Court File and Parties

COURT FILE NO.: CV-11-4023 DATE: 20170106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Schnarr, Plaintiff AND: Blue Mountain Resorts Limited, Defendant

BEFORE: Justice E.R. Tzimas

COUNSEL: Peter Cho, Counsel for the Plaintiff Robert A. Betts, Counsel for the Defendant

HEARD: April 6, 2016, September 13, 2016, and November 10, 2016

Endorsement

Introduction

[1] The plaintiff in this matter, David Schnarr, brought a Rule 21 motion for a judicial determination of a question of law concerning the application and the breadth of section 7(1) of the Consumers Protection Act, 2000, S.O. 2002, c.30 Sched. A (the CPA), in the context of a negligence claim where the plaintiff was injured while skiing at the defendant’s ski resort. The issue he raised is a novel legal question. It effectively engages the interplay between the rights of consumers, pursuant the CPA, and the rights and liabilities of occupiers, pursuant to sections 3(3) and 5(3) of the Occupiers Liability Act, R.S.O. 1990, c.02 (the OLA).

[2] According to the CPA, if a consumer signs a waiver of liability with a supplier that waiver is unenforceable as it relates to substantive and procedural rights that are protected by the CPA. Section 7(1) in particular, vitiates the waiver of CPA rights and returns them to the consumer. One of those rights, provided for in section 9(1) of the CPA, is that suppliers are deemed to warrant that services provided are of a “reasonably acceptable quality”.

[3] The plaintiff asked this court to apply section 7(1) of the CPA and to interpret it in such a manner so as to vitiate the defendant’s entire comprehensive waiver/release of liability which he signed. The defendant’s waiver is a waiver of “any and all liability for any loss, damage, expense or injury … due to any cause whatsoever, including negligence, breach of contract any statutory or other duty of care, including any duty of care owed under the Occupiers’ Liability Act…” The plaintiff’s proposed interpretation of section 7(1) of the CPA would have the effect of eliminating the protections afforded to occupiers by virtue of sections 3(3) and 5(3) of the OLA which allows for the waiver of liability for negligence claims.

[4] The defendant strenuously opposed such an interpretation. It argued that Canadian Courts have accepted waivers as an appropriate way for occupiers to avoid liability for accidents and injuries and that the OLA expressly permits occupiers to use exculpatory waivers so long as reasonable efforts are made to bring the waiver to the attention of those accessing the premises. The defendant argued that the plaintiff’s proposed interpretation of the CPA would reverse the law on waivers and would upend years of jurisprudence. The defendant also submitted that the CPA was never intended to bleed over and impact Ontario’s tort regime. In any event, the defendant noted that its waiver did not run afoul of sections 7(1), 9(1) and 9(3) of the CPA.

[5] Underpinning the defendant’s position was the policy view that any change in the legal application and use of waivers by occupiers to protect themselves from liability for accidents and injuries would have a profound impact on the recreation and trust industries, not only in Ontario, but across the country. These industries depend on waivers of liability and their elimination would reverse decades of established law in Canada.

[6] In my consideration of this issue I reviewed the parties’ submissions, both oral and written, the principles of statutory interpretation, the longstanding law on exculpatory waivers pursuant to the OLA, the objectives and purpose of the CPA, and the principles of severance. The task before me was to determine whether the two provincial statutes conflicted and if so to provide for an interpretation that would result in a just and fair meaning of the respective provisions. The modern principles of statutory interpretation do not allow one provision in a provincial statue to override another provision in another distinct statute.

[7] For the purposes of this motion, the parties agreed that the defendant is a supplier, as contemplated by the CPA and that the waiver was part of the consumer agreement between them. The plaintiff took the firm position that even though the CPA only concerned waivers of CPA protections, section 7(1) of the CPA could be used to strike those parts of the defendant’s waiver that did not relate to the CPA. The plaintiff categorically denied any possibility that the defendant’s waiver might be read down to extract the CPA protections from the ambit of the waiver, and therefore cure the defect in the defendant’s waiver. In support of his position, the plaintiff advanced a number of arguments that have already been settled in the jurisprudence and went as far as to suggest that the court should not hesitate to engage in what would amount to a wholesale re-writing of the jurisprudence on waivers and the law concerning the OLA and to upend established legal principles. In effect, the plaintiff urged the court to find that the requirements of the CPA trumped the defendant’s rights under the OLA.

[8] The defendant took a more nuanced approach, but nonetheless asked the Court to give a preference to the terms of the OLA over those of the CPA and effectively override anything contained in the CPA. Its primary position was that the waiver did not offend the CPA requirements, that it had nothing to do with the CPA warranty, and, in any event, the court should exercise its equitable discretion in the face of the established case law and recognize the requirements of the OLA over those of the CPA in a negligence claim. In the alternative, the defendant did not disagree with the resort to some form of severance if it meant curing a defect in its existing waiver.

[9] In sum, even though both parties agreed with the modern principles of statutory interpretation and the need to come to an interpretation that is fair and just, the effect of their respective positions was to invite the court to override one provision in the one statue by the provision of the other statute. In the result, the plaintiff insisted that section 7(1) of the CPA could be used as a vehicle to vitiate the defendant’s entire waiver. The defendant submitted that the OLA was a specific piece of legislation that ought to prevail over the general requirements of the CPA so that its waiver would survive in its entirety without any recourse to severance.

[10] In reaching my decision, there were three overriding dimensions to this issue that served to shape my overall decision. The first was the recognition that the two provincial statutes treat waivers very differently. The CPA shields consumers from waivers related to CPA protections. The OLA allows occupiers to use waivers as a shield against negligence claims. The reference to waivers in the two statutes and the extent of their use is consistent with the statutes’ respective purposes. Viewed in isolation, the statutes do not conflict with each other or contain contradictory terms. They come into conflict when a consumer interacts with a supplier who is also an occupier.

[11] This leads to the second dimension of the issue before me. The defendant’s waiver is worded in exceptionally broad terms so as to cover off any claim for loss or damages, arising out of any cause whatsoever, including breach of contract. A breach of contract would include breach of the warranty of a “reasonably acceptable quality” of service. The supplier would not have to make any representations about the quality of service to be provided because the warranty under the CPA is a “deemed term of the consumer agreement”. The defendant’s broadly worded waiver has the effect of “bleeding” into CPA territory. The defendant was correct to note the very distinct purpose and objectives of the OLA and the CPA and to argue that the CPA could not be relied upon to impact the tort regime. However, in a similar vein, waivers that extend beyond the permitted statutory parameters of the OLA, exceed their contemplated purpose and are therefore defective. The question must therefore turn on whether and how the defect may be cured. Does the whole waiver fall by virtue of its defect or can it be read-down in a way that cures the defect in a minimally intrusive manner?

[12] The third dimension to the legal issue relates to the interplay between the plaintiff’s two causes of action. Although the plaintiff’s overriding objective is to use the CPA protections to vitiate an OLA waiver, the court cannot ignore the reality that the plaintiff has advanced two separate and distinct theories of liability, one in negligence and the other in contract. The OLA protections pertain to the plaintiff’s negligence claim. The CPA protections pertain to the plaintiff’s breach of warranty claim. Both of these are excluded by the defendant’s waiver; however, only the CPA includes a provision, at section 7(1), saving its protections from waiver. There is nothing in the CPA that allows it to intrude into waivers that are unrelated to the CPA protections. Section 7(1) is focused on consumers’ substantive and procedural protections under the CPA. This is not a case of applying specific over general legislation. Each statutory regime is very specific to the purpose and protections it purports to offer.

[13] In light of these overriding observations, and for the reasons that follow, I conclude that a modern interpretation of the OLA and the CPA that would allow for a fair and just result must begin with the recognition that section 7(1) of the CPA vitiates those parts of the defendant’s waiver that relate to the procedural and substantial rights protected by the CPA. Section 7(1) however cannot be used to vitiate the defendant’s waiver in its entirety. To follow such an approach would be contrary to the objectives and purposes of both statutes. In the face, however, of a defective waiver, the appropriate remedy is to read out the offending portions of the defendant’s waiver and allow the balance of the waiver to stand. The most appropriate tool for such a reading-down is to resort to a notional severance of the CPA protections from the defendant’s waiver. Such an approach will preserve the waiver’s terms that concern an occupier’s OLA rights and protections but not at the expense of the consumer’s CPA protections.

Background

Agreed Facts

[14] The parties do not dispute the following facts.

[15] Mr. Schnarr purchased a 2010-2011 season ski pass from Blue Mountain’s website on April 29, 2010. On March 26, 2011, while descending the trail run known as “Smart Alec”, Mr. Schnarr collided with a piece of debris from a broken ski pole, lost control, struck a tree and sustained injuries and damages.

