Two recently released Superior Court decisions offer distinct
treatments of the same question and impact the longstanding
jurisprudence on exculpatory waivers: Can s. 7(1) of the
Consumer Protection Act 2000, S.O. 2000, c. 30, Sched. A
(the "CPA") operate to nullify the application of
the defendant occupier's release of liability contained in its
waiver signed by the plaintiff?1
Both cases deal with similar facts. The defendants offer skiing
facilities. Both plaintiffs signed a waiver with respect to the use
of each of the defendant's premises. Both plaintiffs sustained
an injury as a result of the use of those premises. The plaintiff
in Schnarr v Blue Mountain Resorts Limited 2017 ONSC 114
("Schnarr") was injured while skiing and the
plaintiff in Woodhouse v Snow Valley 2017 ONSC 222
("Woodhouse") sustained injuries while using the
The theory of liability advanced in each case was based in
negligence under s. 3 of the Occupiers' Liability Act,
R.S.O. 1990, c.O.2 (the "OLA") and contract under s.9(1)
of the CPA with respect to failing to provide services of
reasonable acceptable quality which is a statutory deemed warranty.
The CPA also provides under s. 7(1) that the CPA substantive and
procedural rights apply despite any waiver to the contrary. In both
cases, the defendants sought to rely on a very broadly worded
waiver as a shield from all liability, including liability under
Both defendants drew on excerpts from the Official Report of
Debates of the Ontario Legislative Assembly (Hansard) in support of
the proposition that the legislation was implemented to protect
consumers from fraudsters and scam artists but not ski operators.
The defendant in Woodhouse used this Hansard reference to
argue that the CPA did not apply to the circumstances of the case.
Although the parties in Schnarr agreed that the CPA
applied, the defendant made use of the same reference in asking the
court to read down the CPA. The Courts did not find either of these
arguments to be persuasive.
Notwithstanding the common view that the CPA applied to the
waiver at issue, the Court in each case offered a different
treatment of the novel question of law of whether the CPA
invalidated the defendant's waiver. Ultimately, the Motions
Judge in Schnarr invalidated the defendant's waiver
with respect to the plaintiff's claim under the CPA but
enforced the application of the waiver in regards to the
plaintiff's claim under the OLA. In contrast, the Motions Judge
in Woodhouse did not rule on whether the waiver was
invalid as to do so, in the Judge's reasoning, would have
required evidence, which was not available in the context of the
motion before the court. Although the Court in Woodhouse
held that the offending provisions of the waiver dealing with
release from all liability were "presumptively void", the
Court found that the offending provisions may be saved under s.
93(2) of the CPA which "invites the court to explore the
inequities involved in allowing the consumer not to be bound by the
waiver". The Court in Woodhouse reasoned that absent
definite language in the CPA legislation specifically voiding all
waivers with respect to the provision of quality services found in
consumer agreements, the Court must consider the equities involved
before finally invalidating a waiver. According to the Court in
Woodhouse, the onus is on the defendant to show that it
would be inequitable for the consumer not to be bound by the waiver
and specifically those sections of the waiver which may be rendered
presumptively void under the CPA. In contrast, the Court in
Schnarr explained that previous cases considering the
saving provision dealt with situations where the plaintiff did not
pay despite obtaining the full benefits of the services or goods
rendered. Based on this, the Court in Schnarr found that
the saving provision did not apply to the analysis as the
plaintiff, unlike in previous cases considering this provision, did
not obtain a windfall.
Both decisions have been appealed. Until the Court of Appeal
decides the issue, the decision in Schnarr dictates that
for an occupier that is also considered a "supplier"
under the CPA, the exculpatory waiver, no matter how expansive in
scope, can only be used to disclaim liability under the OLA and not
the CPA. This is especially concerning as the jurisprudence to-date
offers little guidance into the meaning or the standard of care in
relation to the deemed statutory warranty of providing services of
"reasonable acceptable quality".
1 The novel question of law in Schnarr was
decided on a Rule 21 motion for a judicial determination of a
question of law and the same question in Woodhouse was
considered in the context of a Rule 22 motion which is a special
case motion requesting the court's opinion on a question of
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