Cases could have impact on recreational facilities

“This is a novel case,” says Suhuyini Abudulai, partner at Cassels Brock & Blackwell LLP in Toronto. “It touches on a wide variety of industries and there is not a lot of guidance [on the scope of the CPA],” says Abudulai, whose practice focuses on compliance with consumer protection laws.

The two cases before the Court of Appeal both stem from personal injuries suffered by the plaintiffs at ski facilities.

The lift tickets purchased included waivers of liability as permitted under the OLA.

Superior Court Justice Ria Tzimas in Schnarr and Justice John McCarthy in Woodhouse accepted the arguments of plaintiffs that the waivers did not exempt the ski facilities from the statutory obligation under the consumer legislation to provide services of a “reasonable acceptable quality.”

“The concerns to regulate e-commerce and to protect consumers may have been the triggering concern to introduce the legislation, but all consumers are entitled to the benefits of the protections afforded by the CPA and all suppliers are bound by the obligations defined by the CPA,” wrote Tzimas in her decision.

“The OLA is certainly not assigned any paramount status over consumer protection legislation,” wrote McCarthy in his ruling.

The appellants are arguing that the Superior Court rulings incorrectly expanded the scope of the CPA and may have broad consequences if allowed to stand.

“This case has significant implications for both the continued enjoyment of recreational activities by Ontario’s citizens and the recreation industry generally,” said lawyer John Olah in written submissions on behalf of Blue Mountain.

“It has particular significance to the ski industry and for any sports activities, which, have by the nature of the sport, an inherent element of risk,” wrote Olah, a partner at Beard Winter LLP in Toronto. 

“A contract to use a ski resort’s facility is qualitatively very different than a contract to repair a motor vehicle and other goods,” he also wrote.

The consumer protection statute applies to agreements such as for time shares or credit cards and was not meant to govern activities such as downhill skiing, stated Olah in written submissions.

“Weather conditions, the skier’s speed, visibility, trajectory, suitability for the trail, the state of the skier’s equipment that she or he brings to the trail and the actions of other skiers are beyond the ski resort’s control. The legislature never intended these sporting activities to be caught up in the CPA,” wrote Olah.

The Court of Appeal will have to resolve the potential conflict between the two statutes in circumstances such as these, notes Abudulai.

“Traditionally, the CPA is about consumer agreements. When it applies, you cannot waive your rights. Under the OLA, you can waive them,” she explains.

Among the interveners in the appeal are three Toronto-area conservation regions. The OLA holds non-profit recreation clubs to a lower standard of care in terms of liability.

The conservation regions are arguing that the consumer legislation should not apply to the non-profit groups or, if it does, there should still be the same standard of care required as currently exists for these organizations.

Zohar Levy, co-counsel for the conservation regions, notes that these are organizations without significant budgets to defend potential lawsuits.

“The goal of the [occupiers’] legislation was to make sure certain classes of landowners were encouraged to allow access to the public,” says Levy, a lawyer at Fasken Martineau DuMoulin LLP in Toronto.

The application of the two statutes on recreational trails operated by non-profit organizations was not addressed directly at the Superior Court level, which is why the groups sought to intervene.

“The courts below used broad language. It is very expansive,” says Levy.

One of the interveners, the Canadian Defence Lawyers, suggests that the occupiers’ legislation has been effective for 25 years in adjudicating similar types of lawsuits involving sporting activities that have an element of risk.

“Without the benefit of the jurisprudence currently in place, it will be difficult for defence lawyers to properly advise their clients in circumstances where waivers are involved,” wrote Jim Tomlinson, partner at McCague Borlack LLP in Toronto.

In response, lawyers representing the plaintiffs in the litigation argue that there is not a conflict between the two statutes.

“The plaintiff is both a consumer under the CPA and a person entering onto the premises under the OLA. The defendant is both a supplier of services under the CPA and an occupier of premises under the OLA,” wrote Paul Pape and Shantona Chaudhury of Pape Barristers in Toronto, who are acting for Schnarr at the Court of Appeal.

“The consumer’s claim in breach of the deemed warranty under the CPA and his claim in tort/occupier’s liability under the OLA are separate and concurrent causes of action. Pursuant to the law set out by the Supreme Court of Canada, a claim in contract may proceed although a claim in tort based on the same facts may be barred, or vice-versa.

“There is no absurdity or inequity in this; to the contrary, it is a well established principle of law,” they wrote.

“Where a consumer agreement exists, the legislature has provided another cause of action that exists independently of the OLA,” they explained in their written submissions.

The Ministry of Government and Consumer Services is arguing that, under the consumer protection legislation, an occupier is not permitted to restrict its liability in providing goods and services that are of an unreasonable quality.

As well, the OPA does not “supersede” the CPA, stated lawyers for the province in its written submissions.

The Ontario Trial Lawyers Association supports the position of the plaintiffs in the appeal and states that the two statutes can both apply without “absurd” results.

“Occupiers licensing lands for consumer’s activities cannot abdicate all responsibility for lands they wish to license by excluding all liability even for their own conduct,” wrote Derek Nicholson on behalf of the OTLA.

“These protections are designed to balance the interest of the consumer against corporations where there is a practical imbalance of negotiating power,” stated Nicholson, a partner at Beament Hebert Nicholson LLP in Ottawa.

The Tourism Industry Association of Ontario, the Ontario Federation of Snowmobile Clubs and the Ontario Cycling Association are also interveners.

The Court of Appeal is not expected to release its decision for several weeks.