In a recent decision, the Ontario Court of Appeal struck a damaging blow to the province‚Äôs Consumer Protection Act. The three-judge panel ruled in favour of the defendant in Schnarr v. Blue Mountain Resorts Limited, a case involving two skiers who were injured after signing liability waivers. Personal injury lawyers have criticized the decision.
At question in the case was whether provisions included in Ontario‚Äôs Occupiers‚Äô Liability Act (OLA) trumped provisions in the more recent Consumer Protection Act (CPA).
The decision, which personal injury lawyers believe will have implications across the province, essentially affirms that liability waivers are valid and that they are an effective defence against these types of civil actions.
‚ÄúWaivers are designed to explain the risk to the participant and insulate to some degree the facility from being sued because you can‚Äôt have a recreational facility being sued every time everybody gets injured,‚ÄĚ a defence lawyer told Law Times.
Under the OLA, which was adopted in 1980, occupiers ‚Äď in this case Blue Mountain Resorts ‚Äď have the right to obtain waivers that exempt them from injury liability from individuals who use their premises. The act stipulates that occupiers‚Äô duty of care is suspended in respect of ‚Äúrisks willingly assumed by the person who enters on the premises.‚ÄĚ
When the CPA came into force in 2002, it was intended to bolster protections for consumers in the Province of Ontario. It states that suppliers must provide a warranty of quality of service which cannot be waived; the Court of Appeal‚Äôs decision weakens this provision.
‚ÄúThe OLA permits an occupier to obtain a waiver of liability,‚ÄĚ wrote Justice Ian Nordheimer on behalf of the panel. ‚ÄúThe CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPA prohibits.‚ÄĚ
Justice Nordheimer goes on to write that it would be ‚Äúabsurd‚ÄĚ if businesses were held liable for ‚Äúsomething that they though they had lawfully protected themselves against.‚ÄĚ
It is not known whether the plaintiffs will take their case to the Supreme Court. In the meantime, personal injury lawyers will have to operate under more limited consumer protection laws.
If you, a friend, or a member of your family have been injured in an accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our experienced team can help you understand your legal position, assess the viability of your claim, and guide you on your road to recovery.
Image credit: Joe Brusky/Flickr
Latest posts by Greg Neinstein (see all)
First published at https://www.neinstein.com/2018/05/02/personal-injury-lawyers-liability-waivers/