Court of Appeal for Ontario

Date: March 28, 2018

Docket: C63305 and C63351

Judges: Doherty, Brown and Nordheimer JJ.A.

Between

David Schnarr Plaintiff (Respondent)

and

Blue Mountain Resorts Limited Defendant (Appellant)

And Between

Elizabeth Woodhouse Plaintiff (Appellant/Respondent by cross-appeal)

and

Snow Valley Resorts (1987) Ltd. aka Ski Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350 Ontario Ltd. Defendants (Respondents/Appellants by cross-appeal)

Counsel

John A. Olah and Robert A. Betts, for the appellant, Blue Mountain Resorts Limited

Edward Chadderton, Patricia E. Graham, and Jeffrey Belesky, for the respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka Ski Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, and 717350 Ontario Ltd. (collectively, "Snow Valley")

Paul J. Pape, Shantona Chaudhury, and Peter Cho, for the respondent, David Schnarr

Paul J. Pape, Shantona Chaudhury, Marc Lemieux, and Ryan Hurst, for the appellant/respondent by cross-appeal, Elizabeth Woodhouse

Peter Pliszka and Zohar Levy, for the interveners, Conservation Halton, Credit Valley Conservation, and Toronto Region Conservation

Robert Love, Edona Vila, and Samantha Bonanno, for the interveners, The Ontario Federation of Snowmobile Clubs and Ontario Cycling Association

Jim Tomlinson and Garett Harper, for the intervener, Canadian Defence Lawyers

Thomas Curry and Ahmad Mozaffari, for the intervener, Tourism Industry Association of Ontario

Judie Im and Baaba Forson, for the intervener, Minister of Government and Consumer Services

Derek Nicholson, for the intervener, Ontario Trial Lawyers Association

Heard: February 7-8, 2018

On appeal from: the orders of Justice E. Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with reasons reported at 2017 ONSC 114, and of Justice John R. McCarthy of the Superior Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

Nordheimer J.A.:

Introduction

[1] These two appeals were heard together as they raise common issues. In both cases, the plaintiffs were patrons of the defendant ski resorts who purchased ski tickets. In both cases, those patrons executed the ski resorts' waivers of liability as a condition of their tickets. And in both cases, the patrons were injured on the ski resorts' premises. The patrons sued.

[2] On a r. 21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in the case of Mr. Schnarr, the parties agreed that there was a "consumer agreement" (as defined under s. 1 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A ("CPA")) between Mr. Schnarr and Blue Mountain Resorts Limited ("Blue Mountain"). On that basis, Tzimas J. held that Blue Mountain's waiver under s. 3(3) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2 ("OLA") partially offended ss. 7(1) and 9(3) of the CPA. She held that Blue Mountain's waiver, insofar as it purported to waive liability in contract, was void and severed from the consumer agreement. In a similar vein, in the case of Ms. Woodhouse on a r. 22 motion, McCarthy J. held that Snow Valley's waiver was void in respect of both tort and contract claims. However, he held that a court nevertheless had the equitable power to enforce a void waiver in a consumer agreement pursuant to s. 93(2) of the CPA. It is important to note that, aside from the agreed statement of facts submitted by the parties, none of the underlying facts have yet been proven in court.

[3] Blue Mountain and Ms. Woodhouse appeal. Snow Valley cross-appeals. Foremost, these appeals raise the question of whether the CPA or the OLA governs the relationship between the parties. Specifically, the appeals present a case of first impression as to whether ss. 7 and 9 of the CPA vitiate or void an otherwise valid waiver of liability under s. 3 of the OLA, where the party seeking to rely on the waiver is both a "supplier" under the CPA and an "occupier" under the OLA.

[4] In my view, when applied to the instant context, ss. 7 and 9 of the CPA fundamentally undermine the purpose of s. 3 of the OLA. The statutes are irreconcilable and conflict. As such, and as I shall explain below, the more specific provision in the OLA prevails over the general provisions in the CPA.[1] I would therefore allow both Blue Mountain's appeal and Snow Valley's cross-appeal for the reasons that follow. On the separate issue of the application of s. 93(2) of the CPA, I would also allow Ms. Woodhouse's appeal.

Background Facts – Schnarr v. Blue Mountain Resorts Limited

[5] Mr. Schnarr purchased a 2010-2011 season ski pass from Blue Mountain's website on April 29, 2010. As part of his online transaction, Mr. Schnarr executed a Release of Liability Agreement, Waiver of Claims, Assumption of Risk and Indemnity Agreement (the "Blue Mountain waiver").[2]

[6] On March 26, 2011, while skiing down a ski run called "Smart Alec", Mr. Schnarr allegedly collided with a piece of debris from a broken ski pole. He lost control, struck a tree, and sustained injuries.