[16] The parties agree that Mr. Schnarr was a ‘consumer’ and that Blue Mountain was a ‘supplier’, as defined by the CPA. They also agree that the Season Pass was a ‘consumer agreement’, also as defined by the CPA, and that it was completed in the Province of Ontario.

a) The Consumer Agreement

[17] To complete the consumer agreement and obtain his Season Pass, Mr. Schnarr was required to execute and agree to a waiver, which he did online. The waiver specifically barred Mr. Schnarr from pursuing any legal action against Blue Mountain. It begins with a Heading on a yellow and red box which says:

RELEASE OF LIABILITY AGREEMENT, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMINITY AGREEMENT BY AGREEING TO THE TERMS OF THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE PLEASE READ CAREFULLY

[18] The waiver goes on to state:

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT

In consideration of the SKI AREA OWNERS AND OPERATORS accepting my application for a season pass and Terrain Park pass (if applicable) and permitting my use of its lifts, runs and trials, freestyle terrain, race courses, restaurants, parking and other facilities (hereinafter referred to as the “Facilities”), I hereby agree as follows:

1. TO WAIVE ANY AND ALL CLAIMS that I have or may have in the future against the SKI AREA OWNERS AND OPERATORS and Blue Mountain Ski Club (1940)Inc., and the Terrain park sponsor and its affiliates and their respective directors, officers, employees, agents, representatives, successors and assigns (all of whom are hereafter collectively referred to as “THE RELEASEES”), and TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my use of or my presence on the Facilities or travel beyond the ski area boundary, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS’ LIABILITY ACT, ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF SKIING AND SNOWBOARDING REFERRED TO ABOVE;

The Present Action

[19] Mr. Schnarr commenced an action against Blue Mountain on October 13, 2011. Framed as a tort claim, Mr. Schnarr pleaded that he sustained injuries as “a direct result of the Defendant’s negligence, breach of Occupiers’ Liability Act and the negligence of its servants, agents and employees.”

[20] The statement of claim was amended on January 4, 2016 to plead breach of deemed warranty pursuant to terms of the CPA. Mr. Schnarr pleaded that although the defendant warranted that it would provide services of a reasonably acceptable quality, it failed to do so.

[21] Certain additional facts were pleaded that characterized the defendant as a supplier of a service, these included the fact that the defendant sold and the plaintiff purchased a seasons’ pass to the Blue Mountain Ski Resort, that the said pass was a consumer agreement and that the defendant as a supplier of services warranted that the services to be provided would be of a reasonably acceptable quality. The plaintiff relied on the same particulars he pleaded in support of his negligence claim to ground his added claim for the breach of the deemed warranty. He did not plead any additional facts specifically relating to the features of a reasonably acceptable quality of service.

[22] The trial was originally scheduled to proceed in January 2016. The amendment of the pleading gave rise to a novel question of law concerning the applicability of the CPA to ski hill operators and skiers and, if applicable, its interplay with the provisions of the OLA. In my endorsement of January 15, 2016, 2016 ONSC 474, I concluded that it would be appropriate to proceed by way of a Rule 21 motion, and specifically pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, for the determination, before trial, of a question of law raised by the pleading.

[23] The plaintiff asks this court to conclude that section 7(1) of the CPA, which disallows any waiver of liability for rights protected under that statute, operates to vitiate Blue Mountain’s waiver in its entirety with the further result that the plaintiff may restore his full rights to sue and to claim damages in negligence for the injuries that he suffered.

Position of the Parties

i. Mr. Schnarr’s Position

[24] There are three essential components to the plaintiff’s submission:

1. The defendant’s waiver releases the defendant from liability, “for any cause whatsoever, including negligence, breach of contract or breach of any statutory or other duty of care”;
2. The defendant cannot obtain a waiver of its obligations under the CPA to provide services of a “reasonably acceptable quality”; and
3. Since the defendant’s waiver releases the defendant from its obligations under the CPA, contrary to s.7 (1), the waiver is flawed and therefore, the entire waiver is void.

[25] Mindful of the longstanding and established law on the validity and application of waivers in the content of negligence claims and the defenses available to occupiers pursuant to the OLA, the plaintiff put before the court a detailed submission on how the interplay between the requirements of the OLA and the CPA would operate to allow the court to come to the proposed conclusion.

[26] Counsel invited the court to interpret the body of law concerning waivers pursuant to the OLA as narrowly as possible and to eliminate the protection from liability for those occupiers who present in the market with the additional character of a supplier. He urged the court to differentiate between occupiers who own land and who require the protection from liability for guests and trespassers who might cross onto their lands, and occupiers who sell a service and take on the additional character of a supplier of services. Counsel argued that in the latter instance, suppliers use their land to operate a business, supply a service, enter into consumer agreements, and earn a profit. In light of those facts, they should not be permitted to evade their obligations under the CPA by shielding behind an OLA waiver.

[27] The plaintiff went on to argue that to uphold the defendant’s waiver in this case would contravene the CPA and its express disallowance of waivers. The defendant, as a supplier of services should be bound by the same requirements of the CPA as any other supplier who would not have the benefit of an OLA waiver.

[28] In support of that submission, counsel reviewed the legislative and common law history leading up to the passing of the OLA and the CPA. Specifically with respect to the OLA, he submitted that this legislation was intended to clarify a land owner’s duty of care to an individual who enters its premises, whether as a guest or as a trespasser. The legislation was never intended to engage with the protections to be afforded to consumers. In contrast to the OLA, the CPA was intended to protect consumers from unscrupulous suppliers. There was never any intention for the CPA to intrude on the whole negligence regime and the rights and protections of occupiers.

[29] As between the requirements of the two statutes, the plaintiff submitted that the OLA and the CPA were not contradictory or in direct conflict with each other; each has a unique and distinct purpose and intent. The OLA concerns the protection and liability of occupiers. The CPA concerns the protection of consumers. The plaintiff concluded that the relevant sections in each act are neither contradictory nor in direct conflict, given the respective legislative purposes and intent.

[30] Relying on the Supreme Court of Canada in 2747-3147 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 160, the plaintiff recognized that when considering the interplay between two distinct provincial statutes, one provision in a statute could not simply override a provision in another statute; rather the court would be required to take a modern approach to statutory interpretation. In keeping with such an approach, if a party such as the defendant presented with a dual character, both statutes would be binding on the defendant and its obligations.

[31] The plaintiff also recognized that in the event of a conflict, the two statutes would have to be interpreted in light of one another. Applied to the facts of this case, the plaintiff submitted that the court would be required to determine two distinct questions: a) whether the defendant acted reasonably to keep persons reasonably safe while on its premises, in accordance with the requirements of the OLA; and b) whether it provided services of a reasonably acceptable quality in accordance with the requirements of the CPA.

[32] According to the plaintiff, the proposed approach would allow for a fair and just outcome. It would not result in any unfairness to the defendant because the defendant would be afforded the opportunity to advance a full defense and to prove that it met the standard of reasonableness both as an occupier and a supplier. Conversely, the plaintiff argued that if the defendant’s waiver operated to override the plaintiff’s consumer protections afforded by the CPA, the defendant’s release from liability would result in unfairness and inequity to the plaintiff and by extension to consumers of recreation premises. In such circumstances, consumers would be denied the express consumer protections afforded by the CPA and suppliers would be permitted to circumvent their obligations under the same law.

[33] Implicit in the plaintiff’s proposed approach was the elimination of the defendant’s waiver. Counsel did not expressly explain what would happen to the defendant’s waiver or its rights under the OLA. There was no discussion concerning the fairness as it related to the implications of the defendant’s loss of its protection under its existing waiver. Instead, the plaintiff asked the court to think about the fairness to the defendant, who would retain the ability to advance full defence in court, as contrasted to the unfairness to the plaintiff who would be precluded from advancing any claim under the CPA if the defendant’s waiver were upheld. In short, the defendant would still have ‘his day in court’ but the plaintiff would not.

[34] The plaintiff rejected the suggestion that the rights that he might have pursuant to the CPA’s deemed warranty could be preserved by way of a reading down of the defendant’s waiver. Counsel argued that the wording of the waiver was so broad that the deemed warranty anticipated by the CPA could not be notionally severed or blue-lined. Any kind of reading down or severance of the waiver would change the terms of the contract and result in a new contract that neither of the parties intended to create. In the plaintiff’s view, the defendant intended to create an all-encompassing waiver to prevent litigation for all risks associated with the skiing on their ski hills and due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care. The defendant should therefore not be permitted to vary the agreement to terms that neither party intended. Instead, the whole defective waiver should fall.

