations under the CPA, contrary to s.7 (1), the waiver is flawed and therefore, the entire waiver is void. [25] Mindful of the longstanding and established law on the validity and application of waivers in the content of negligence claims and the defenses available to occupiers pursuant to the OLA, the plaintiff put before the court a detailed submission on how the interplay between the requirements of the OLA

12 and the CPA would operate to allow the court to come to the proposed conclusion. [26] Counsel invited the court to interpret the body of law concerning waivers pursuant to the OLA as narrowly as possible and to eliminate the protection from liability for those occupiers who present in the market with the additional character of a supplier. He urged the court to differentiate between occupiers who own land and who require the protection from liability for guests and trespassers who might cross onto their lands, and occupiers who sell a service and take on the additional character of a supplier of services. Counsel argued that in the latter instance, suppliers use their land to operate a business, supply a service, enter into consumer agreements, and earn a profit. In light of those facts, they should not be permitted to evade their obligations under the CPA by shielding behind an OLA waiver. [27] The plaintiff went on to argue that to uphold the defendant s waiver in this case would contravene the CPA and its express disallowance of waivers. The defendant, as a supplier of services should be bound by the same requirements of the CPA as any other supplier who would not have the benefit of an OLA waiver. [28] In support of that submission, counsel reviewed the legislative and common law history leading up to the passing of the OLA and the CPA.

13 Specifically with respect to the OLA, he submitted that this legislation was intended to clarify a land owner s duty of care to an individual who enters its premises, whether as a guest or as a trespasser. The legislation was never intended to engage with the protections to be afforded to consumers. In contrast to the OLA, the CPA was intended to protect consumers from unscrupulous suppliers. There was never any intention for the CPA to intrude on the whole negligence regime and the rights and protections of occupiers. [29] As between the requirements of the two statutes, the plaintiff submitted that the OLA and the CPA were not contradictory or in direct conflict with each other; each has a unique and distinct purpose and intent. The OLA concerns the protection and liability of occupiers. The CPA concerns the protection of consumers. The plaintiff concluded that the relevant sections in each act are neither contradictory nor in direct conflict, given the respective legislative purposes and intent. [30] Relying on the Supreme Court of Canada in Quebec Inc. v. Quebec (Regie des permis d alcool), [1996] 3 S.C.R. 919, at para. 160, the plaintiff recognized that when considering the interplay between two distinct provincial statutes, one provision in a statute could not simply override a provision in another statute; rather the court would be required to take a modern approach to statutory interpretation. In keeping with such an approach, if a party

14 such as the defendant presented with a dual character, both statutes would be binding on the defendant and its obligations. [31] The plaintiff also recognized that in the event of a conflict, the two statutes would have to be interpreted in light of one another. Applied to the facts of this case, the plaintiff submitted that the court would be required to determine two distinct questions: a) whether the defendant acted reasonably to keep persons reasonably safe while on its premises, in accordance with the requirements of the OLA; and b) whether it provided services of a reasonably acceptable quality in accordance with the requirements of the CPA. [32] According to the plaintiff, the proposed approach would allow for a fair and just outcome. It would not result in any unfairness to the defendant because the defendant would be afforded the opportunity to advance a full defense and to prove that it met the standard of reasonableness both as an occupier and a supplier. Conversely, the plaintiff argued that if the defendant s waiver operated to override the plaintiff s consumer protections afforded by the CPA, the defendant s release from liability would result in unfairness and inequity to the plaintiff and by extension to consumers of recreation premises. In such circumstances, consumers would be denied the express consumer protections afforded by the CPA and suppliers would be permitted to circumvent their obligations under the same law.

15 [33] Implicit in the plaintiff s proposed approach was the elimination of the defendant s waiver. Counsel did not expressly explain what would happen to the defendant s waiver or its rights under the OLA. There was no discussion concerning the fairness as it related to the implications of the defendant s loss of its protection under its existing waiver. Instead, the plaintiff asked the court to think about the fairness to the defendant, who would retain the ability to advance full defence in court, as contrasted to the unfairness to the plaintiff who would be precluded from advancing any claim under the CPA if the defendant s waiver were upheld. In short, the defendant would still have his day in court but the plaintiff would not. [34] The plaintiff rejected the suggestion that the rights that he might have pursuant to the CPA s deemed warranty could be preserved by way of a reading down of the defendant s waiver. Counsel argued that the wording of the waiver was so broad that the deemed warranty anticipated by the CPA could not be notionally severed or blue-lined. Any kind of reading down or severance of the waiver would change the terms of the contract and result in a new contract that neither of the parties intended to create. In the plaintiff s view, the defendant intended to create an all-encompassing waiver to prevent litigation for all risks associated with the skiing on their ski hills and due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care. The defendant should therefore not be permitted to vary the agreement