[7] The Blue Mountain waiver contained a number of provisions purporting to shield Blue Mountain from certain liabilities and preclude Mr. Schnarr from suing. One heading, set out in bold type in a yellow box with a red border, specifically instructed the customer to "PLEASE READ CAREFULLY!" and cautioned Mr. Schnarr that by executing the document, he was giving up certain legal rights.

[8] The waiver specifically provided that in consideration for Blue Mountain accepting his application for a season pass, Mr. Schnarr agreed both to waive any and all claims against the ski area operator and others, and to release them from liability for any damages that he may suffer.

[9] On October 13, 2011, Mr. Schnarr commenced an action in negligence against Blue Mountain. Mr. Schnarr claimed general damages in the sum of $200,000 and special damages in the sum of $100,000.

[10] On January 4, 2016, Mr. Schnarr amended his statement of claim. Under the heading "Applicable Statutes", he claimed for the first time that the season ski pass was a consumer transaction. He also alleged that Blue Mountain had breached the "reasonably acceptable quality" standard under s. 9(1) of the CPA. The particulars of this alleged breach were identical to the alleged breaches of the standard of care in the tort of negligence as advanced in the original statement of claim. In addition, in his amended statement of claim, Mr. Schnarr also pleaded that he was relying on s. 7(1) of the CPA to vitiate the entirety of the Blue Mountain waiver. He did not plead any additional or different facts to support his allegation that Blue Mountain failed to provide a reasonably acceptable quality of service.

[11] Although the trial was originally scheduled to start in January 2016, Tzimas J. concluded that, due to the amendment of the statement of claim and the novel issue of law raised, the case should first proceed by way of a r. 21 motion. Justice Tzimas ordered a determination of a question of law under r. 21.01(1)(a) based on the pleadings before trial. Justice Tzimas did not receive any evidence other than the parties' agreed statement of facts.

[12] On January 6, 2017, Tzimas J. released her reasons on the r. 21 motion. Justice Tzimas held that there was no conflict between the impugned sections of the CPA and OLA, and that the relevant provisions could be read harmoniously under modern principles of statutory interpretation. She concluded that, by operation of ss. 7(1), 9(1), and 9(3) of the CPA, the defendant could not disclaim liability for any breach of the deemed warranty of providing services of a "reasonably acceptable quality". She went on to determine that Mr. Schnarr would be allowed to advance two distinct causes of action: one for negligence and the second for breach of warranty. She found that the negligence claim would be subject to the Blue Mountain waiver but that the breach of warranty claim would not be subject to that waiver since the portions purporting to waive liability for breach of warranty would be void and severed under ss. 9(3) and (4) of the CPA.

[13] Blue Mountain appeals from that decision.

Background Facts – Woodhouse v. Snow Valley

[14] On December 23, 2008, Ms. Woodhouse went skiing with her husband and grandson at Snow Valley. Ms. Woodhouse purchased a beginner ski package from Snow Valley, which included a lift ticket, equipment rental, and a lesson.

[15] The lift ticket itself contained a Release of Liability. Moreover, Ms. Woodhouse was also required to execute a Rental Agreement and Release of Liability on December 23, 2008 when she purchased the beginner ski package (the "Snow Valley waiver").[3] That document contains a section entitled "Waiver of Claims".

[16] The release on the lift ticket and the content of the Snow Valley waiver were never explained by Snow Valley to Ms. Woodhouse. However, prior to attending Snow Valley on December 23, 2008, Ms. Woodhouse reviewed the Snow Valley waiver's wording on Snow Valley's website. Nevertheless, Ms. Woodhouse was neither informed of nor aware of the CPA or any rights it afforded her on or prior to December 23, 2008.

[17] After signing the Snow Valley waiver, Ms. Woodhouse and her family took a ski lesson on December 23, 2008. After the ski lesson, Ms. Woodhouse and her family used the ski facilities for several hours. Ultimately, while using a tow rope, Ms. Woodhouse allegedly sustained injuries.

[18] On May 9, 2012, Ms. Woodhouse commenced an action in negligence for the injuries that she suffered. The parties eventually agreed to bring a r. 22 special case motion that raised five questions of law, all relating to the applicability of the CPA to Ms. Woodhouse's injuries allegedly sustained at Snow Valley.

[19] On January 13, 2017, McCarthy J. released his reasons on the r. 22 special case motion. He held that the CPA applied to the instant case. Consequently, he concluded that the Snow Valley waiver was presumptively void and, therefore, Ms. Woodhouse was entitled to proceed with her claim. Importantly, McCarthy J. held that s. 9 of the CPA voided the Snow Valley waiver in respect of both tort and contract claims. Justice McCarthy found that the OLA's provisions did not supersede the CPA's. However, he also held that a court could nonetheless order that Ms. Woodhouse was bound by the Snow Valley waiver by virtue of s. 93(2) of the CPA.

