Woodhouse v. Snow Valley, 2015 ONSC 2802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIZABETH WOODHOUSE
Plaintiff
– and –
SNOW VALLEY RESORT (1987) LTD. a.k.a. SKI SNOW VALLEY (BARRIE); SNOW VALLEY BARRIE; SNOW VALLEY SKI RESORT; SNOW VALLEY, 717350 ONTARIO LTD.
Defendants
M. Lemieux, for the Plaintiff
J. Beleskey and E. Chadderton, for the Defendants
HEARD: February 20, 2015
VALLEE J.
1The plaintiff brings this motion for a determination of an issue before trial. Ms. Woodhouse alleges that she was injured while using a ski lift at the defendant’s premises (Snow Valley) because one of Snow Valley’s employees negligently operated the lift. When Mr. Woodhouse began her day at Snow Valley, she purchased a beginner’s ski package which included equipment rental, a lesson and a lift ticket. The wording on the lift ticket contained an exclusion of liability and assumption of risk clause. Ms. Woodhouse signed a rental agreement and a release of liability form which included a waiver clause. It states that Snow Valley is released from all liability for any damages Ms. Woodhouse might suffer arising out of any aspect of her use of the equipment due to any cause including negligence, breach of contract and breach of warranty on Snow Valley’s part.
2The Consumer Protection Act, 2002, S.O. 2002, c.30, provides substantive rights to consumers who enter into consumer agreement with suppliers of services. Section 9(1) states, “The supplier of services is deemed to warrant that the services supplied under a consumer agreement are reasonably acceptable quality.” It states that the rights under the Act apply despite any agreement to the contrary. Ms. Woodhouse seeks an order to strike paragraphs 9, 10 and 18 of Snow Valley’s Statement of Defence, which plead reliance on the terms of the release of liability form and the waiver, as being contrary to the provisions of the Act. The defendants oppose the motion on several grounds, one being that this is a novel issue and should not be determined on a Rule 21 motion.
3If the plaintiff is successful on this motion, Snow Valley would not be able to assert that its waiver protects it from a negligence claim. In essence, the result would be that Snow Valley cannot contract out of its own negligence. Snow Valley would still be able to defend the claim in the same manner available to any other defendant in a negligence action.
Issues
Is a determination of this question of law appropriate on a Rule 21 motion prior to trial?
If so, do the terms of the CPA operate to negate Snow Valley’s waivers?
Applicable Legal Principles
4Rule 21.01 states,
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.
(2) No evidence is admissible on a motion [except in certain situations].
5Unsettled legal issues should be determined only in the context of a full factual record. A Rule 21 motion is not the proper forum to resolve this type of issue. (see Reynolds v. Kingston (Police Services Board), 2007 ONCA 166)
The Plaintiff’s Position on Issue No. 1
6The plaintiff states that there is no reason to preclude the court’s determining this issue before trial. While the issue is novel, a more robust factual record would not provide the court with further assistance on the matter. There is no clear and overwhelming evidence that an equity would result from applying the relevant sections of the CPA. One cannot say that the waiver has been so clearly explained and is so unequivocal that people who go to ski resorts should have their rights taken away. Snow Valley admitted facts to which the plaintiff says the CPA applies. Specifically, Snow Valley is a business operating in Ontario, the plaintiff purchased a ski package and accordingly was a consumer, the result was a consumer transaction. Therefore the CPA applies.
7If the motion is successful, all of the terms of the entire waiver will not be negated. The inherent risk term will still apply.
Analysis
8The parties agree that this is a novel issue. They could not direct me to any cases in which a court in Ontario has applied the provisions of the CPA to a contract between a ski resort and a skier. The cases upon which the plaintiff relies concern contracts for water heater rentals, provision of telecom services, sale of computers, and residential tenancies. (see Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481 (ONCA), and Price v. Turnbull’s Grove Inc., 2007 ONCA 408, 85 O.R. (3d) 641 (ONCA))
9In Reynolds, the court cited Wilson J’s dissenting reasons as follows:
The determination of unsettled legal issues should be made only in the context of a full factual record, possible including appropriate expert evidence…to the extent that this case involves the resolution of unsettled questions of law, requiring a factual context, a Rule 21 motion is not the proper forum to resolve the issue.
10Accordingly, I conclude that this Rule 21 motion is not the proper forum to resolve the issue of whether a ski resort may contract out of its own negligence through the use of a waiver. The trial judge will be in the best position to determine this question of law. Since the plaintiff has not been successful with respect to the first issue, the second issue is moot. Accordingly, the plaintiff’s motion is dismissed.
Costs
11Both parties agreed that costs of $6,000 should be awarded to the successful party. Therefore, the plaintiff shall pay Snow Valley costs of $6,000 within 30 days.
VALLEE J.
Released: April 29, 2015