Court File and Parties

COURT FILE NO.: 12-0553T DATE: 20170113 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ELIZABETH WOODHOUSE Plaintiff – and – SNOW VALLEY RESORTS (1987) LTD, AKA SKI SNOW VALLEY (BARRIE); SNOW VALLEY BARRIE; SNOW VALLEY SKI RESORT; SNOW VALLEY, 717350 ONTARIO LTD. Defendant

Counsel: Marc Lemieux, for the Plaintiff Edward Chadderton, for the Defendants

HEARD: October 21, 2016

DECISION ON SPECIAL CASE

J.R. McCARTHY J.:

[1] The parties to the action have concurred in stating certain questions of law for the opinion of the court by way of a special case under Rule 22 of the Rules of Civil Procedure : R.R.O. 1990, Reg. 194. The rules require that I be bound by the facts stated. Although I am entitled to draw reasonable inferences from the facts or documents agreed upon, I am not entitled to make assumptions not supported by the facts.

Agreed Set of Facts

[2] The Defendant (“referred to as Snow Valley”) operates a ski facility in the Township of Springwater in the County of Simcoe. On December 23, 2008, the Plaintiff attended at Snow Valley with her spouse and grandson to go skiing. She purchased a beginner ski package which included a lift ticket (“the lift ticket”), equipment rental and a lesson. The lift ticket issued to her contained an exclusion or release of liability. As well, the Plaintiff executed a “Rental Agreement & Release of Liability”, (hereinafter referred to as the “rental agreement”) which contained a section entitled “Waiver of Claims”. Although the waiver of claims section was never explained to the Plaintiff, she admitted to having reviewed the wording of it on Snow Valley’s website prior to attending the facility on December 23, 2008. The Plaintiff was unaware of the Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sched. A (“CPA”) or any rights it might afford her on or prior to the date in question. Snow Valley did not disclose or inform the Plaintiff of any rights she might have under the CPA. After taking the ski lesson, the Plaintiff and her family made use of the ski facilities including the tow rope. While using the tow rope, the Plaintiff claims to have sustained personal injuries.

Documents

[3] The following documents form the evidentiary record for the special case:

a. The pleadings and court endorsements; b. The rental agreement & release of liability executed on December 23, 2008; c. A copy of the relevant lift ticket containing the exclusion or release of liability; and d. The guest sign-in sheets for the date in question.

The Questions

[4] The parties pose five questions for the opinion of the court:

1. Does the CPA apply to the entire transaction of December 23, 2008, including the lift ticket and the executed rental agreement?
2. If the answer to Question 1 is yes, are the release of liability on the lift ticket and in the executed rental agreement, which include any right of action resulting from the negligent provision of services by Snow Valley, its servants, and employees, rendered void in law and unenforceable by ss. 9(1) and (3) of the CPA?
3. If the answer to Question 2 is yes, are the release of liability on the lift ticket and in the executed rental agreement rendered void in law as a whole or are the offending terms or acknowledgments contained therein severable pursuant to s. 9(4) of the CPA?
4. Can the Plaintiff nevertheless be bound by the terms of the release of liability on the lift ticket and in the executed rental agreement by exercise of the court’s discretion under s. 93(2) of the CPA?
5. If the provisions of the CPA negate the application of the waivers, do the provisions of the Occupiers Liability Act , R.S.O. 1990, c. O.2 (“OLA”) supersede those of the CPA to allow Snow Valley to rely on the waivers?

[5] The wording in the release of liability on the lift ticket is set out below:

NOTICE TO ALL USERS OF THESE FACILITIES

EXCLUSION OF LIABILITY-ASSUMPTION OF RISK- JURISDICTION

THESE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT

PLEASE READ CAREFULLY

As a condition of the use of the ski area and other facilities the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to the risks, dangers and hazards of skiing, snowboarding, cycling, tubing, hiking and all other recreational activities; to use the ski lifts, collision with natural or manmade object or with skiers, snowboarders, cyclists, hikers, tubes or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract or breach of statutory duty of care on the part of Snow Valley Resorts (1987) Ltd and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the "Ski Area Operator"). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto. The Ticket Holder agrees that any litigation involving the Ski Area Operator shall be brought solely within the Province of Ontario and shall be within the exclusive jurisdiction of the Courts of the Province of Ontario. The Ticket Holder further agrees that these conditions and any rights, duties and obligations as between the Ski Area Operator and the Ticket Holder shall be governed by and interpreted solely in accordance with the laws of the Province of Ontario and in no other jurisdiction.