[20] Ms. Woodhouse appeals from the McCarthy J.'s conclusion regarding the applicability of s. 93(2) of the CPA. Snow Valley cross-appeals from the conclusion that s. 9 of the CPA voids an otherwise valid waiver under s. 3 of the OLA.

Issues on Appeal

[21] The parties framed their grounds of appeal in various ways. However, in my view, they can all be grouped into the following broad issues:

(a) Does s. 9 of the CPA conflict with s. 3 of the OLA, or can the impugned provisions be read harmoniously?

(b) If they conflict, how should each statute be interpreted and what effect should be given to the impugned provisions?

(c) In any event, does s. 93(2) of the CPA allow a court to hold a consumer bound to a voided waiver under s. 9(3) of the CPA?

Analysis

[22] At the outset, I note that the parties agree that the statutory interpretation issues raised by these appeals involve questions of law and thus the standard of review is correctness.

[23] With respect to the general principles of statutory interpretation, the Supreme Court has repeatedly reaffirmed the modern approach espoused in E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87 that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; and Indalex Ltd., Re, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 136. I analyze both statutes in greater detail below to explain the relevant scheme and objects of the OLA and CPA, as well as the legislative intent.

(i) Occupiers' Liability Act

[24] I begin with the origins of the OLA. The OLA came into force in 1980. It was enacted following the Ontario Law Reform Commission's 1972 Report on Occupiers' Liability, which recommended that the common law duty of care owed by occupiers[4] be replaced with one generalized statutory duty.

[25] That recommendation came into effect with the passage of the OLA. It is evident from the provisions of the OLA that the legislation was intended to establish a single primary duty of care that an occupier would owe to persons entering upon their premises. Section 3 of the OLA also prescribes a default standard of care that requires an occupier to take such care as is reasonable in the circumstances to keep entrants and their property reasonably safe on the premises. The breach of that statutory standard of care would make the occupier liable for injuries sustained by those entrants. As Lewis N. Klar and Cameron Jeffries say in their text, Tort Law, 6th ed. (Toronto: Thomson Reuters, 2017), at p. 723:

It seems irrefutable that the legislation was intended to be exclusive and comprehensive, in so far as the liability of occupiers is concerned.

[26] This intention is made clear by s. 2 of the OLA which reads:

Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier's liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

[27] The two critical sections of the OLA, for the purpose of these appeals, are ss. 3 and 4. I refer to the following portions of those two sections:

3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier's duty.

4(1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

[28] When considering the purpose of the OLA, it is of some importance to recognize that part of the rationale for including s. 4 in the statute was to encourage private landowners to voluntarily make their property available for recreational activities by limiting their liability. This was made clear in the Discussion Paper on Occupiers' Liability and Trespass to Property issued by the Ministry of the Attorney General in May 1979. It was also referred to by Allen M. Linden and Bruce Feldthusen in their text, Canadian Tort Law, 10th ed. (Toronto: LexisNexis Canada, 2015), at §18.66:

This provision was included for the purpose of protecting the interests of the agricultural community and to promote the availability of land for recreational activities. The Ontario Law Reform Commission's draft Act did not contain this particular section.

[Citation omitted.]

[29] Moreover, although s. 3(1) of the OLA prescribes the primary duty and standard of care, the OLA also expressly preserves situations where a higher obligation or standard may apply because of specific legislation or the common law under s. 9(1):

Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

(a) innkeepers, subject to the Innkeepers Act;

(b) common carriers;

(c) bailees.

[30] Thus, while the Legislature left to itself the right to establish a higher liability or duty of care for occupiers in specific situations, it did not see fit to amend the OLA to include obligations under the CPA. Moreover, as I will explain in my reasons below, the potentially "higher" obligations under s. 9 of the CPA cannot be read into this section.

(ii) Consumer Protection Act

[31] I now turn to the origins of the CPA. The CPA was enacted in 2002. It was adopted to modernize consumer law in Ontario. Prior to the enactment of the CPA, consumer protection was found in nine different statutes. The purpose of the CPA was to consolidate those statutes and update the law to provide protections for newer businesses and newer forms of transactions that were entering the marketplace.

[32] Two sections of the CPA are of particular importance to these appeals. One is s. 7(1) which reads:

The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

The other is s. 9 which reads in relevant parts:

9(1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

[33] With respect to these sections, I should note that there is no disagreement between the parties that the plaintiffs are consumers, the defendants are suppliers, and that the contracts that they entered into are consumer agreements.

[34] Prior to the enactment of the CPA, the Ministry of Consumer and Commercial Relations (now the Ministry of Government and Consumer Services, the "Ministry") circulated a consultation paper entitled "Consumer Protection for the 21st Century". It explained the reasoning behind the proposed enactment of the CPA. Two salient facts can be drawn from that consultation paper.