[35] Finally, the plaintiff’s overall submissions were anchored on the policy view that it would be in the public interest to limit and restrict the use of waivers of liability to protect consumers and to promote fairness in the marketplace. Recognizing that the issue before this court was novel, counsel did not disagree that by asking the court to read the requirements of the OLA very narrowly and by resurrecting issues concerning the parties’ balance of power, he was effectively inviting this court to revisit the well-established body of law that governs the use and application of, and reliance on, waivers in tort claims. He suggested that the intersection between the OLA and CPA on the subject of waivers opened the door to such a full-scale review of the jurisprudence and encouraged this court to walk through it and void the defendant’s waiver. Counsel also agreed that the striking of Blue Mountain’s waiver would have industry-wide implications on the use and application of waivers generally.

ii. Blue Mountain

[36] Blue Mountain disagreed with the proposition that s.7(1) of the CPA could operate to vitiate the waiver that Mr. Schnarr signed and expressly rejected the suggestion that the plaintiff could rely on the provisions of the CPA to avoid the application of Blue Mountain’s waiver altogether.

[37] The defendant submitted that the courts in Canada have accepted waivers as an appropriate way for occupiers to avoid liability for accidents and injuries. It highlighted the OLA’s express permission for occupiers to use exculpatory waivers, provided reasonable efforts are made to bring the waiver to the attention of people accessing the premises.

[38] In the defendant’s view, at no time was there ever a legislative intention for the provisions of the CPA to intrude into the tort regime in Ontario and the protections afforded to occupiers. Counsel invited the court to take a narrow view of the CPA and limit its application to the protection of consumers exposed to fraudsters and unscrupulous operators. Counsel relied on comments in the Legislature, as recorded by Hansard, to support this particular submission.

[39] Apart from a narrow interpretation of the legislative requirements of the CPA, Blue Mountain’s counsel submitted that the waiver did not run afoul of the sections of the CPA and did not violate any CPA procedural or substantive rights afforded to Mr. Schnarr; the plaintiff was not precluded from bringing his claim before the courts. Speaking generally about waivers permitted by the statutory requirements of the OLA, the defendant further submitted that a waiver is a binding contract. In this instance, the plaintiff agreed to the particular waiver in question. It would therefore be contrary to the law of contract to allow the plaintiff to rely on the statutory terms of the CPA to avoid the waiver which he knowingly agreed to when he purchased his 2010/11 seasonal pass to the Blue Mountain Ski Resort.

[40] Turning specifically to the waiver at issue, the defendant disputed the suggestion that its waiver even breached section 9(1) of the CPA because there is nothing in its waiver that speaks to quality of service. In its factum, the defendant noted:

[T]here is nothing in the waiver that attempts to violate or deviate from section 9(1). The waiver in question is silent on issue relating to the quality of services to be provided and there is no term, condition or provision within it that purports to alter the applicable standard of care or the required quality level of services.

[41] The defendant also challenged the plaintiff’s suggestion that if the waiver were to be upheld, the plaintiff would be precluded from pursuing any cause of action. Counsel submitted that there was nothing in the waiver to act as a barrier to Mr. Schnarr’s ability to commence an action for damages. What the waiver offered to the defendant was a waiver of liability and therefore a potential defense. Consumers could pursue a claim if they could satisfy the court that occupiers/suppliers failed to make reasonable efforts to bring waivers to their attention. If they succeeded on that argument, they could continue with their claim.

[42] Counsel also submitted that the terms of the CPA and the implications on the defendant’s waiver should be interpreted in a way that would preserve an occupier/supplier’s right to a defense of reasonable notice. In this regard the defendant noted that the court should also take into account the defendant’s clear intention to limit the plaintiff’s right to sue the defendant for injuries that may be sustained while using its facilities, and the plaintiff’s acceptance and understanding that he was relinquishing his right to sue for any injuries he sustained while on the defendant’s premises. The common intention of the parties is evident on the face of the waiver and the enforcement of the waiver in its entirety would be consistent with the basic freedom of contract principles. On the facts of this case, the plaintiff had notice of the waiver and accepted it.

[43] The defendant also submitted that any waiver prohibition under the CPA, if the court were to conclude that such existed, would have to be assessed in light of the express permission for waivers of liability given to operators pursuant to the OLA. Relying on the principle of generalia specialibus non derogant, counsel submitted that the CPA’s general provisions for all consumer agreements would have to give way to the OLA’s specific provisions.

[44] In its analysis of this issue counsel suggested that when section 9(1) of the CPA is examined in light of the obligations under the OLA, the section is entirely redundant because s.3(1) of the OLA requires the occupier to see that persons on the occupier’s premises are reasonably safe. The defendant relied on this observation to argue that this was one more reason its waiver could not be said to be in violation of the requirements of the CPA.

[45] In keeping with the principles that underlie the validity of a waiver and the common law protections that would be available to the plaintiff, the defendant also submitted that its waiver was not contrary to public policy and that it would be fair and appropriate for the court to exercise its equitable discretion to uphold the defendant’s waiver, even if the court concluded that the waiver violated the requirements of the CPA.

[46] On the issue of severance, the defendant submitted that there was no need to resort to such a remedy because the defendant’s intention behind its waiver was focused on limiting a patron’s right to sue the defendant for any injury that might be sustained while on its premises and facilities. Counsel suggested that Blue Mountain was never focused on the requirements of the CPA and reiterated the view that there was nothing in the language contained in the waiver to suggest that it was ever their intention to intrude into the subject of consumer rights and protections. Counsel reiterated the view that when considering the scope of the CPA, it should be read narrowly to apply only to the protection of consumers from fraudsters and scam artists as those were the legislative intentions behind the passing of the CPA. In contrast to such situations, properly executed consumer agreements, with full disclosure from the supplier, should be upheld in their entirety and should not be caught by the ambit of the CPA terms.

[47] Counsel for the defendant also raised concerns over the implications of a finding that a service fell below the standard of a reasonably acceptable quality. He questioned whether the court could even engage in a full consideration of the implications of a CPA warranty on a claim, given the absence of any submissions on the standard of care that is associated with the deemed warranty. This concern, the defendant suggested, was relevant to understanding the scope of the CPA deemed warranty and its implications and impact on the OLA regime. If a breach of the deemed warranty were to result in an injury, the consumer could to seek damages against the supplier pursuant to the CPA, where under the OLA he would not. Counsel submitted that the effect of such an overlap would amount to a “back door” access to a damages claim for the injured party and exposure to liability for the occupier. This would begin to undermine the OLA regime. Such an outcome would be contrary to the modern objectives of statutory interpretation and would result in an unjust and unfair outcome.

[48] That said, the defendant agreed that if the Court were to conclude that the language in the waiver offends the statutory requirements of the CPA, but is not otherwise objectionable, the Court could resort to severance to cure the waiver’s defect. Counsel referred to William E. Thomson Associates Inc. v. Carpenter (1989), 1989 ONCA 185, 69 O.R. (2d) 545, at page 8, and Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, [2004] 1 S.C.R. 249, at para. 24, and identified the four factors that must be considered by the court to determine whether severance should be applied. He concluded that the court could exercise its discretion and apply the remedy of severance to cure the offending aspects of the waiver and therefore preserve Blue Mountain’s statutory rights under the OLA.

Analysis

[49] There can be little doubt that the interplay between the protections afforded to occupiers pursuant to the OLA and the protections afforded to consumers pursuant to the CPA, especially as both relate to the use and application of waivers of liability, is a novel legal issue. What complicated matters even further was the plaintiff’s attempt to use the CPA’s disallowance of waivers in the context of its protections, as a sword to strike out the defendant’s entire waiver of liability.

[50] It is crucial to highlight right at the outset that although the plaintiff’s legal argument was cast in terms of the protection of consumer rights, the obligations of suppliers of services, and the underlying fairness and associated implications of being permitted to pursue claims under the CPA, the plaintiff’s real objective was not limited to preserving the plaintiff’s CPA rights. Rather, the plaintiff tried to thread his negligence claim through a separate cause of action founded on the CPA’s deemed warranty to then ground his legal argument that the defendant’s waiver be struck in its entirety.

[51] This strategy was evident in the way the plaintiff pleaded his CPA claim. Even though a breach of warranty under the CPA is a separate cause of action, the plaintiff grounded his damages for breach of warranty on the same damages he pleaded in support of his tort claim in tort law and negligence principles. In effect, the plaintiff dressed up the tort claim as a breach of warranty claim to get at the striking out of the defendant’s waiver. This strategy explains the plaintiff’s resistance to any suggestion that the defendant’s waiver might be cured if it were read-down to segregate the CPA claim from the balance of the claim.

