Edward John Chadderton

Following a jury trial in a motor vehicle accident case, the court addressed three post-trial issues: (1) whether Canadian Emergency Response Benefit (CERB) payments received by the plaintiff should be deducted from the past income loss award; (2) the amount of partial indemnity costs payable; and (3) the amount of assessable disbursements.

The court held that CERB payments were not deductible as they were not paid "in respect of the incident" under the Insurance Act, and the plaintiff faced potential repayment obligations.

The court awarded partial indemnity costs of $327,700.00 (inclusive of HST) and allowed all claimed disbursements of $167,894.62, including expert meeting costs and home modification reports.

This addendum addresses procedural issues arising from the Court of Appeal's March 28, 2018 decision allowing both appeals and a cross-appeal.

The court clarified that: (1) a "no order as to costs" provision can apply to both parties and interveners; (2) conclusions regarding statutory interpretation and waiver applicability should not be reflected in the formal order but only in the reasons; and (3) separate formal orders must be taken out for the merits decision and the costs decision, each bearing the date of its respective release.

This is a costs endorsement following the Court of Appeal's decision allowing both appeals and a cross-appeal in two consolidated ski resort injury cases.

The court set aside the orders of the Superior Court and remitted the matters back for further proceedings.

The primary issue on costs was whether any party should recover their appellate costs.

Blue Mountain Resorts and the respondents argued for no costs award due to the novelty of the legal issues, while Snow Valley sought partial indemnity costs of $25,000.

Two consolidated appeals concerning the enforceability of liability waivers executed by ski resort patrons.

The central issue was whether the Consumer Protection Act (CPA) or the Occupiers' Liability Act (OLA) governs the relationship between ski resorts and patrons who purchased ski tickets and executed waivers as a condition of entry.

The lower courts held that the CPA applied and voided the waivers.

The Court of Appeal held that the OLA and CPA conflict, and that the more specific OLA provisions prevail over the general CPA provisions.

The court allowed the appeals and held that the waivers were valid and enforceable.

The plaintiff brought a special case under Rule 22 to determine the applicability of the Consumer Protection Act, 2002 (CPA) to a ski package transaction and the enforceability of liability waivers.

The court found that the CPA applies broadly to consumer transactions for services, including ski packages, and that waivers purporting to negate the implied warranty of reasonably acceptable quality services are presumptively void under s. 9(3) of the CPA.

While such terms are severable under s. 9(4), the court retains equitable jurisdiction under s. 93(2) to bind the consumer to them, with the onus on the supplier to prove it would be inequitable not to.

The court also determined that the Occupiers Liability Act (OLA) does not supersede the CPA in this context, meaning the occupier is not "free" to restrict liability for services where the CPA applies.