[35] First, Proposal 4(a) at p. 9 of the consultation paper points out that "consumer law should not apply to transactions already governed under regulatory regimes that adequately address consumer protection." The paper expands on this point, at pp. 9-10:

Although any transaction in which individuals pay for anything is in some sense a consumer transaction, there are several areas in which other specialized legal regimes apply instead of consumer law […] The Ministry is not proposing that general consumer law apply to these sectors.

The proposed broader definition of consumer transactions would also call into question its application to areas that are already regulated by industry- and sector-specific legislation...

In such cases, having two applicable legal regimes could be confusing, both for the public and the regulated sector. Similarly, having two regulatory bodies creates duplication…

[Emphasis added.]

[36] Second, the consultation paper discusses all of the industry and sector specific concerns that drove the goal of introducing new consumer protection legislation. Yet there is no commentary at any point in the consultation paper that identifies problems with the current state of legislation relating to occupiers, or problems with consumer transactions involving occupiers insofar as they provide their premises for the use of consumers engaging in recreational activities.

[37] Indeed, on a fair reading of the consultation paper and the CPA itself, it is evident that the principal concern was with respect to financial transactions, and the potential for scams to operate to the detriment of consumers. There is nothing to suggest that changing the existing framework governing liability for personal injuries sustained by persons availing themselves of premises for recreational activities was in any way an objective of the CPA.

[38] Mr. Schnarr and Ms. Woodhouse, and the intervener Ministry, point to the fact that the CPA exempts certain statutes under s. 2(2) and the OLA is not one of them. The thrust of this argument is based on expressio unius est exclusio alterius. However, as I will explain in my reasons below, the principle that things are implicitly excluded when others are expressly enumerated is not an absolute rule. Key to this analysis is the fact that when one looks at the types of exemptions provided by the CPA, both in s. 2(2) and in O. Reg. 17/05, it is clear that they are primarily directed at financial transactions and professional services. They are not directed at the type of activities covered by the OLA.

[39] There is nothing in the background to the passage of the CPA, or in the provisions of the CPA itself, that would suggest that it was intended to regulate duties of care of the type stipulated by the OLA, or that it was intended to regulate liability arising from the use of premises that are subject to the OLA. This conclusion is consistent with the consultation paper, which makes it clear that it was not the intention of the CPA to apply to areas that were "already regulated by industry- and sector-specific legislation."

[40] Having set out the background objects of the CPA and the OLA, I turn now to analyze whether they conflict.

(a) Does s. 9 of the CPA conflict with s. 3 of the OLA?

[41] The Supreme Court set out the principles of statutory interpretation with respect to the analysis of conflicting statutes in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at paras. 88ff. In that case, Air Canada failed to provide services in French on some international flights as required under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.). The applicant applied to the Federal Court for a remedy of damages but Air Canada contended that the Carriage by Air Act, R.S.C. 1985, c. C-26 precluded such liability. In analyzing whether a conflict existed between the two statutes, the Supreme Court held at para. 92:

First, courts take a restrictive approach to what constitutes a conflict in this context. Second, courts find that there is a conflict only when the existence of the conflict, in the restrictive sense of the word, cannot be avoided by interpretation. Overlap on its own, does not constitute conflict in this context, so that even where the ambit of two provisions overlaps, there is a presumption that they both are meant to apply, provided that they can do so without producing absurd results. This presumption may be rebutted if one of the provisions was intended to cover the subject matter exhaustively. Third, only where a conflict is unavoidable should the court resort to statutory provisions and principles of interpretation concerned with which law takes precedence over the other.

[42] I recognize that the above rules of statutory interpretation urge an approach that avoids a finding that two statutes conflict. This approach is premised upon the "presumption of perfection".[5] However, those interpretive rules still recognize that conflicts will arise. For example, courts have held that a conflict between two statutes arises where:

(a) provisions are so inconsistent or "repugnant" to each other that they are "incapable of standing together" (Reference re Broadcasting Act, S.C. 1991 (Canada), 2012 SCC 68, [2012] 3 S.C.R. 489, at paras. 41-45);

(b) the application of one provision must implicitly or explicitly preclude the application of another (Lévis (Ville) v. Côté, 2007 SCC 14, [2007] 1 S.C.R. 591, at paras. 48-49); or

(c) two pieces of legislation are "directly contradictory or where their concurrent application would lead to unreasonable or absurd results" (Lévis, at para. 47 and Thibodeau, at para. 95).

[43] In this case, as I have already alluded to, there is a clear and direct conflict between the OLA and the CPA – and it is an unavoidable one. The OLA permits an occupier to obtain a waiver of liability. The CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPA prohibits.