[52] If the plaintiff were to persuade the court that the CPA could be used to entirely vitiate the defendant’s waiver, the plaintiff would acquire a clear path to a full trial of the negligence claim and the defendant would have to advance a full defence, where otherwise that defence would be limited to the subject of adequate notice of the waiver to the plaintiff.

[53] It is also important to note at the outset that the positions of both parties contained internal inconsistencies that undermined their respective positions.

[54] Beginning with the plaintiff, the suggestion that the two acts could co-exist, that there was no conflict between them as that related to the treatment of waivers, and that resort to principles of fairness would allow for the most harmonious co-existence of the two statutes, was misleading. In the guise of fairness, the plaintiff obscured the concern that his approach would effectively eliminate defendant’s statutory protections in one sweep. The plaintiff did not offer any explanation as to what would happen to the defendant’s right to rely on the OLA protections. The plaintiff was only focused on the unfairness of waivers generally. But the court cannot unilaterally read-out statutory requirements just because the plaintiff would like to put the defendant through a full defence. Such a dramatic change would be for the Legislature to address.

[55] The plaintiff’s proposal was especially troubling because counsel expressly recognized that statutory interpretation principles do not permit the overriding of one provision in a provincial statute by another provision found in another provincial statute, but then put forward an approach that did just that. The disappearance of the defendant’s waiver was cloaked in principles of fairness and took away from the analysis the crux of the problem: what about the defendant’s waiver?

[56] A second problem with the plaintiff’s overall analysis rested with an apparent confusion over what protections the CPA could actually offer. The deemed warranty in section 9(1) of the CPA concerns the breach of a warranty. Such a breach can be construed as a specific type of breach of contract. However, section 9(1) does not engage or relate to a tort claim. The scope of section 7(1) of the CPA is only focused on the disallowance of waivers in relation to the protections offered by the CPA. The plaintiff was either oblivious to this very material distinction, or chose to ignore it.

[57] The apparent confusion over the scope of the protections that the CPA might offer extended and caused a third flaw in the plaintiff’s approach, namely a conflation of the two distinct causes of action of the plaintiff’s claim. On the face of the plaintiff’s amended pleading the plaintiff appears to be advance there are two theories of liability against the defendant. As separate causes of action, each is connected to separate damages. The pleading holds out the prospect that the plaintiff could be compensated in contract and in tort. In his attempt to extend the CPA protection into tort territory, the plaintiff then blurred the two theories. The blurring was most evident in the way he equated the particulars of the breach of warranty to the particulars of the negligence allegations. The plaintiff did not plead any particulars that would go to the consideration of the standard of care for the delivery of a service of a reasonably acceptable quality. He relied on the particulars of associated with the tort claim. While there can be little doubt that the basic factual foundation to the claim may be the same, the separate causes of action will require the trier of fact to make specific findings of fact for each cause of action.

[58] This ‘blurring’ is a significant flaw in the plaintiff’s overall approach because it also opened him up to the defendant’s criticism and concern that the plaintiff is really trying to use the protections of the CPA as back door to a liability claim against the defendant that would not otherwise be available.

[59] Turning to the defendant’s position before the court, here too the court was faced with certain internal inconsistencies, some of which mirrored those of the plaintiff.

[60] The first difficulty rested with the way the defendant described its waiver and the intentions behind it. The defendant submitted that the clear intention of the parties was to limit the plaintiff’s right to sue Blue Mountain for injuries that may be sustained while using its facilities. The defendant also argued that the waiver made no representations whatsoever concerning the quality of services and made no attempt to alter the applicable standard of care required or the required quality of provided services. On that basis, it argued that its waiver did not offend section 9(1). The defendant relied on such silence to argue further that there was never any intention to intrude on the protections extended by the CPA and that the waiver had nothing to do with the requirements of the CPA. But the defendant also submitted that the plaintiff willingly gave up all his rights, including those related to the CPA, and should therefore be fully bound by the waiver. This argument raises a number of difficulties.

[61] First, although it can be readily accepted that the waiver in broad terms is primarily about a waiver of liability for injuries, it is misleading to suggest that it is only about injuries and has nothing to do with the CPA. The defendant is concerned about injuries, however they occur. If an injury results from a breach of the deemed warranty contemplated by the CPA, then it gives rise to questions of the scope of the waiver and its applicability to CPA claims. To cast the waiver as something that is merely concerned with the waiver of liability for injuries sidesteps the issue of the waiver’s breadth, which is the overriding issue before this court.

[62] Second, the protection under section 9(1) of the CPA is a deemed warranty. The warranty that a supplier will supply services of a reasonably acceptable quality does not have to appear in any agreement. It is deemed. If the defendant is going to rely on the silence within its waiver as a measure of its own intention, then that measure has to work both ways and extend to the plaintiff’s intentions. If the defendant had no intention to derogate or abrogate from its lawful obligations under the CPA, then the defendant cannot very well say that the plaintiff intended to release the defendant from obligations that the defendant never sought to have released. If the defendant says that its waiver has nothing to do with the requirements of the CPA, it cannot at the same time argue that by accepting the defendant’s waiver the plaintiff knowingly and freely gave up his rights, including those protected by the CPA.

[63] Furthermore, when the defendant speaks of the plaintiff knowingly and freely accepting the terms of a contract, the defendant does not engage with the fundamental aspect of section 7(1) of the CPA which would make any such acceptance irrelevant. Section 7(1) is not concerned with the intentions of the parties. Section 9(4) expressly deals with the issue of contractual intent in relation to the legal treatment and protection of the CPA’s deemed warranty.

[64] The third difficulty with the defendant’s argument rests in the difference between what is said on the face of the waiver and how the defendant describes its intention behind the waiver and says the waiver should be interpreted. Counsel submitted that the waiver is about limiting the plaintiff’s right to sue Blue Mountain for injuries that he may sustain while using its facilities. He also submitted that the waiver relates to negligence claims and duty of care obligations. But the face of the waiver reveals something far more comprehensive. Beginning with its heading, there is an unqualified warning that by signing the agreement one will waive the right to sue. More significantly the text of the actual waiver speaks of a comprehensive release of “any and all liability for any loss, damage, expense or injury including death” as a result of “any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupiers’ Liability Act”. While I am prepared to accept that the waiver is focused on the subject of injuries, the waiver’s boundaries are not limited to negligence claims. They extend to all types of claims and, in so doing, intrude into the sphere of CPA protections.

[65] A further confusing aspect in the defendant’s position is the argument that the court should rely on its equitable discretion to uphold the waiver even if the waiver is held to violate the CPA. This submission, especially given the comprehensive language in the defendant’s waiver, amounts to a request that the defendant be allowed to enforce its waiver of liability for all claims, including those that might otherwise be pursued under the CPA. The defendant did not really expand on or identify the equitable principles which the court should use to, in effect, ignore the modern principles of statutory interpretation. In reality, much like the plaintiff argued over the unfairness of waivers to users of recreation premises, the defendant was really getting at the fairness and the need to preserve the OLA regime at all costs, even if that meant ignoring the requirements of the CPA. Stated differently, what the defendant was really asking this court to do was have the OLA protections override the CPA protections. Framing this objective as an equitable remedy was confusing and unhelpful.

[66] A final area of concern that ought to be addressed at the front end of my analysis relates to the defendant’s concern that claims arising out of a breach of warranty pursuant to the CPA could become a “back-door” to the litigation of claims from which, absent the CPA, occupiers such as the defendant would be protected from liability. The source of this concern rests in part with the way the plaintiff conflated the two causes of action in his claim and the blurring of the particulars as they relate to each cause, which I discussed above. The second source of this concern rests in the prospect that if premises fell below a reasonably acceptable quality standard as contemplated by the CPA, and a user were then injured and sought to advance a claim for damages, that claim would be allowed to proceed according to section 7(1) of the CPA, where absent that statute the occupier would be able to rely on its waiver for its primary defence.

[67] While I understand the reasons for the defendant’s concerns, they do not form a basis for this court to override the protections offered by the CPA. For starters, the proposed concern invites this court to speculate on a hypothetical situation that could arise at some point in the future. There are no facts before me to permit me to engage in any meaningful consideration of the likelihood of such a problem. Nor were there any submissions concerning the measures and the standard of care to be met for a ski hill to be deemed to be of a reasonably acceptable quality. In such circumstances, it would be imprudent to make any comment on what a ski hill of a reasonably acceptable quality would look like and what the standard of care might be. That may well be an issue for a future day.

