When Laws Collide: The Consumer Protection Act vs. The Occupier’s Liability Act
While Skiing is a fun past time, it can also be dangerous. Ski hills, as well as other businesses providing space for physical activity, should recognize potential dangers and often require customers to sign waivers stating they are performing activities at their own risk, and that the business will not be held liable in the event of injury. The laws governing these waivers were recently the subject of review by the Ontario Court of Appeal, where the court had to determine what to do when two pieces of legislation were in conflict with one another.
The facts of the case arise from two people who were skiing at separate Ontario ski hills. Both skiers purchased their lift tickets from the hills and signed waivers of liability before heading to ski. Both skiers were ultimately injured, at which point they sued for damages.
A conflict of legislation
Two pieces of legislation were found to be in conflict with one another. The first was Section 7 the province’s Consumer Protection Act (the “CPA”). The CPA was enacted in 2002 with the purpose of modernizing consumer protection law, which had previously been covered by nine different acts. Section 7 of the CPA states “the substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.” Meanwhile, Section 9 of the CPA states
9(1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.
(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.
(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.
As far as it relates to this case, the CPA would seem to prevent the ski hills from waiving their liability.
However, the Occupiers’ Liability Act (the “OLA”), which came into force in 1980, has two sections relevant to the case at hand.
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.
(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.
(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.
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.
In summary, the conflict arose from the OLA requiring owners of property to take reasonable care in keeping people safe, while exempting them from the duty when people willingly take risks. Meanwhile, the CPA states that no other act may waive the procedural rights it provides to consumers.
The court’s analysis
The court determined there was a clear and direct conflict between the OLA and the CPA. As the court wrote, “The CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPA prohibits.”
With conflict established, the court then turned to how to resolve it. First, the court looked at what is covered by the CPA, and determined it is meant to cover a wide range of consumer-business transactions, while the OLA was designed to apply directly to activities on premises. The purpose of the OLA would thus be undermined if the CPA were able to introduce another layer of contractual duty. Furthermore, the OLA had recently been amended, and the court found it unlikely that lawmakers would amend a law if it intended the law to have no force.
As a result, the court concluded that the OLA carves out exemptions for some transactions normally covered by the CLA.
It is important to talk to an experienced lawyer if you find yourself hurt on the premise of a ski hill or any other business, such as a grocery store or bar. Contact the lawyers at Derfel Injury Law if you have been injured in an accident. Our team of qualified, experienced personal injury lawyers can help assist in your claims for damages while exploring every potential avenue for compensation. Please call us at 416-847-3580 or reach us online to talk today.