Court ruling on waivers doesn’t bode well for public safety

An Ontario Court of Appeal decision upholding a pair of ski resort waivers is a boon for insurers and a bust for public safety, says Toronto critical injury lawyer John McLeish.

In the case, a three-judge panel of the province’s top court overturned two lower court judgments that found provisions of Ontario’s Consumer Protection Act (CPA) could be used to void waivers designed to release resort owners from liability under the Occupiers Liability Act (OLA).

The appeal court ruled that ss. 7 and 9 of the CPA “fundamentally undermine” s. 3 of the OLA, before going on to decide that when there is a conflict, the more specific provisions of the OLA trumped the general provisions in the CPA.

“I would conclude that ss. 7 and 9 of the CPA do not operate to void otherwise valid waivers executed under s. 3(3) of the OLA,” added Justice Ian Nordheimer, writing for the unanimous panel.

‘Real shame’

“It’s a real shame because it makes the world a less safe place when waivers like these, which take away rights of individuals, are enforced. Occupiers should not be allowed to avoid the consequences of negligence,” says McLeish, partner with McLeish Orlando LLP. “These places are insured and pay premiums to cover claims like these, so the only people who benefit from this case are the insurers.

“It’s particularly concerning when people have suffered serious injuries, because they are among our most vulnerable members of society,” he adds.

McLeish says everyone benefits when waiver defences are dismissed because when claims are paid and insurance premiums go up, it provides a natural incentive for businesses to improve safety at their facilities.

“Insurers will increase premiums of companies who are not good corporate citizens, when it comes to safety. Or insurers will not provide coverage to businesses that don’t improve their behaviour,” he explains.

McLeish says he preferred the approach of the trial judges in both cases, which were heard together at the province’s top court.

According to the appeal court decision, one of the plaintiffs was injured after losing control when he hit a piece of debris on a ski hill. The resort defended the claim on the basis of a waiver he signed when purchasing a season’s pass, but a Superior Court judge ruled the release only applied to the negligence portion of his claim.

The lower court judge allowed his additional claim that the resort owners breached their obligation under the CPA to provide services of a “reasonable acceptable quality” to continue.

Rope tow

In the other case, a woman was injured at a separate ski resort while using a rope tow. Her liability waiver was activated when she bought a lift ticket as part of a beginner skier package. This time another trial judge allowed her negligence claim to continue after finding the waiver was presumptively void due to the application of the CPA.

But the appeal court overturned the findings after Nordheimer noted the clear conflict between the laws.

“On the one hand, [the ski resorts] have lawful waivers that would exclude their liability for the injuries suffered by [the plaintiffs], and yet they are told that those waivers are of no effect by virtue of the CPA,” he wrote.

“It is of no practical comfort to [the resorts] to be told that their waivers protect them from the negligence claims but not from the warranty claims. The result for the ski resorts is the same. They will be held liable for something that they thought they had lawfully protected themselves against. In my view, such a result is both a direct contradiction and an absurd result,” Nordheimer said.

He found that the exhaustiveness of the OLA regime demanded that the conflict be resolved by the OLA provisions superseding those in the CPA, and ordered both plaintiffs were bound by the waivers they singed.

“This is so regardless of whether their claims are in tort or for breach of warranty,” Nordehimer added.