16 to terms that neither party intended. Instead, the whole defective waiver should fall. [35] Finally, the plaintiff s overall submissions were anchored on the policy view that it would be in the public interest to limit and restrict the use of waivers of liability to protect consumers and to promote fairness in the marketplace. Recognizing that the issue before this court was novel, counsel did not disagree that by asking the court to read the requirements of the OLA very narrowly and by resurrecting issues concerning the parties balance of power, he was effectively inviting this court to revisit the well-established body of law that governs the use and application of, and reliance on, waivers in tort claims. He suggested that the intersection between the OLA and CPA on the subject of waivers opened the door to such a full-scale review of the jurisprudence and encouraged this court to walk through it and void the defendant s waiver. Counsel also agreed that the striking of Blue Mountain s waiver would have industry-wide implications on the use and application of waivers generally. ii. Blue Mountain [36] Blue Mountain disagreed with the proposition that s.7(1) of the CPA could operate to vitiate the waiver that Mr. Schnarr signed and expressly rejected the suggestion that the plaintiff could rely on the provisions of the CPA to avoid the application of Blue Mountain s waiver altogether.

17 [37] The defendant submitted that the courts in Canada have accepted waivers as an appropriate way for occupiers to avoid liability for accidents and injuries. It highlighted the OLA s express permission for occupiers to use exculpatory waivers, provided reasonable efforts are made to bring the waiver to the attention of people accessing the premises. [38] In the defendant s view, at no time was there ever a legislative intention for the provisions of the CPA to intrude into the tort regime in Ontario and the protections afforded to occupiers. Counsel invited the court to take a narrow view of the CPA and limit its application to the protection of consumers exposed to fraudsters and unscrupulous operators. Counsel relied on comments in the Legislature, as recorded by Hansard, to support this particular submission. [39] Apart from a narrow interpretation of the legislative requirements of the CPA, Blue Mountain s counsel submitted that the waiver did not run afoul of the sections of the CPA and did not violate any CPA procedural or substantive rights afforded to Mr. Schnarr; the plaintiff was not precluded from bringing his claim before the courts. Speaking generally about waivers permitted by the statutory requirements of the OLA, the defendant further submitted that a waiver is a binding contract. In this instance, the plaintiff agreed to the particular waiver in question. It would therefore be contrary to the law of contract to allow the plaintiff to rely on the statutory terms of the CPA to avoid the waiver which he

18 knowingly agreed to when he purchased his 2010/11 seasonal pass to the Blue Mountain Ski Resort. [40] Turning specifically to the waiver at issue, the defendant disputed the suggestion that its waiver even breached section 9(1) of the CPA because there is nothing in its waiver that speaks to quality of service. In its factum, the defendant noted: [T]here is nothing in the waiver that attempts to violate or deviate from section 9(1). The waiver in question is silent on issue relating to the quality of services to be provided and there is no term, condition or provision within it that purports to alter the applicable standard of care or the required quality level of services. [41] The defendant also challenged the plaintiff s suggestion that if the waiver were to be upheld, the plaintiff would be precluded from pursuing any cause of action. Counsel submitted that there was nothing in the waiver to act as a barrier to Mr. Schnarr s ability to commence an action for damages. What the waiver offered to the defendant was a waiver of liability and therefore a potential defense. Consumers could pursue a claim if they could satisfy the court that occupiers/suppliers failed to make reasonable efforts to bring waivers to their attention. If they succeeded on that argument, they could continue with their claim. [42] Counsel also submitted that the terms of the CPA and the implications on the defendant s waiver should be interpreted in a way that would