[44] The problem with the presumption of perfection is, of course, that it ignores the practical realities in which legislation is enacted. As Ruth Sullivan says in her text, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at 11.32:

This analysis ignores the realities of the way legislation is made and the way the statute book evolves. It ignores, for example, the fact that legislative schemes are developed, introduced and implemented by different departments with different legislative priorities. It ignores the tight timelines and political pressures under which much legislation is drafted.

[45] That observation has direct application to the situation here. The OLA is administered by the Ministry of Tourism, Culture and Sport. The CPA is administered by the Ministry of Government and Consumer Services. The two statutes were enacted by two different governments more than twenty years apart. Further, as I mentioned above, there is nothing in the consultation paper relating to the CPA, or otherwise in the record before this court, that suggests that, in enacting the CPA, any consideration was given to the OLA or to the impact that any of the provisions in the CPA might have on the OLA.

[46] Mr. Schnarr and Ms. Woodhouse try to avoid the reality of a conflict between the statutes by submitting that there is a distinction between the ability of a party to sue either in contract or in tort. On that point, with due respect to Tzimas J., suggesting that the waiver is valid with respect to the tortious negligence claims, but invalid with respect to the contractual warranty claims, is a distinction without a difference. In this regard, Mr. Schnarr and Ms. Woodhouse relied heavily on the decision in BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12. With respect, that decision does not support their position because they mischaracterize the nature of the issue that was engaged in that case. There is no doubt that the decision in BG Checo holds that a party has the choice whether to sue in contract or in tort. Indeed, they may decide to sue in both. No one disputes that principle.

[47] In this case, however, we are not dealing solely with duties arising from tort or contract. Here we are dealing with a duty of care imposed by statute: Mackay v. Starbucks Corp., 2017 ONCA 350, 413 D.L.R. (4th) 220, at paras. 10 and 46. It is the OLA's statutorily imposed duty that all occupiers must meet, regardless of whether the occupier has a relationship with an injured party that is founded in contract or in tort. The decision in BG Checo does not assist Mr. Schnarr and Ms. Woodhouse in this regard. Indeed, it arguably assists Blue Mountain and Snow Valley because the decision recognizes that parties can contractually alter the rights that might otherwise be imposed upon them by the common law. As LaForest and McLachlin JJ. said, at p. 27:

The rule is not that one cannot sue concurrently in contract and tort where the contract limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by the law in all the relevant circumstances, must yield to the parties' superior right to arrange their rights and duties in a different way.

[48] The OLA permits an occupier to "restrict, modify or exclude" the duty imposed by the statute regardless of whether a claim is founded in contract or in tort. The waivers in the instant appeals dealt with both Blue Mountain's and Snow Valley's contractual and tort obligations. The effort to avoid a conflict between the statutes on the basis that the OLA deals with tort liability and the CPA deals with contractual liability is not only artificial, it does not reflect the fact that the duty of care originates from the statute itself, nor does it take into account that the statute allows for the modification of the duty and liability arising therefrom. Moreover, adopting such a restricted interpretation of s. 3(3) of the OLA would go against the development trends in private law. As the majority noted in BG Checo, at p. 21, "the law should move towards the elimination of unjustified differences between the remedial rules applicable to the two actions [tort versus contract], thereby reducing the significance of the existence of the two different forms of action".

[49] Indeed, I agree with Tzimas J.'s observation, at para. 99 of her reasons:

On their face, the statutes take different approaches to waivers. This is so because they have very different legislative purposes. Waivers in the OLA are designed to shield occupiers. The rejection of waivers in the CPA is designed to shield consumers. A conflict in the application of both statutes arises when consumers clash with suppliers who are also occupiers.

[50] In my view, despite Mr. Schnarr's and Ms. Woodhouse's best efforts to advance the contrary proposition, there can be no reasonable conclusion other than that the two statutes conflict when one attempts to apply them to occupiers under the OLA who also happen to be suppliers under the CPA. Simply put, under the OLA, an occupier can obtain a waiver of liability (within limits as defined by the common law)[6] from any person coming onto their premises. However, that same occupier, if they are also a supplier under the CPA, cannot obtain an equivalent waiver. This, despite the fact that the factual foundation for both tort and contract causes of action are the same. A plain reading of the amended statements of claim allows for no other conclusion.

[51] As the instant appeals amply demonstrate, the result is a clear conflict. On the one hand, Blue Mountain and Snow Valley have lawful waivers that would exclude their liability for the injuries suffered by Mr. Schnarr and Ms. Woodhouse, respectively, and yet they are told that those waivers are of no effect by virtue of the CPA. It is of no practical comfort to Blue Mountain and Snow Valley 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.

(b) If the CPA and the OLA conflict, how should the conflict be resolved?

[52] The principles of statutory interpretation urge an approach that allows both statutes to maintain their maximum application and effectiveness. The principles affecting the analysis with respect to which statute should take precedence include:

(i) where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items (ejusdem generis);

(ii) when one or more things of a class are expressly mentioned, others of the same class are excluded (expressio unius est exclusio alterius);

(iii) the exhaustiveness doctrine;

(iv) the provisions of a general statute must yield to those of a special one (generalia specialibus non derogant); and

(v) the absurdity doctrine.