[68] Most significantly, the defendant’s concerns echoes to a large degree the plaintiff’s conflation of the plaintiff’s causes of action, and the implications of each cause of action generally and on each other. At the risk of some repetition, it is necessary to set the proper context for the analysis to follow.

[69] As already noted above, the plaintiff has advanced two separate causes of action and therefore two separate theories of liability. The first theory is pleaded in tort. The second theory is pleaded in contract, as a breach of warranty claim. Each theory stands separate and apart from the other. To be proven, each theory will require separate and discreet findings of fact. In other words, a cause of action grounded in the CPA deemed warranty stands separate and apart from a cause of action in tort. A breach of warranty is in the nature of a breach of contract. If the breach of warranty is established, the remedy will be contractual and damages could become compensable as a consequence of that breach. The nature and scope of the damages may be framed by the parameters of the CPA, but there may be other common law measures. This was not something that was explored in any detail by the parties and it would be imprudent to say anything more. My reference is limited to outlining the outer contours of what the consideration of any breach of warranty claim would likely entail.

[70] It is also important to recognize that the deemed warranty in section 9(1) of the CPA has nothing to do with occupier’s rights under the OLA. There is therefore nothing in the CPA to suggest that a finding of a breach of warranty could be used to either give shape to or intrude into a tort claim. Nor could such a finding operate to void a waiver of liability in negligence and require the occupier to defend a claim that it would not otherwise have to defend under the terms of the OLA. In other words, a finding of a breach of warranty could not open a back door to enable the litigation of what would amount to a tort claim.

[71] As will be explained more fully below, the CPA was never intended to intrude into the OLA domain. It would truly be a novel approach to the fundamentals of pleadings to allow a tort claim to be threaded through the CPA claim through a kind of “back door”, as suggested by the defendant, when such a claim could not, by operation of the OLA waiver, be pursued through the “front-door”.

[72] Having regard for the various difficulties of both the plaintiff and the defendant, their respective objectives on this motion come down to the following. The plaintiff would like the court to apply section 7(1) of the CPA to vitiate the defendant’s comprehensive waiver in its entirety and therefore to pave the way for the plaintiff to pursue both of its causes of action. The defendant would like to the court to find that the provisions of the CPA, and in particular section 7(1), have no application to the defendant’s common law and statutory rights to rely on exculpatory waivers, with the result that its waiver in this case ought to be upheld in its entirety.

[73] To engage with these two fundamental positions, the court must consider the following issues:

a) What are the relevant statutory provisions under the OLA and the CPA? b) How are the specific sections of the OLA and the CPA to be interpreted and can they be read harmoniously to produce a just a fair meaning? c) Does the Defendant’s waiver offend the requirements of the CPA? d) Can s.7(1) of the CPA be relied upon to strike the defendant’s waiver entirely? e) If there are flaws in the defendant’s waiver, can they be cured?

a) What are the relevant statutory provisions under the OLA and the CPA?

i. OLA Provisions

[74] The relevant sections of the OLA that are engage by the overriding issue before this court are the following:

Definitions

1. In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes,

(a) water, (b) ships and vessels, (c) trailers and portable structures designed or used for residence, business or shelter, (d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. O.2, s. 1.

Common law duty of care superseded

2. 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. R.S.O. 1990, c. O.2, s. 2.

Occupier’s duty

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.

Idem

(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 the premises.

Idem

(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. R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

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.

Criminal activity

(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Trespass and permitted recreational activity

(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(a) where the entry is prohibited under the Trespass to Property Act; (b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or (c) where the entry is for the purpose of a recreational activity and, (i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and (ii) the person is not being provided with living accommodation by the occupier.

Same

(3.1) For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of subclause (3) (c) (i):

1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency. 2016, c. 8, Sched. 3, s. 1 (1).

Premises referred to in subs. (3)

(4) The premises referred to in subsection (3) are,

(a) a rural premises that is, (i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds, (ii) vacant or undeveloped premises, (iii) forested or wilderness premises; (b) golf courses when not open for playing; (c) utility rights-of-way and corridors, excluding structures located thereon; (d) unopened road allowances; (e) private roads reasonably marked by notice as such; (f) recreational trails reasonably marked by notice as such; and (g) portage routes. R.S.O. 1990, c. O.2, s. 4; 2016, c. 8, Sched. 3, s. 1 (2).

Restriction of duty or liability

5. (1) The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.

Extension of liability by contract

(2) A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.

Reasonable steps to inform

(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed. R.S.O. 1990, c. O.2, s. 5.

ii. CPA Provisions

[75] The sections of the CPA that are relevant to this analysis are as follows:

Interpretation

1. In this Act,

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

“consumer agreement” means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment;

“consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement;

“services” means anything other than goods, including any service, right, entitlement or benefit;

“supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier;

Rights reserved

6. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law. 2002, c. 30, Sched. A, s. 6.

No waiver of substantive and procedural rights

7. (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary. 2002, c. 30, Sched. A, s. 7 (1).

Limitation on effect of term requiring arbitration

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act. 2002, c. 30, Sched. A, s. 7 (2).

Procedure to resolve dispute

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law. 2002, c. 30, Sched. A, s. 7 (3).

Quality of services

9. (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality. 2002, c. 30, Sched. A, s. 9 (1).

Quality of goods

(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement. 2002, c. 30, Sched. A, s. 9 (2).

Same

(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. 2002, c. 30, Sched. A, s. 9 (3).

Same

(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. 2002, c. 30, Sched. A, s. 9 (4).

Consumer agreements not binding

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

Consumer may order consumer bound

(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.

b) How are the specific sections of the OLA and the CPA to be interpreted and can they be read harmoniously to produce a just a fair meaning?

[76] Before we can consider the defendant’s waiver, it is essential to consider the particular elements of each statute, and then to determine whether, when read together in relation to the defendant’s waiver, they give rise to a conflict or whether they can be read harmoniously to produce a just and fair meaning. To engage in such an analysis, it is essential to begin with a consideration of the basic principles of statutory interpretation.

[77] Elmer Driegder’s modern principle of statutory interpretation has been accepted and applied by the Supreme Court of Canada as the point of departure for any legislative interpretation. In Rizzo v. Rizzo Shoes Ltd. (Re), [1990] 1 S.C.R. 27, at para.21 the SCC noted:

Today there is only one principle or approach, namely, 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.

[78] In Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd. (2000), 2000 ONCA 5647, 47 O.R. (3d) 171 (C.A.), the Ontario Court of appeal noted:

As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in its total context… The court’s interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature’s intent, and produce a reasonable and just meaning. [Sullivan, Driedger on the Construction of Statutes 3rd ed. (Toronto: Butterworths, 1994), at p.131]. The Supreme Court has repeatedly affirmed this approach to statutory interpretation, most recently in R v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688 at p.704, where Cory and Iacobucci JJ. wrote:

As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. [emphasis added]

[79] Statutory interpretation therefore comes down to a consideration of the following elements: i. textual meaning, ii. legislative intent, and iii. compliance with the established legal norms, see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis Canada, 2014), at pp. 8-9.

[80] Beginning with the relevant sections of the OLA, and in light of the plaintiff’s express distinction between occupiers of a singular character and occupiers of a dual character as also suppliers, I note that from the perspective of the OLA, the legislation does not draw out any such distinction. The definition of an occupier is inclusive and can be interpreted to include and apply to occupiers who supply services.

[81] Similarly the definition of premises is very broad. Contrary to the plaintiff’s submissions that premises ought to be interpreted narrowly and that the definition does not include ski resorts, amusement parks and other forms of commercial or recreational land, the definition of premises includes “land and structures” and is cast in very broad terms. There is no basis to explore a legal path that would exclude ski resorts from the purview of the OLA. I agree with the defendant that it is trite law in Canada that an area such as a ski resort is properly considered a “premises” within the meaning of the OLA.

[82] The exculpatory provisions of the statute are outlined in sections 3(3) and 5(3). It is most significant that these sections focus on the occupier’s duty of care and the exclusion from liability for negligence. The regime concerns breaches of an occupier’s duty of care and allows an occupier to restrict, modify, or exclude an occupier’s duty altogether. Nothing in these sections extends to causes of action outside of the tort regime and an occupier’s negligence.

[83] The legislative intent for this act grew out of the need for the Legislature to clarify the complex, arcane and inadequate common law rules that concerned the liability of occupiers of property to trespassers, licensees and invitees, see the Ontario Law Reform Commission’s 1972 Report on Occupiers’ Liability and Jensen v. Fit City Health Centre Inc., 2015 ONSC 7091. In the result, the OLA came to assimilate the common law of occupiers’ liability with the modern law of negligence, see Waldick v. Malcolm (1989), 1991 ONCA 8347, 70 O.R. (2d) 717 (C.A.).