19 preserve an occupier/supplier s right to a defense of reasonable notice. In this regard the defendant noted that the court should also take into account the defendant s clear intention to limit the plaintiff s right to sue the defendant for injuries that may be sustained while using its facilities, and the plaintiff s acceptance and understanding that he was relinquishing his right to sue for any injuries he sustained while on the defendant s premises. The common intention of the parties is evident on the face of the waiver and the enforcement of the waiver in its entirety would be consistent with the basic freedom of contract principles. On the facts of this case, the plaintiff had notice of the waiver and accepted it. [43] The defendant also submitted that any waiver prohibition under the CPA, if the court were to conclude that such existed, would have to be assessed in light of the express permission for waivers of liability given to operators pursuant to the OLA. Relying on the principle of generalia specialibus non derogant, counsel submitted that the CPA s general provisions for all consumer agreements would have to give way to the OLA s specific provisions. [44] In its analysis of this issue counsel suggested that when section 9(1) of the CPA is examined in light of the obligations under the OLA, the section is entirely redundant because s.3(1) of the OLA requires the occupier to see that persons on the occupier s premises are reasonably safe. The defendant relied on

20 this observation to argue that this was one more reason its waiver could not be said to be in violation of the requirements of the CPA. [45] In keeping with the principles that underlie the validity of a waiver and the common law protections that would be available to the plaintiff, the defendant also submitted that its waiver was not contrary to public policy and that it would be fair and appropriate for the court to exercise its equitable discretion to uphold the defendant s waiver, even if the court concluded that the waiver violated the requirements of the CPA. [46] On the issue of severance, the defendant submitted that there was no need to resort to such a remedy because the defendant s intention behind its waiver was focused on limiting a patron s right to sue the defendant for any injury that might be sustained while on its premises and facilities. Counsel suggested that Blue Mountain was never focused on the requirements of the CPA and reiterated the view that there was nothing in the language contained in the waiver to suggest that it was ever their intention to intrude into the subject of consumer rights and protections. Counsel reiterated the view that when considering the scope of the CPA, it should be read narrowly to apply only to the protection of consumers from fraudsters and scam artists as those were the legislative intentions behind the passing of the CPA. In contrast to such situations, properly

21 executed consumer agreements, with full disclosure from the supplier, should be upheld in their entirety and should not be caught by the ambit of the CPA terms. [47] Counsel for the defendant also raised concerns over the implications of a finding that a service fell below the standard of a reasonably acceptable quality. He questioned whether the court could even engage in a full consideration of the implications of a CPA warranty on a claim, given the absence of any submissions on the standard of care that is associated with the deemed warranty. This concern, the defendant suggested, was relevant to understanding the scope of the CPA deemed warranty and its implications and impact on the OLA regime. If a breach of the deemed warranty were to result in an injury, the consumer could to seek damages against the supplier pursuant to the CPA, where under the OLA he would not. Counsel submitted that the effect of such an overlap would amount to a back door access to a damages claim for the injured party and exposure to liability for the occupier. This would begin to undermine the OLA regime. Such an outcome would be contrary to the modern objectives of statutory interpretation and would result in an unjust and unfair outcome. [48] That said, the defendant agreed that if the Court were to conclude that the language in the waiver offends the statutory requirements of the CPA, but is not otherwise objectionable, the Court could resort to severance to cure the

22 waiver s defect. Counsel referred to William E. Thomson Associates Inc. v. Carpenter (1989), 69 O.R. (2d) 545, at page 8, and Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, [2004] 1 S.C.R. 249, at para. 24, and identified the four factors that must be considered by the court to determine whether severance should be applied. He concluded that the court could exercise its discretion and apply the remedy of severance to cure the offending aspects of the waiver and therefore preserve Blue Mountain s statutory rights under the OLA. ANALYSIS [49] There can be little doubt that the interplay between the protections afforded to occupiers pursuant to the OLA and the protections afforded to consumers pursuant to the CPA, especially as both relate to the use and application of waivers of liability, is a novel legal issue. What complicated matters even further was the plaintiff s attempt to use the CPA s disallowance of waivers in the context of its protections, as a sword to strike out the defendant s entire waiver of liability. [50] It is crucial to highlight right at the outset that although the plaintiff s legal argument was cast in terms of the protection of consumer rights, the obligations of suppliers of services, and the underlying fairness and associated