THE SKI AREA OPERATOR'S LIABILITY IS EXCLUDED BY THESE CONDITIONS

PLEASE ADHERE TO THE ALPINE RESPONSIBILITY CODE AND BE RESPONSIBLE FOR YOUR OWN SAFETY IN ALL ACTIVITIES.

[6] The wording in the waiver of claims section of the rental agreement is set out below:

WAIVER OF CLAIMS

I HEREBY AGREE; 1. TO WAIVE ANY AND ALL CLAIMS that I have or may have in the future against Snow Valley Resorts (1987) Ltd. and the manufacturer and distributor of the Equipment and their directors, officers, employees, agents and representatives (all of whom are hereinafter collectively referred to as "the Releasees") and 2. TO RELEASE THE RELEASEES from any and all liability for any loss, damage, injury or expense that it may suffer, or that my next of kin may suffer as a result of or arising out of any aspect of my use of the Equipment.

DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY ON THE PART OF THE RELEASEES in respect of the design, manufacture, selection, installation, maintenance, or adjustment of the equipment, or in respect of the provision of or the failure to provide any warnings, directions, instructions or guidance as to the use of the Equipment. 3. That Snow Valley Resorts (1987) Ltd. is [ its ] employees and agents, shall not be liable for any such personal injury, death or property loss and releases Snow Valley Resorts (1987) Ltd., its employees or agents and waives all claims with respect thereto.

[7] The relevant statutory provisions for consideration in this case are set out below:

CPA

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;

“goods” means any type of property;

“payment” means consideration of any kind, including an initiation fee;

“regulations” means regulations made under this Act;

“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;

Application

2. (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

Exceptions

(2) This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Loan and Trust Corporations Act or the Mortgage Brokerages, Lenders and Administrators Act, 2006;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Residential Tenancies Act, 2006.

Rights reserved

6. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law.

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.

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.

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.

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.

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.

OLA

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

(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.

Reasonable steps to inform

5. (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.

The Plaintiff’s Position

[8] The Plaintiff argues that s. 9(3) of CPA operates to defeat any effort by Snow Valley to disclaim or waive its own negligence or that of its employees or agents in the consumer agreement in question. In the case at bar, the waivers and limitations on liability for the goods and services supplied in the ski package constitute terms and acknowledgments that purport to negate or vary the supplier’s deemed warranty under s. 9(1) to supply services of a reasonably acceptable quality. Those terms and acknowledgments contravene the express prohibition in s. 9(3); by operation of that subsection, they are void at law.

[9] Sections 9(1) and (3) should be afforded not only their plain and obvious meanings but also a measure of some importance given that they are found within the part of the CPA dealing with consumer rights and warranties. Much like workers’ compensation or residential tenancy legislation, the CPA is designed to protect an identified class of individuals – consumers – by providing a defined set of rights which should not be subject to bargain or compromise. The parties to a consumer agreement cannot contract out of the CPA. Section 7(1) serves to enshrine the substantive and procedural rights in Part II despite any agreement or waiver to the contrary. The consumer is statutorily entitled to a warranty that services supplied under a consumer agreement are of a reasonably acceptable quality. To allow the parties to the consumer agreement at bar to contract out of the provisions in question would defeat the purpose of the CPA.

[10] As for s. 93(2), it is entirely irrelevant because ss. 7 and 9 contain the remedy for the infringement in question. Section 93(2) need not infect the analysis because the offending provision of the consumer agreement has already been voided by operation of s. 9(3). Found as it is in Part IX of the Act, s. 93(2) only applies to procedures for consumer remedies. While this section allows the court to bind a consumer to “all or a portion or portions of a consumer agreement”, that power is designed to prevent a consumer from escaping payment for a service that has been delivered and consumed under a consumer agreement not made in accordance with the CPA. Where the consumer is allowed the windfall of enjoying a service that it did not pay for, this is the kind of inequity envisaged in the saving provision of s. 93(2). However, that “saving” provision cannot be used to reinvigorate a term or acknowledgment that has already been voided by s. 9(3).