[84] It is noted that as a comprehensive piece of legislation, the OLA does not extend to insulate occupiers from other liabilities arising outside its four corners. The OLA requirements and provisions are specific to the law of negligence and liability arising from a breach in an occupier’s duty of care.

[85] Turning to the CPA, I begin with the observation that, contrary to the defendant’s submission that the CPA be interpreted narrowly to apply to unscrupulous supplier and fraudsters and scam artists, the definitions for consumers, consumer agreements, services and suppliers, are cast in the broadest terms possible. There are no qualifying sections or definitions to limit the ambit of the CPA to a segment of the market, such as fraudsters and scam artists. 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.

[86] Support for this conclusion lies in the legislative history to the CPA. The CPA was first read by the Ontario Legislature on September 26, 2002, and was introduced as Bill 180. The legislation received Royal Assent on December 13, 2002 and came into force on July 30, 2005. One of the legislative purposes was to create a single piece of consumer protection legislation by combining six overlapping consumer protection statutes: the Business Practices Act, R.S.O. 1990, c. B.18, the Consumer Protection Act, 2002, S.O. 2002, c. 30, the Consumer Protection Bureau Act, R.S.O. 1990, c. C.32, the Loan Brokers Act, 1994, S.O. 1994, c. 22, the Motor Vehicle Repair Act, R.S.O. 1990, c. M.43, and the Prepaid Services Act, R.S.O. 1990, c. P.22.

[87] As the Bill worked its way through the various readings, there were references to the need to introduce legislation that would protect consumers from changes in the economy and the various ways of doing business, particularly as those related to e-commerce and internet transactions, see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 49B (28 October 2002) at 2527, and No. 58A (19 November 2002) at 3024, 3025. Although the Hansard is not received as evidence of legislative intent and should not be given undue weight, both the Hansard and the Explanatory Notes to Bill 180 are relevant to both the background and purpose of the legislation, see R v. Morgentaler, 1993 SCC 74, [1993] S.C.J. No. 95, at para. 28.

[88] Specifically with respect to Consumer Rights and Warranties, in Part II of the explanatory notes included in Bill 180, it was noted that nothing in the CPA is to be interpreted to limit any right that services are of a reasonably acceptable quality, or remedy related to such right, and that ambiguities in any consumer agreement ought to be interpreted in favour of the consumer.

[89] Moving to the specifics of the CPA, its specific and overriding objective is the protection of consumers. Section 7(1) recognizes that the substantive and procedural rights pursuant to the CPA apply despite any agreement or waiver. It relates to the protection of rights anticipated only by the CPA. The waiver provisions of section 7(1) are directed at protecting a consumer’s substantive and procedural rights under the Act. The particular right at issue on this motion is the deemed warranty that a consumer shall receive services of a “reasonably acceptable quality” as articulated in section 9(1).

[90] It is expressly noted that section 7(1) does not seek to look behind the existence of a waiver. The section says the substantive and procedural rights under the Act apply “despite any agreement or waiver to the contrary”. In other words, however an agreement or a waiver came to be and by implication, whatever the intentions of the parties in question might have been, the rights under the CPA will survive. This approach is in keeping with the CPA’s overriding legislative objective to protect consumers. Whether or not consumers consider the implications of signing off on a waiver, they will be extended a level of protection as defined by the deemed warranty.

[91] Section 9(1) enables consumers to pursue a cause of action and to recover damages if they are able to prove that the supplier breached the deemed warranty and failed to provide services of a “reasonably acceptable quality”.

[92] Sections 9(3) and 9(4) of the CPA are significant for the approaches to be taken in relation to any terms of a consumer agreement or other document that would purport to negate the deemed warranty contemplated by section 9(1). According to section 9(3), the particular offending term or acknowledgment that would have the effect of cancelling out the deemed warranty is considered void. According to section 9(4), the offending term or agreement may be severed from an overall agreement and the offending term shall not be evidence of any intent to negate the deemed warranty.

[93] These sections do not speak of a waiver but rather of terms within an agreement. They offer guidance on how a warranty is to be preserved in the event that a term of an agreement seeks to cancel it out. In either instance the focus is on preserving the deemed warranty. It is noted that these sections do not contemplate the voiding of a waiver but rather identify ways of addressing or isolating those terms to an agreement that would otherwise undermine the deemed warranty. This is significant because in a waiver such as the defendant’s, which references multiple potential causes of action, in effect there are multiple waivers. Those specific waivers that do not touch on the CPA protections would not be affected by any remedy designed to protect the CPA’s deemed warranty. The goal would be to address those terms in the waiver that concern the protections afforded by the CPA.

[94] Section 93 is also instructive in that it identifies the circumstances where a consumer agreement would survive a challenge even if it offended aspects of the CPA. It is noteworthy that the deemed warranty is not referenced. It is also significant that this section imports, once again, the notion of severability as it speaks of a consumer being bound by all or a portion or portions of a consumer agreement.

[95] Finally, under section 93(2), the circumstances where a court might decide that a consumer be bound by an agreement despite anything in the CPA are limited to instances where it would be inequitable for the consumer not to be bound. To date, the cases that have considered the application of this section have related to instances where consumers received the full benefits of a service or goods and then refused to pay the supplier. Reliance on the protections of the CPA would result in a windfall to the consumer, something that was never anticipated by the legislation. In the case before this court, there is no windfall to the plaintiff from the services he accessed at Blue Mountain. Even though the defendant suggested that this section might assist the court, it has no application to my analysis.

[96] Turning to the relationship between the two statutory regimes, it is evident that the OLA and the CPA have very different objectives and purposes. The OLA is there to protect occupiers from certain liabilities. The CPA is narrowly focused on the protections to be afforded to consumers. The deemed warranty under the CPA imposes an obligation on suppliers to meet a reasonably acceptable quality standard. Neither party provided the court with any cases where that standard was fleshed out and, accordingly, it would be imprudent to make any finding on the specific meaning of that term other than to note that the warranty imports the standard of reasonableness.

[97] It is also significant that there is no suggestion in either the debates leading up to the passing of the legislation or in the actual drafting of the legislation that the OLA protections extended to occupiers and the underlying tort regime were to be caught by the CPA or that the Legislature had occupiers in mind when it passed the CPA; it did not. Unscrupulous suppliers were the target of the legislation. The tort regime under the OLA and the use of waivers of liability by occupiers have long been accepted as reasonable and entrenched in the supply of recreational services such as ski hills. They also predated the passing of the CPA. Although the definition of what a skill hill of a reasonably acceptable quality was not before me, given that counsel for the defendant raised questions about what that would look like, without making an express finding, I would expect that the acceptance of the jurisprudence of the OLA regime as reasonable would have a bearing on such an assessment.

[98] Against such a statutory framework and backdrop, and having regard for the need to consider the two statutes in a manner that promotes a fair and just interpretation of both statutes, I come to the following conclusions.

[99] 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.

[100] The argument by the defendant that a specific provision should apply over a general one, with the further submission that the OLA is specific to occupiers while the CPA is general to all consumers, is not persuasive or helpful. The principle generalia specialibus non derogant, as a principle, is not disputed. But the characterization of what is specific and what is general in the context of these two provincial statutes is arguable. An equally compelling argument to be made is that the disallowance of waivers in the CPA is specific to the protection of rights and obligations under the CPA and does not extend to any type of waivers, while the OLA applies generally to all occupiers, whether or not they supply any services. In other words, it is difficult to differentiate between what is specific and what is general.

[101] Where a waiver is limited in scope to the four corners of what the OLA intended to protect, such waivers would not be impacted by anything in the CPA and would apply with full force.

[102] Where a waiver goes beyond the exculpatory parameters permitted by the OLA and, in particular, purports to include terms that touch on the deemed warranty anticipated by the CPA, the waiver exceeds the objectives of the OLA and presents with a defect. That raises the question of how to go about curing the defect in a fair and just manner.

[103] When considering an appropriate remedy, it is important to note that the CPA does not contemplate the outright voiding of a waiver in its totality. In section 7(1), the protections offered by the CPA survive despite the existence of a waiver. If the complete waiver were to fall, the drafters of the legislation could have said so. Similarly, in sections 9(3) and 9(4), the drafters focused on the particular terms of an agreement and the implications for those terms if they offended the substantive and procedural protections of the CPA. The approaches of voiding or severing out terms of an agreement to preserve the CPA protections are instructive in that they identify remedies that would serve to isolate the offending terms of an agreement from the balance of the agreement. Technically, if the whole agreement had as its only content the negation of the protections under the CPA, there would be nothing to sever and the whole agreement would be void. But a waiver that seeks to protect an occupier from a multitude of claims amounts to multiple waivers and must be approaching in that way with respect to the identification of an appropriate remedy.

c) Does the Defendant’s Waiver offend the requirements of the CPA?