23 implications of being permitted to pursue claims under the CPA, the plaintiff s real objective was not limited to preserving the plaintiff s CPA rights. Rather, the plaintiff tried to thread his negligence claim through a separate cause of action founded on the CPA s deemed warranty to then ground his legal argument that the defendant s waiver be struck in its entirety. [51] This strategy was evident in the way the plaintiff pleaded his CPA claim. Even though a breach of warranty under the CPA is a separate cause of action, the plaintiff grounded his damages for breach of warranty on the same damages he pleaded in support of his tort claim in tort law and negligence principles. In effect, the plaintiff dressed up the tort claim as a breach of warranty claim to get at the striking out of the defendant s waiver. This strategy explains the plaintiff s resistance to any suggestion that the defendant s waiver might be cured if it were read-down to segregate the CPA claim from the balance of the claim. [52] If the plaintiff were to persuade the court that the CPA could be used to entirely vitiate the defendant s waiver, the plaintiff would acquire a clear path to a full trial of the negligence claim and the defendant would have to advance a full defence, where otherwise that defence would be limited to the subject of adequate notice of the waiver to the plaintiff.

24 [53] It is also important to note at the outset that the positions of both parties contained internal inconsistencies that undermined their respective positions. [54] Beginning with the plaintiff, the suggestion that the two acts could co-exist, that there was no conflict between them as that related to the treatment of waivers, and that resort to principles of fairness would allow for the most harmonious co-existence of the two statutes, was misleading. In the guise of fairness, the plaintiff obscured the concern that his approach would effectively eliminate defendant s statutory protections in one sweep. The plaintiff did not offer any explanation as to what would happen to the defendant s right to rely on the OLA protections. The plaintiff was only focused on the unfairness of waivers generally. But the court cannot unilaterally read-out statutory requirements just because the plaintiff would like to put the defendant through a full defence. Such a dramatic change would be for the Legislature to address. [55] The plaintiff s proposal was especially troubling because counsel expressly recognized that statutory interpretation principles do not permit the overriding of one provision in a provincial statute by another provision found in another provincial statute, but then put forward an approach that did just that. The disappearance of the defendant s waiver was cloaked in principles of

25 fairness and took away from the analysis the crux of the problem: what about the defendant s waiver? [56] A second problem with the plaintiff s overall analysis rested with an apparent confusion over what protections the CPA could actually offer. The deemed warranty in section 9(1) of the CPA concerns the breach of a warranty. Such a breach can be construed as a specific type of breach of contract. However, section 9(1) does not engage or relate to a tort claim. The scope of section 7(1) of the CPA is only focused on the disallowance of waivers in relation to the protections offered by the CPA. The plaintiff was either oblivious to this very material distinction, or chose to ignore it. [57] The apparent confusion over the scope of the protections that the CPA might offer extended and caused a third flaw in the plaintiff s approach, namely a conflation of the two distinct causes of action of the plaintiff s claim. On the face of the plaintiff s amended pleading the plaintiff appears to be advance there are two theories of liability against the defendant. As separate causes of action, each is connected to separate damages. The pleading holds out the prospect that the plaintiff could be compensated in contract and in tort. In his attempt to extend the CPA protection into tort territory, the plaintiff then blurred the two theories. The blurring was most evident in the way he equated the particulars of the breach of warranty to the particulars of the negligence

26 allegations. The plaintiff did not plead any particulars that would go to the consideration of the standard of care for the delivery of a service of a reasonably acceptable quality. He relied on the particulars of associated with the tort claim. While there can be little doubt that the basic factual foundation to the claim may be the same, the separate causes of action will require the trier of fact to make specific findings of fact for each cause of action. [58] This blurring is a significant flaw in the plaintiff s overall approach because it also opened him up to the defendant s criticism and concern that the plaintiff is really trying to use the protections of the CPA as back door to a liability claim against the defendant that would not otherwise be available. [59] Turning to the defendant s position before the court, here too the court was faced with certain internal inconsistencies, some of which mirrored those of the plaintiff. [60] The first difficulty rested with the way the defendant described its waiver and the intentions behind it. The defendant submitted that the clear intention of the parties was to limit the plaintiff s right to sue Blue Mountain for injuries that may be sustained while using its facilities. The defendant also argued that the waiver made no representations whatsoever concerning the quality of services and made no attempt to alter the applicable standard of care required or the required quality of provided services. On that basis, it argued that