[11] The Plaintiff contends that, given the overall purpose of the CPA, it would always be inequitable to allow a waiver that is void ab initio by operation of the statute itself to be resurrected by the operation of s. 93(2). Put another way, it could never be appropriate to bind a consumer to a waiver in a consumer agreement where the inclusion of such a thing in a consumer agreement has been expressly prohibited by the same piece of legislation. The subsection is also available to cure technical breaches where it would be clearly inequitable to allow the consumer to escape her obligations under a consumer agreement because of some minor, non-substantive breach of the CPA. In the present case, s. 9(4) operates so as to sever the offending terms from the consumer agreement. There is no inequity for the court to consider.

[12] With respect to the OLA, the Plaintiff submits that the provisions of the CPA work to fence in the duties of the occupier as a provider of services. Where an occupier positions itself to come under the jurisdiction of the CPA, any attempt to limit its liability under s. 3(3) of the OLA is barred by the CPA which strictly forbids the limitation of liability for the quality of services provided.

The Defendant’s Position

[13] The Defendant asserts that, first, the CPA was not designed or intended to apply to recreational or sporting activities. As well, it argues that the purpose of the CPA is not simply to protect consumers, but to also create a predictable and stable environment for businesses. Drawing on excerpts from Ontario’s Official Report of Debates (Hansard) and in particular the readings of the proposed CPA in the Legislative Assembly of Ontario (“legislature”), the Defendant asserts that the CPA was implemented in order to protect consumers from fraudsters and unscrupulous operators. Ski operators do not fit into this category.

[14] Second, the Defendant argues that there is a long line of established case law that relates to the enforceability of waivers/releases in the context of recreational sports and skiing. “The court should be slow to interfere with the contractual arrangements entered into between knowledgeable adults acting under no compulsion and with an apparent understanding of the risks involved”: Lafontaine (Guardian ad litem of) v. Prince George Auto Racing Assn. , at pp. 20-21.

[15] Third, the Defendant contends that the waiver itself does not violate any substantive or procedural rights under the CPA. There is no term, condition or provision in the waiver that speaks to the quality of services and therefore s. 9(3) does not apply to void any portion of that agreement. The waiver operates as a potential defence to claims brought within the Superior Courts of Justice; as such, it will be subject to scrutiny and rigorous tests by the court before it can serve as a bar to the Plaintiff’s claim.

[16] Fourth, the Defendant points to s. 93(2) of the CPA which allows a court to 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 the Act or regulations if the court determines that it would be inequitable in the circumstance for the consumer not to be bound.” Section 91 provides that Part IX does not apply to remedies under Part III; however, there is no restriction on the applicability of s. 93(2) to Part II or ss. 9 (1) and (3) of the CPA.

[17] Lastly, the Defendant asserts that it should be left with the rights expressly accorded to it as an occupier under s. 5(3) of the OLA to restrict, modify, or exclude its duty of care or liability for breach thereof. The OLA has occupied the field in this area of law by expressly providing a means by which an occupier can immunize itself from liability.

Principles of Statutory Interpretation

[18] The Court of Appeal has summarized the manner in which a court must engage in statutory interpretation in Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd. (2000) , 47 O.R. (3d) 171 (C.A.), at para. 11:

The modern approach to statutory interpretation calls on the court to interpret a legislative 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. [Citations Omitted.]

[19] The Legislation Act , 2006 , S.O. 2006, c. 21 , Sched. A, s. 64(1) provides that “an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

Intent and Purpose of the CPA

[20] Consumer protection legislation is all about consumer protection. As such, its terms should be interpreted generously in favour of consumers: Seidel v. TELUS Communications Inc. , 2011 SCC 15 , [2011] 1 S.C.R. 531, at para. 37.

[21] Consumer protection legislation is inherently consumer-focused as its main objectives are: (i) protecting consumers, (ii) restoring balance in the contractual relationship between suppliers and consumers, and (iii) eliminating unfair and misleading practices: Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 6173 , 113 O.R. (3d) 1531, at para. 36; affirmed in Ramdath v. George Brown College of Applied Arts and Technology, 2013 ONCA 468 , 307 O.A.C. 196; referring to Richard v. Time Inc ., 2012 SCC 8 , [2012] 1 S.C.R. 265, at para 50.

Analysis

Question 1 - Does the CPA apply to the entire transaction of December 23, 2008, including the “Release of Liability” executed by the Plaintiff?