[104] As already discussed above in my overriding observations concerning the defendant’s position in this motion, the defendant’s waiver is a comprehensive release of “any and all liability for any loss, damage, expense or injury including death” as a result of “any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care, including any duty of care owed under the Occupiers’ Liability Act”.

[105] Even though the defendant’s counsel urged the court to interpret the waiver and its scope in relation to negligence claims and in terms of its objective to insulate occupiers from any liability arising out of injuries an individual might sustain, the comprehensive terms, “any and all liability for any loss” and “any cause whatsoever”, the reference to breach of contract, and the inclusive reference to the Occupiers’ Liability Act, leave the waiver vulnerable and open to a much broader interpretation. The specific references to “any type of loss or damage” and “breach of contract” are the specific terms within the waiver that engage the protections contemplated by the CPA. A breach of the deemed warranty in section 9(1) of the CPA would give rise to the recourse ordinarily available to a party for breach of contract. Such a breach, if proven, would permit the recovery of damages. To the extent that the defendant’s waiver purports to preclude liability for breach of the deemed warranty, that part of the waiver is precluded by section 7(1) of the CPA.

[106] The court can take little comfort from the submission that the defendant never intended to intrude into the protection extended by the CPA, and that the waiver is silent on the quality of its services, for two reasons. First, the defendant’s intention, as reflected on the face of the waiver, covers off any and all liability from whatever cause. The apparent intention behind the waiver is not limited to negligence claims. Secondly, the CPA is not concerned with express representations. The warranty of a service that is of a reasonably acceptable quality is a deemed warranty and does not require any express reference in an agreement. Whether or not the defendant refers to the quality of services provided in its waiver is of no importance to assessing the waiver’s interplay with the requirements of the CPA.

[107] In the result, the terms within the defendant’s waiver that relate to the CPA protections offend the requirements of the CPA and give rise to the question of how best to address that defect. But before turning to that question, it is appropriate to consider whether the whole waiver might be voided by operation of section 7(1). If it is, there would be no reason to consider a cure specific to the particular offending terms. If it is not, then an appropriate cure responsive to the requirements of the OLA and the CPA would be crucial to the conclusion of this motion.

d) Can section 7(1) of the CPA be relied upon to strike the defendant’s waiver entirely?

[108] The short answer to this question is ‘no’. Section 7(1) is concerned with the implications of waivers on the protections contemplated by the CPA. It does not say that waivers generally are unfair to consumers, whatever their provenance or their purpose, and should be voided. Section 7(1) might have been a way to strike the defendant’s waiver if the protection in section 9(1) extended to waivers, regardless of their provenance. However, section 7(1) is tied to the deemed warranty of services that are of “a reasonably acceptable quality”. A waiver that touches exclusively on CPA protections would be unenforceable. Where there are multiple terms in an agreement the CPA does not void the entire agreement but offers ways to preserve the CPA warranty. By analogy where, as in this case, the waiver amounts to a cluster of waivers, only those terms that touch on the CPA protections need to be addressed. Nothing in the CPA regime suggests that a whole agreement or a comprehensive waiver would become void if it disregarded CPA protections. There would therefore be no basis for the court to use section 7(1) to strike the defendant’s waiver in its entirety.

[109] It should be noted that section 7(1) is also silent on what happens to offending waivers or agreements. The drafters of the legislation could have stated that any offending waivers or agreements are void but instead chose to sidestep the issue by focusing on protecting the substantive and procedural rights under the CPA, “despite” any agreement or waiver. That, therefore, is an additional reason that the court could not rely on section 7(1) to void the defendant’s entire waiver.

[110] Finally, this conclusion is consistent with the recognition that at no time was there any intention for the CPA to engage with negligence claims or with the provisions and protections extended to occupiers in the OLA. The legislative intention was focused on the protection of consumers from unscrupulous suppliers. In this regard, it will be open to the plaintiff to pursue the issue of whether the defendant could be characterized as an unscrupulous supplier.

[111] To vitiate the entire waiver would have the effect of derogating the provisions of the OLA. It would therefore be most disharmonious for this court to rely on section 7(1) to intrude on OLA territory and vitiate the defendant’s waiver in its entirety. In short, such an outcome would be an unjust and unfair result.

e) If there are flaws in the defendant’s waiver, can they be cured?

[112] Having concluded that the defendant’s waiver is flawed insofar as it intrudes into the CPA protections the next question is to consider the implications of that finding on the balance of the waiver.

[113] Sections 7(1), 9(3) and 9(4) of the CPA offer some guidance on this issue. Section 7(1) does not void any waiver but effectively makes it unenforceable as against CPA claims. Section 9(3) states that any term of an agreement or acknowledgement that purports to negate a deemed condition or warranty under the CPA is void. Section 9(4) states that if the term that purports to negate the deemed warranty contemplated by the CPA is contained in an agreement, then that term is severable from the agreement.

[114] These sections of the CPA could be interpreted to provide a complete answer on the way to approach the defendant’s waiver. Sections 7(1) and 9(4) point to some type of severance. Section 9(4) talks of the severability of terms to an agreement, but does not go beyond that to prescribe the appropriate method of severability. The differentiation between the express reference to a waiver in section 7(1) and the reference to terms of an agreement in sections 9(3) and 9(4) is also noted. What is significant about these sections is the identification of the kinds of curative tools and the scope of their application so as to protect both an agreement at issue and the CPA deemed warranty. The clear implication of these sections is that the CPA did not have as its objective the voiding of an agreement in its entirety. The express reference to intentions in section 9(4) also suggests that the legislative drafters were alive to the implications and basic contractual principles that underlie contractual relations.

[115] Given these observations and the CPA’s express identification of certain curative tools, it is useful to consider the general principles that govern severance in the context of contracts.

[116] I begin by noting that Canadian courts have taken divergent approaches on whether offensive portions of contractual clauses can be severed from the remainder of the provision. In Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009] 1 S.C.R. 157, at para. 29, the Supreme Court of Canada described the two approaches to severance:

[29] Where severance is permitted, there appears to be two types: “blue-pencil” severance and “notional” severance. Both types of severance have been applied in limited circumstances to remove illegal features of a contract so as to render the contract in conformity with the law. Blue-pencil severance was described in Attwood v. Lamont, [1920] 3 K.B. 571 (C.A.), by Lord Sterndale as “effected when the part severed can be removed by running a blue pencil through it” (p. 578). In Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, [2004] 1 S.C.R. 249, Bastarache J., in dissent, described this form of severance at para. 57:

Under the blue-pencil test, severance is only possible if the judge can strike out, by drawing a line through, the portion of the contract they want to remove, leaving the portions that are not tainted by illegality, without affecting the meaning of the part remaining.

[30] Notional severance involves reading down an illegal provision in a contract that would be unenforceable in order to make it legal and enforceable (see Transport, at para. 2). In Transport, the contract provided that interest was to be charged at a rate exceeding 60 percent contrary to s. 347 of the Criminal Code. There was no evidence of an intention to contravene this provision, and this was not a case of loan sharking. Arbour J. applied the doctrine of notional severance to effectively read down the interest rate to the legal statutory maximum of 60 percent.

[117] In the context of Shafron, which involved an unreasonably wide restrictive covenant in an employment contract, the court was of the view that notional severance was inappropriate. It ruled that the blue pencil rule was appropriate in cases of restrictive covenants, but declined to apply it in that case.

[118] In Transport North American Express Inc. v. New Solutions Financial Corp., referenced above, the court held that notional severance was more appropriate than the blue pencil rule to read down a usurious interest rate to the maximum allowed by the Criminal Code.

[119] In 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152, 383 D.L.R. (4th) 361, a franchisor included in its franchise agreement a general release of all claims: see 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2014 ONSC 600, 119 O.R. (3d), at para. 2, despite a voiding provision, similar to s. 7(1) of the CPA, found in s. 11 of the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3. The Court of Appeal reviewed the general principles of severance, noting that “[w]here severance is appropriate, courts choose the technique that ‘in light of the particular contractual context involved, would most appropriately cure the illegality while remaining otherwise as close as possible to the intentions of the parties expressed in the agreement’” (at para. 36). In the context of that case the court held that the offending provisions could not be severed because:

1. The blue pencil rule could not be applied because there was no phrase that could be struck to enable the clause to require a release of only non-Arthur Wishart Act claims (at para. 39).
2. Notional severance was not appropriate because it could undermine the purpose and policy of the voiding provision in the Arthur Wishart Act, which aims to protect franchisees against more sophisticated franchisors.