27 its waiver did not offend section 9(1). The defendant relied on such silence to argue further that there was never any intention to intrude on the protections extended by the CPA and that the waiver had nothing to do with the requirements of the CPA. But the defendant also submitted that the plaintiff willingly gave up all his rights, including those related to the CPA, and should therefore be fully bound by the waiver. This argument raises a number of difficulties. [61] First, although it can be readily accepted that the waiver in broad terms is primarily about a waiver of liability for injuries, it is misleading to suggest that it is only about injuries and has nothing to do with the CPA. The defendant is concerned about injuries, however they occur. If an injury results from a breach of the deemed warranty contemplated by the CPA, then it gives rise to questions of the scope of the waiver and its applicability to CPA claims. To cast the waiver as something that is merely concerned with the waiver of liability for injuries sidesteps the issue of the waiver s breadth, which is the overriding issue before this court. [62] Second, the protection under section 9(1) of the CPA is a deemed warranty. The warranty that a supplier will supply services of a reasonably acceptable quality does not have to appear in any agreement. It is deemed. If the defendant is going to rely on the silence within its waiver as a measure of its own

28 intention, then that measure has to work both ways and extend to the plaintiff s intentions. If the defendant had no intention to derogate or abrogate from its lawful obligations under the CPA, then the defendant cannot very well say that the plaintiff intended to release the defendant from obligations that the defendant never sought to have released. If the defendant says that its waiver has nothing to do with the requirements of the CPA, it cannot at the same time argue that by accepting the defendant s waiver the plaintiff knowingly and freely gave up his rights, including those protected by the CPA. [63] Furthermore, when the defendant speaks of the plaintiff knowingly and freely accepting the terms of a contract, the defendant does not engage with the fundamental aspect of section 7(1) of the CPA which would make any such acceptance irrelevant. Section 7(1) is not concerned with the intentions of the parties. Section 9(4) expressly deals with the issue of contractual intent in relation to the legal treatment and protection of the CPA s deemed warranty. [64] The third difficulty with the defendant s argument rests in the difference between what is said on the face of the waiver and how the defendant describes its intention behind the waiver and says the waiver should be interpreted. Counsel submitted that the waiver is about limiting the plaintiff s right to sue Blue Mountain for injuries that he may sustain while using its facilities. He also submitted that the waiver relates to negligence claims and duty of care

29 obligations. But the face of the waiver reveals something far more comprehensive. Beginning with its heading, there is an unqualified warning that by signing the agreement one will waive the right to sue. More significantly the text of the actual waiver speaks of a comprehensive release of any and all liability for any loss, damage, expense or injury including death as a result of any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupiers Liability Act. While I am prepared to accept that the waiver is focused on the subject of injuries, the waiver s boundaries are not limited to negligence claims. They extend to all types of claims and, in so doing, intrude into the sphere of CPA protections. [65] A further confusing aspect in the defendant s position is the argument that the court should rely on its equitable discretion to uphold the waiver even if the waiver is held to violate the CPA. This submission, especially given the comprehensive language in the defendant s waiver, amounts to a request that the defendant be allowed to enforce its waiver of liability for all claims, including those that might otherwise be pursued under the CPA. The defendant did not really expand on or identify the equitable principles which the court should use to, in effect, ignore the modern principles of statutory interpretation. In reality, much like the plaintiff argued over the unfairness of waivers to users of recreation premises, the defendant was really getting at the

30 fairness and the need to preserve the OLA regime at all costs, even if that meant ignoring the requirements of the CPA. Stated differently, what the defendant was really asking this court to do was have the OLA protections override the CPA protections. Framing this objective as an equitable remedy was confusing and unhelpful. [66] A final area of concern that ought to be addressed at the front end of my analysis relates to the defendant s concern that claims arising out of a breach of warranty pursuant to the CPA could become a back-door to the litigation of claims from which, absent the CPA, occupiers such as the defendant would be protected from liability. The source of this concern rests in part with the way the plaintiff conflated the two causes of action in his claim and the blurring of the particulars as they relate to each cause, which I discussed above. The second source of this concern rests in the prospect that if premises fell below a reasonably acceptable quality standard as contemplated by the CPA, and a user were then injured and sought to advance a claim for damages, that claim would be allowed to proceed according to section 7(1) of the CPA, where absent that statute the occupier would be able to rely on its waiver for its primary defence. [67] While I understand the reasons for the defendant s concerns, they do not form a basis for this court to override the protections offered by the CPA. For starters, the proposed concern invites this court to speculate on a