[53] I will discuss each in turn.

Class of things

[54] Section 9(1) of the OLA provides that the statute does not restrict the imposition of a higher liability or standard of care upon occupiers. It provides innkeepers, common carriers, and bailees as examples of where a higher liability or standard of care would apply even if those classes of persons are simultaneously occupiers. The class of persons is not exhaustive in s. 9(1). However, in my view, the type of situations that would impose a "special liability or standards of care" on occupiers under s. 9(1) should be read ejusdem generis and be restricted to situations that are similar to the enumerated examples.

[55] Indeed, the situations in which Ontario courts have imposed a higher standard of care upon an occupier are squarely analogous to the enumerated classes in s. 9(1). For example, in Miaskowski (Litigation guardian of) v. Persaud, 2015 ONCA 758, 393 D.L.R. (4th) 237, at para. 40, this court held that occupiers who are also landlords remain subject to the duties imposed on landlords under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. And in Miller v. Canada (Attorney General), 2015 ONSC 669, at para. 24, Leach J. held that the Crown's duty to take reasonable and adequate measures to protect an inmate from a reasonably foreseeable risk of injury and predictable dangers supplemented the Crown's duties under the OLA as an owner and occupier of penitentiaries.

[56] The CPA does not purport to apply a special liability or higher standard of care for actions that are incidental to the role of an occupier. Rather, the CPA seeks to regulate the entirely separate category of consumer transactions between a supplier and consumer. As such, reading the section pursuant to the principle of ejusdem generis, it is clear that the application of any special liabilities or higher standards imposed by the CPA were not meant to be preserved under s. 9(1) of the OLA.

Express mention

[57] As alluded to above, the fact that s. 2(2) of the CPA and its subordinate regulations do not include the OLA in its prescribed list of exemptions is not the end of the matter. The interpretive rule that the express mention of one thing means the implied exclusion of another is rebuttable, and has not been accepted by the courts where the proposed interpretation disregards the underlying objectives of the statute: Copthorne Holdings Ltd. v. Canada, 2011 SCC 63, [2011] 3 S.C.R. 721, at para. 111. Indeed, this court has cautioned against overreliance on the maxim: Fleming v. Massey, 2016 ONCA 70, 128 O.R. (3d) 401, at paras. 41-43.

[58] In these appeals, there is no evidence in the record that in drafting the CPA and the OLA, the Legislature turned its mind to the interplay of these two statutes. There is no basis for expecting an express reference to the OLA in the CPA's exemptions. As such, there is little value to the expressio unius argument in these appeals and it provides no basis to infer that the Legislature intended for the CPA to supersede the OLA.

Exhaustiveness

[59] As mentioned above, the OLA was a statutory scheme that replaced the common law with respect to occupiers' liability. Significantly, it replaced the different common law standards of care applicable to entrants on premises (including contractual entrants) with a single, unified statutory duty to take reasonable care to see that entrants and their property are reasonably safe on the occupiers' premises. Furthermore, the OLA expressly allows for the restriction, modification, or exclusion of the statutory duty.

[60] In my view, the OLA was therefore intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises. The very purpose of this legislative scheme would be undermined if the CPA were allowed to reintroduce another novel contractual duty that purports to subject occupiers to an obligation to warrant that their premises are of a "reasonably acceptable quality". As such, the fact that s. 9 of the CPA undermines the very purpose of the OLA is a factor that militates towards holding that the OLA supersedes the CPA.

Specific overrules general

[61] I appreciate that determining whether legislation is general or specific can be a difficult, and perhaps a somewhat theoretical, exercise. Indeed, it may very well be driven by the vantage point of the observer who is asked to make the determination. The arguments made by the parties in these appeals reflect that divergence.

[62] However, in my view, in this factual situation, the OLA must be reasonably seen as dealing directly with the core issue, that is, the ability of occupiers of premises to obtain waivers of liability. In contrast, the CPA deals generally with all forms of consumer transactions. Buying a ski pass is but one of a myriad of consumer transactions to which the CPA could apply. The OLA, on the other hand, deals directly, and substantially, with activities on premises (as defined), including the operation of recreational activities on premises. Indeed, as I have explained above, part of the rationale for permitting occupiers to obtain waivers of liability was to promote the use of their properties by others for those very activities.

[63] Adopting this approach does not invalidate the CPA or otherwise render it of no force or effect. Rather, this result simply recognizes that the OLA carves out consumer transactions that relate to activities covered by the OLA from the application of the CPA. Put another way, to the extent that an occupier engages with members of the public for the use of the occupier's premises in return for payment, and thus creates a consumer agreement, the provisions of the CPA do not apply to that agreement. At the same time, insofar as parties who are occupiers engage with members of the public and create consumer transactions that do not relate to "persons entering on premises or the property brought on the premises by those persons" (OLA, s. 2), then the CPA would still apply to those consumer transactions.