[22] I cannot agree with the submission made by the Defendant that the CPA was not designed to apply to the circumstances in question. First, s. 2 of the CPA makes it clear that the Act applies to “all consumer transactions” subject only to that section. Second, “consumer agreement” is broadly defined to capture “an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment”. “Consumer transaction” is said to mean “any act or instance of conducting business or other dealings with a consumer, including a consumer agreement.” Clearly, the Defendant in this case was a supplier of services (the use of a ski facility, ski equipment and a tow rope operated by the Defendant) for payment. As well, the rental agreement and the lift ticket are inescapably consumer agreements because they are the basis upon which the payment is made, entry onto the premises allowed and the services provided. Third, s. 2(2) sets out a limited number and type of transaction to which the CPA is not applicable. None of the exceptions even remotely resemble the type of services provided under the consumer agreement in the case at bar. I was referred to no regulation enacted under s. 123(1)(c) of the CPA that would serve to exempt ski resorts or the like from any provision of the Act. Finally, the Ontario Court of Appeal recently upheld Belobaba J.’s finding that postgraduate students seeking to obtain a business certificate qualify as consumers in Ramdath v. George Brown College. Upon consideration of the CPA’s legislative history, the trial judge found an intention to broaden rather than limit protections, as evidenced by the following statement at para. 53:

According to the Minister of Consumer and Business Services, the new CPA was designed to “strengthen protections for the consumer”, “strengthen disclosure rules so that consumer have clear and complete information to make informed decisions” and provide “teeth” to make the proposed protections more effective. It was also designed to broaden the protection for services. The Minister noted that over the past 30 years, Ontario had witnessed “a rapid growth of the service economy, to the point where over half our transactions involve services, and a rise in consumer leasing. This proposed legislation would extend protections to services, whether it’s cable, internet or lawn care.”

[23] In my view, it would offend not just any notion of common sense but also the wide import of the CPA to hold that in the present case: (i) the Plaintiff was anything but a consumer, (ii) the purchase of the ski package was anything but a consumer transaction, and (iii) the Rental Agreement and lift ticket were anything but consumer agreements. Had the legislature sought to exclude waivers of the variety found here from the clutches of s. 9, it could have and would have done so explicitly in the very section where the deemed warranty is imposed. Instead, the CPA contains very plainly and powerfully worded language in s. 7(1): “The substantive and procedural rights under this Act apply despite any agreement or waiver to the contrary.”

[24] Sections 9(1) and (3) are found in the “Consumer Rights and Warranties” part of the CPA. It is evident that the legislature intended for these rights and warranties to benefit consumers. The quality of services warranty in s. 9(1) is a substantive consumer right. It is not a suggestion or mere triviality. It cannot be waived or bargained away.

[25] Finally, I am not persuaded that there is any public policy reason why the CPA should not apply to the services provided by ski resorts. It would seem contrary to the idea of consumer protection to afford ski resort operators or extreme sports activity hosts a leg up on say, auto repair shops or service stations, simply because the nature of the activities that are engaged in at ski resorts are inherently more dangerous for consumers than those that would typically accompany an oil change or a car wash.

[26] The answer to Question 1 is therefore yes, the CPA does apply to the entire transaction of December 23, 2008. The lift ticket and the rental agreement formed part of a consumer agreement.

Question 2 - If the answer to Question 1 is yes, is the release of liability on the lift ticket and the executed rental agreement, which includes any right of action resulting from the negligent provision of services by Snow Valley, its servants, and employees, rendered void in law and unenforceable by ss. 9(1) and (3) of the CPA?

[27] This analysis demands a consideration of what would qualify as a term or acknowledgment that purports to negate or vary the implied warranty in s. 9 (1) that the services supplied under this consumer agreement were of a reasonably acceptable quality.

[28] The word “purport” is defined in Black’s Law Dictionary, 9th ed (St. Paul: Thomson West, 2009) at p. 1356 as “the idea or meaning that is conveyed or expressed, esp. [especially] by a formal document” while in the Concise Oxford English Dictionary, 11th ed (Oxford: Oxford University Press, 2008) at p. 1167, “purport” is defined as “the meaning or substance of a document or speech” and “the purpose of a person or thing”. One must therefore look at the purpose that the terms and acknowledgments in a consumer agreement are designed to serve.