31 hypothetical situation that could arise at some point in the future. There are no facts before me to permit me to engage in any meaningful consideration of the likelihood of such a problem. Nor were there any submissions concerning the measures and the standard of care to be met for a ski hill to be deemed to be of a reasonably acceptable quality. In such circumstances, it would be imprudent to make any comment on what a ski hill of a reasonably acceptable quality would look like and what the standard of care might be. That may well be an issue for a future day. [68] Most significantly, the defendant s concerns echoes to a large degree the plaintiff s conflation of the plaintiff s causes of action, and the implications of each cause of action generally and on each other. At the risk of some repetition, it is necessary to set the proper context for the analysis to follow. [69] As already noted above, the plaintiff has advanced two separate causes of action and therefore two separate theories of liability. The first theory is pleaded in tort. The second theory is pleaded in contract, as a breach of warranty claim. Each theory stands separate and apart from the other. To be proven, each theory will require separate and discreet findings of fact. In other words, a cause of action grounded in the CPA deemed warranty stands separate and apart from a cause of action in tort. A breach of warranty is in the nature of a breach of

32 contract. If the breach of warranty is established, the remedy will be contractual and damages could become compensable as a consequence of that breach. The nature and scope of the damages may be framed by the parameters of the CPA, but there may be other common law measures. This was not something that was explored in any detail by the parties and it would be imprudent to say anything more. My reference is limited to outlining the outer contours of what the consideration of any breach of warranty claim would likely entail. [70] It is also important to recognize that the deemed warranty in section 9(1) of the CPA has nothing to do with occupier s rights under the OLA. There is therefore nothing in the CPA to suggest that a finding of a breach of warranty could be used to either give shape to or intrude into a tort claim. Nor could such a finding operate to void a waiver of liability in negligence and require the occupier to defend a claim that it would not otherwise have to defend under the terms of the OLA. In other words, a finding of a breach of warranty could not open a back door to enable the litigation of what would amount to a tort claim. [71] As will be explained more fully below, the CPA was never intended to intrude into the OLA domain. It would truly be a novel approach to the fundamentals of pleadings to allow a tort claim to be threaded through the CPA claim through a kind of back door, as suggested by the defendant, when such a

33 claim could not, by operation of the OLA waiver, be pursued through the frontdoor. [72] Having regard for the various difficulties of both the plaintiff and the defendant, their respective objectives on this motion come down to the following. The plaintiff would like the court to apply section 7(1) of the CPA to vitiate the defendant s comprehensive waiver in its entirety and therefore to pave the way for the plaintiff to pursue both of its causes of action. The defendant would like to the court to find that the provisions of the CPA, and in particular section 7(1), have no application to the defendant s common law and statutory rights to rely on exculpatory waivers, with the result that its waiver in this case ought to be upheld in its entirety. [73] To engage with these two fundamental positions, the court must consider the following issues: a) What are the relevant statutory provisions under the OLA and the CPA? b) How are the specific sections of the OLA and the CPA to be interpreted and can they be read harmoniously to produce a just a fair meaning? c) Does the Defendant s waiver offend the requirements of the CPA? d) Can s.7(1) of the CPA be relied upon to strike the defendant s waiver entirely? e) If there are flaws in the defendant s waiver, can they be cured?

34 a) What are the relevant statutory provisions under the OLA and the CPA? i. OLA Provisions [74] The relevant sections of the OLA that are engage by the overriding issue before this court are the following: Definitions 1. In this Act, occupier includes, (a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; ( occupant ) premises means lands and structures, or either of them, and includes, (a) water, (b) ships and vessels, (c) trailers and portable structures designed or used for residence, business or shelter, (d) trains, railway cars, vehicles and aircraft, except while in operation. ( lieux ) R.S.O. 1990, c. O.2, s. 1. Common law duty of care superseded 2. Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. R.S.O. 1990, c. O.2, s. 2. Occupier s duty 3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. Idem

35 (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises. Idem (3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier s duty. R.S.O. 1990, c. O.2, s. 3. Risks willingly assumed 4. (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. Criminal activity (2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1). Trespass and permitted recreational activity (3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1), (a) where the entry is prohibited under the Trespass to Property Act; (b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or (b) where the entry is for the purpose of a recreational activity and, (i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and (ii) the person is not being provided with living accommodation by the occupier. Same (3.1) For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of subclause (3) (c) (i): 1. A fee charged for a purpose incidental to the entry or activity, such as for parking. 2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency. 2016, c. 8, Sched. 3, s. 1 (1). Premises referred to in subs. (3) (4) The premises referred to in subsection (3) are, (a) a rural premises that is,