[64] This result is consistent with the approach taken in R. v. Greenwood (1992), 7 O.R. (3d) 1 (C.A.), 70 C.C.C. (3d) 260 where, in commenting on the application of the principle of generalia specialibus non derogant, Griffiths J.A. said, at p. 266:

Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but as providing an exception to the general.

Avoiding absurdity

[65] The application of the principle that the specific overrules the general, along with the exhaustiveness principle in these appeals is also consistent with the objective of avoiding an absurdity, which is what I view the positions adopted by the motion judges below to result in. It is clear that one of the purposes of the OLA was to provide protection to occupiers who permitted persons to come onto their lands for the purpose of recreational activities. The result of the decisions below is that one of the fundamental purposes of the OLA is defeated, not through an intentional amendment to the OLA, but through an interpretation of the CPA that results in an indirect and implied amendment.

[66] I am reinforced in my conclusion in this regard by the actions of the Legislature in 2016 when it enacted the Ontario's Trails Act, 2016, S.O. 2016, c. 8, Sched. 1. This legislation, among other things, amended the OLA to provide protection to occupiers who permitted their premises to be used by members of the public for recreational trails, including hiking, portaging, or snowmobiling trails. These amendments resulted from concerns expressed by landowners of being exposed to liability as a result of allowing access to trails on their land. Volunteer non-profit clubs and associations taking care of those trails also voiced similar concerns.

[67] The Minister of Tourism, Culture and Sport explained the purpose of the legislation at the time that it was being debated. He said, in part:

One of the key pieces to this legislation is increasing the number of trail users by adding clarity to the Occupiers' Liability Act. That's an important piece that we think needs to be put in place here in Ontario. We know that trail tourism in the province of Ontario is part of a larger tourism sector in the province, which is a $28-billion sector.

Currently there exists some legal ambiguity around what standard of care is owed to the users of trails. For example, if an ATV club charges membership fees for coordinating rides on a portion of an Ontario trail network, it is legally questionable what level of care is required from the business and from the owner of the trail. If Bill 100 is passed, it will clarify legislation, encouraging further participation between businesses and the owners of trails.

[68] It is difficult to accept that the Legislature went through the exercise of amending the OLA for the purpose of clarifying the liability of occupiers, and to encourage them to open their property for use by members of the public, all to have it rendered of no force or effect because of the existence of the CPA. Indeed, the fact that the Legislature, in this instance, amended the OLA to address liability issues surrounding the recreational use of property, with no mention of or reference to the CPA, strikes me as clear evidence that the Legislature did not view the CPA as having any role to play in this area.

[69] The conclusion that the CPA does not operate within the sphere of activities governed by the OLA does not undercut the effectiveness of the CPA, nor does it offend public policy. Rather, it allows for the commercial flexibility necessary to promote the goal of encouraging landowners to permit their premises to be used for recreational activities. This objective was noted by the Supreme Court in BG Checo, where La Forest and McLachlin JJ. said, at p. 27:

This principle is of great importance in preserving a sphere of individual liberty and commercial flexibility. Thus if a person wishes to engage in a dangerous sport, the person may stipulate in advance that he or she waives any right of action against the person who operates the sport facility: Dyck v. Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589.

[70] I note that, in Dyck, the court held that there were no grounds of public policy that would lead to the striking down of a waiver of claims clause.

[71] This conclusion also does not offend the principle that consumer protection legislation should be interpreted generously. That principle only applies where the legislation operates validly. It does not apply to expand the jurisdiction of consumer protection legislation to occupy an area that is already covered by other specific legislation. Decisions such as Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531 and Weller v. Reliance Home Comfort Limited Partnership, 2012 ONCA 360, 110 O.R. (3d) 743 do not assist in determining the central point at issue in these appeals.

[72] Finally, this conclusion is also consistent with the principle that broad language in legislation may be given a restricted interpretation where necessary in order to avoid an absurdity. As Blair J.A. said in Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, 114 O.R. (3d) 321, at para. 51:

It is also consistent with the principle that broad language in a statute may be given a somewhat restricted interpretation where necessary in order to avoid absurdity and to give the words their appropriate meaning, having regard to their context, the purpose of the Act, and the intention of the Legislature.

[73] As such, 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.

(c) Does s. 93(2) of the CPA allow a court to hold a consumer bound to a voided waiver under s. 9(3)?