[120] In Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] S.C.R. 531, the Supreme Court of Canada considered the British Columbia Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (BPCPA). The BPCPA contains, in section 3, a waiver provision similar to section 7(1) of the CPA. The Court held that, as consumer protection legislation, the BPCPA should be interpreted generously in favour of consumers. In that case, an arbitration clause in a consumer contract was rendered void because a section of the BPCPA provided recourse to the Supreme Court of British Columbia. Telus argued that a concurrent class action waiver could be severed from the arbitration clause as a whole. The court held, at paras. 45-47:

[45] [A]s a matter of interpretation, the TELUS class action waiver is not severable from the arbitration clause as a whole, and as a whole it is rendered void by s. 3 of the BPCPA.

[46] The TELUS clause is structured internally to make the class action waiver dependent on the arbitration provision. The wording makes it clear that it is only by virtue of their agreement to arbitrate that consumers bar themselves from a class action. The undertakings are linked by the term “[b]y so agreeing”. What precedes (the arbitration clause) is the foundation for what follows (the class action waiver). If the arbitration provision is rendered invalid by s. 3 of the BPCPA, as I believe to be the case, the dependent class action waiver falls with it. The unitary nature of the clause is reinforced to some extent by its title, which is “Arbitration”, not “Arbitration and Class Action Waiver”.

[47] I take this language to be clear. However, if there is any ambiguity in the TELUS clause, it is resolved in favour of Ms. Seidel’s right of access to the court by the principles of contra proferentum. “Whoever holds the pen creates the ambiguity and must live with the consequences”: Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59, [2009] 3 S.C.R. 605, at para. 25; see also, ACS Public Sector Solutions, at para. 50, per Donald J.A. This, the Court said in Bauer v. Bank of Montreal, 1980 SCC 12, [1980] 2 S.C.R. 102, “is particularly true where the clause is found in a standard printed form of contract, frequently termed a contract of adhesion, which is presented by one party to the other as the basis of their transaction” (p. 108).

[121] Turning to this case, and mindful of the caution with which courts approach the subject of the severance of contractual terms, I begin with the conclusion that the defendant’s waiver would not be easily amenable to blue-lining. Although the simplest way of curing the defect in the waiver, as it relates to the CPA protections, could be to strike out by way of blue-lining the reference to “breach of contract”, that would not be either thorough or sufficient. To make the severance meaningful, something would have to be said about the phrase “any and all liability for any loss, damage”. The heading to the whole agreement that references the waiver of the right to sue would also have to be addressed, and that could not be easily struck out.

[122] The next question is to consider whether the waiver of liability, in relation to CPA claims, could be notionally severed from the balance of the waiver. Although none of the cases dealing with the principles on severance are entirely on point, Transport North America Express Inc. and Cora Franchise Group both rely on the four factors, first discussed in William E. Thomson Associates Inc. v. Carpenter, to consider when determining whether severance should be applied. Adapted to the analysis required for this case, they are the following:

1. Whether the purpose or the policy of section 7(1) of the CPA would be subverted by severance;
2. Whether the parties entered into the agreement for an illegal purpose;
3. The relative bargaining position of the parties and their conduct in reaching an agreement; and
4. The potential for the plaintiff to enjoy an unjustified windfall.

[123] Beginning with the first question, as an overriding proposition, the resort to severance in this case would have a dual purpose designed to given expression to the objectives of both the OLA and the CPA. In other words, the dual objective would be to both preserve all aspects of the defendant’s waiver that are not affected by the prohibition contained in section 7(1) of the CPA and the protections afforded to consumers as contemplated by the CPA.

[124] A reading out of any CPA claim from the defendant’s waiver would not undermine the purpose or policy of the CPA; to the contrary, it would enhance it. As long as the defendant’s waiver includes within its ambit potential CPA claims, the plaintiff would not be able to access the protections contemplated by the CPA because he would be faced with the implications of a comprehensive waiver of liability for such protections. As it is not disputed that the purpose of the CPA is to protect consumers, a severance of the CPA claims from the defendant’s waiver would allow the plaintiff to pursue his breach of warranty claim independently of his negligence claim. Such an approach would effectively give effect to the objectives and purpose of both the CPA and the OLA.

[125] With respect to the second question, the parties did not enter into the agreement for an illegal purpose and as such that question is not a factor for consideration.

[126] The third question concerning the relative bargaining position of the parties and their conduct in reaching an agreement is of little assistance. The law on the balance of power in the context of recreational waivers is settled. It has rejected the notion of a power imbalance between those who wish to engage in inherently risky recreational activities that are controlled or operated by another, see Dyck v. Manitoba Snowmobile Assn. Inc., [1985] 2 S.C.R. 589, at para. 10, Arif v. Li, 2016 ONSC 4579, and Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122, [2012] B.C.J. No. 504, at para. 33. Although the consumer agreement is a contract of adhesion, users of recreational facilities have the option to purchase a ticket or not. On the limited facts before this court, what is agreed is that the plaintiff voluntarily purchased the season’s pass and agreed to the waiver for the recreational use of the defendant’s property.

[127] A variant of this factor in the context of this case goes to the issue of whether the parties understood the defendant’s waiver to relate to just negligence claims arising out of injuries at the defendant’s ski resort or whether they contemplated an express waiver of the CPA protections. Given the defendant’s submission that CPA liability was not within its contemplation, and that the waiver does not concern CPA requirement, the defendant cannot very well advance the claim that the plaintiff knowingly and freely relinquished his CPA rights when he signed the defendant’s consumer agreement that included the comprehensive waiver. In this respect, the severing of the potential CPA claims from the defendant’s waiver would realign the defendant’s waiver with its intentions and with what both parties would have understood the waiver to cover.

[128] The fourth factor relating to a potential windfall to the plaintiff does not arise. The proposed notional severance would effectively give expression to section 7(1) of the CPA.

[129] In light of the foregoing analysis, I conclude that a notional severance of any CPA claims that the plaintiff could advance against the defendant from the defendant’s waiver is most responsive to the requirements of both the OLA and the CPA. It also allows for an interpretation of the defendant’s waiver that is fair and just to both the protections contemplated by the OLA for occupiers and those of the CPA for consumers. Such a reading down of the waiver would be least disruptive to both parties and would allow them to capitalize on their respective protections.

[130] A notional severance of the CPA claims from the defendant’s waiver is also consistent with the CPA’s objective to protect consumers’ substantive and procedural rights. To strike the whole waiver, when the waiver contemplates more than just CPA claims, would be contrary to the legislative intent of the CPA. The aim is to protect the requirements of section 7(1) and nothing else.

[131] The portion of defendant’s waiver that abrogates the plaintiff’s substantive and procedural rights under the CPA, in this case, the deemed warranty found in section 9(1), is unenforceable by operation of section 7(1) of the CPA. As such, relying on the doctrine of notional severance, I am reading down the defendant’s waiver. The waiver to exclude claims involving substantive and procedural rights under the CPA. The remainder of the waiver shall remain enforceable.

Conclusion

[132] In response to the plaintiff’s motion for a finding that section 7(1) of the CPA be applied to vitiate in its entirety the defendant’s comprehensive waiver/release of liability, I conclude the following:

1. By operation of section 7(1) of the CPA the defendant cannot disclaim liability for any breach of the deemed warranty contemplated by section 9(1) of the CPA.
2. The defendant’s waiver is read down in accordance with the doctrine of notional severance to exclude from its ambit claims that involve the protection of substantive and procedural rights contemplated by the CPA. The remainder of the waiver, remains enforceable.
3. This approach will allow the plaintiff to pursue two distinct causes of action, the first being the negligence claim and the second being a breach of warranty. The plaintiff’s negligence claim will be subject to the defendant’s waiver. Consistent with the terms of the CPA, the plaintiff’s breach of warranty claim will not be subject to any waiver.

[133] Insofar as costs are concerned, the parties are encouraged to come to an agreement, failing which, the defendant shall have until January 20, 2017 to file submissions and the plaintiff shall have until February 3, 2017 to respond. The respective submissions shall be limited to three pages double-spaced in addition to a bill of costs.

Tzimas, J. Date: January 6, 2017

COURT FILE NO.: CV-11-4023 DATE: 20170106 ONTARIO SUPERIOR COURT OF JUSTICE DAVID SCHNARR, Plaintiff – and – BLUE MOUNTAIN RESORTS, Defendant ENDORSEMENT Tzimas J. Released: January 6, 2017