[74] Ms. Woodhouse's appeal raises a separate issue with respect to McCarthy J.'s conclusion that s. 93(2) of the CPA might be used as a mechanism to hold a consumer to a waiver of liability, even if s. 9(3) of the CPA voided the waiver. While Tzimas J. did not make any direct finding on this issue, I believe a fair reading of her reasons suggests that she reached the opposite conclusion. While it is technically unnecessary for me to address this issue in light of my conclusions above, I will deal with it for the sake of completeness, especially since the issue was fully argued by the parties. I believe that the issue can be dealt with briefly.

[75] Section 93 of the CPA reads:

(1) A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations.

(2) Despite subsection (1), a court may order that a consumer is bound by all or a portion or portions of a consumer agreement, even if the agreement has not been made in accordance with this Act or the regulations, if the court determines that it would be inequitable in the circumstances for the consumer not to be bound.

[76] In concluding that the court could rely on s. 93(2) to hold a consumer to a waiver of liability, notwithstanding that such waiver would be void under s. 9 of the CPA, McCarthy J. said, at para. 43 of his reasons:

I conclude therefore, that in situations where a consumer agreement contains terms or acknowledgments rendered presumptively void by operation of s. 9(3) and where the parties cannot agree to sever those offending terms from the consumer agreement under s. 9(4), the court may exercise its jurisdiction to sever the offending terms of the consumer agreement. It may do so as part of its s. 93(2) inquiry into whether it would be inequitable in the circumstances for the consumer not to be bound by the original agreement, including those terms and acknowledgments that would be void but for the equitable jurisdiction of the court.

[77] In my view, the motion judge erred in so concluding. The purpose behind s. 93(2) is to avoid situations where a consumer, who has received the benefit of a consumer agreement, attempts to retain those benefits without performing his or her side of the agreement because of a technical breach of the CPA. Section 93(2) is not intended to permit the court to hold a consumer to a consumer agreement that violates one of the basic tenets of the CPA, especially when the provision is void.

[78] In that regard, it is important to observe, and give effect to, the exact wording of s. 9(3) of the CPA. It reads:

Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

[79] Two points can be taken from that wording. One is that it applies to any term or acknowledgment whether it is part of the consumer agreement or not. Thus, s. 9(3) has a very broad reach. It is clear that it was intended to catch any attempt to negate or vary the deemed warranty provided by s. 9(1) of the CPA, even if the attempt is outside of the consumer agreement itself. The other is that s. 9(3) renders any such term or acknowledgement void. A term that is void is a term that is a nullity. It is different in kind from a term that is voidable. A term that is void has no legal force or effect and there is nothing to be saved by a curative provision: Price v. Turnbull's Grove Inc., 2007 ONCA 408, 85 O.R. (3d) 641, at paras. 34-37.

[80] Adopting a purposive interpretation of the CPA, there is nothing that would suggest that the Legislature intended that, notwithstanding the direct language used in s. 9(3), courts would be able to hold a consumer to a waiver of the deemed warranty provided by s. 9(1) of the CPA. Indeed, it would be hard to conceive of a factual situation where it would be equitable to do so in light of the fundamental purpose of the CPA.

[81] I conclude therefore that s. 93(2) cannot be used to give effect to a waiver that is voided by s. 9(3) of the CPA.

Conclusion

[82] The two appeals and the cross-appeal are all allowed. The orders below are set aside. Mr. Schnarr is bound by the Blue Mountain waiver and Ms. Woodhouse is bound by the release in her lift ticket and the Snow Valley waiver. This is so regardless of whether their claims are in tort or for breach of warranty. The proceedings are remitted back to the Superior Court of Justice to proceed in accordance with these reasons.

[83] The parties may make written submissions on the matter of costs. Blue Mountain and Snow Valley shall file their submissions within 10 days of the release of these reasons. Mr. Schnarr and Ms. Woodhouse shall file their submissions within 10 days thereafter. No reply submissions are to be filed without leave of the court. None of the costs submissions shall exceed five pages in length.

[84] There will be no order for costs either in favour of or against any of the interveners.

Released: March 28, 2018

"I.V.B. Nordheimer J.A."

"I agree. Doherty J.A."

"I agree. David Brown J.A."

Footnotes

[1] This principle is captured by the Latin maxim generalia specialibus non derogant.

[2] Relevant portions of the Blue Mountain waiver are reproduced in Appendix A to these reasons.

[3] Relevant portions of the Snow Valley waiver are reproduced in Appendix B to these reasons.

[4] The common law standard of care for occupiers varied depending on whether the person entering the premises was an invitee, licensee, trespasser, or contractual entrant.

[5] Sometimes also referred to as the "presumption of coherence".

[6] See Department of Justice, Report on Occupiers' Liability (Ontario: Ontario Law Reform Commission, 1972), at pp. 14-16 where the report states "the words 'where an occupier is free to' [under s. 3(3)] are used to ensure that an occupier's power to extend, restrict, modify or exclude his duty shall be no greater than it was under common law."