[29] The term “negate” is defined in the Concise Oxford English Dictionary at p. 957 as “to nullify or make ineffective.” In Black’s Law Dictionary at p. 1132, the term is defined in an almost identical fashion. The term “vary” is not defined in the Black’s Law Dictionary. It is however defined in the Concise Oxford English Dictionary at p. 1600 as “change from one form or state to another and to modify or change (something) to make it less uniform.”

[30] A term or acknowledgment in a consumer agreement is void under the CPA not because a transaction has resulted in a demonstrable wrong against a consumer but because the very intention or purpose of the term or acknowledgment is clearly to nullify, negate, vary, or make ineffective an inviolable right contained in Part II of the CPA.

[31] The task that follows is to consider whether the particular waivers in question contain terms or acknowledgments that purport to negate or vary the implied warranty that Snow Valley would supply services of a reasonably acceptable quality.

[32] I find that the consumer agreement between the parties does contain terms and acknowledgments that purport to do so: the waiver of claims section of the rental agreement provides, in part, that the Plaintiff releases Snow Valley:

[F]rom any and all liability for any loss, damage, injury or expense that it may suffer…as a result of or arising out of any aspect of … use of the Equipment. DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY ON THE PART OF THE RELEASEES in respect of the design, manufacture, selection, installation, maintenance, or adjustment of the equipment, or in respect of the provision of or the failure to provide any warnings, directions, instructions or guidance as to the use of the Equipment. [Emphasis added.]

[33] The release of liability on the lift ticket provides that as a condition of the use of the ski area and other facilities, the ticketholder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including “negligence, breach of contract or breach of statutory duty of care on the part of Snow Valley Resorts (1987) Ltd”. [Emphasis added.]

[34] The word “services” is defined in the CPA as “anything other than goods, including any service, right, entitlement or benefit.” I find that the word “services” is broad enough to include the rental of ski equipment, the provision of lessons, instructions, supervision, guidance, assistance as well as the use of the facilities and the tow rope. Section 9(1) of the CPA imposes a warranty of reasonable quality for the services provided by Snow Valley to the Plaintiff.

[35] It is an axiom of both tort and contract law that breaches of warranty and/or breaches of duties of care give rise to rights of action for recovery of damages that flow from those breaches. By effectively removing those as grounds for bringing an action in tort or contract, one of the clear purposes of the waivers is to insulate the Defendant from the deemed warranty and statutory duty to provide services of a reasonable quality. As such, I find that those identified terms and acknowledgments offend both ss. 9(1) and (3) of the CPA. By virtue of s. 9(3), those terms and acknowledgments are void.

[36] The answer to Question 2 is in the affirmative. The terms “negligence, breach of contract or breach of warranty on the part of the releasees” in the rental agreement and “negligence, breach of contract or breach of statutory duty of care on the part of Snow Valley” in the lift ticket are presumptively void. I say ‘presumptively’ at this point because it remains to be determined whether the presumptively void terms and acknowledgments are capable of being saved under s. 93(2) of the CPA.

Question 3 - If the answer to Question 2 is yes, is the Release of Liability on the lift ticket and in the executed Rental Agreement rendered void in law as a whole or are the terms or acknowledgments in the Rental Agreement that violate s. 9(3) severable pursuant to s. 9(4) of the CPA?

[37] There is no doubt that s. 9(4) allows for the offending terms and acknowledgements in a consumer agreement to be severed. That is clear from the wording of the subsection. However, this raises the following questions: who is authorized to sever the offending terms and acknowledgements? When and how can the offending terms and acknowledgements be severed? And, what is the effect of severance on the conveniently termed ‘remnant consumer agreement’?

[38] I note the fundamental difference between the respective uses of “void” in s. 9(3) and “severable” in s. 9(4). “Void” carries with it a fait accompli: the fact has been done or decided by operation of s. 9(3). Subject to any saving or remedial provision, the offending terms and acknowledgments are inoperable. “Severable” as employed in s. 9(4), however, is not a fait accompli: nothing has been decided. The language of the latter subsection is not mandatory. This is a distinction with a difference because the parties, by agreement in the form of words or actions, may opt to carry the consumer agreement to its conclusion. Severance is therefore either actual or constructive. Though the offending terms and acknowledgments are void, the remnant consumer agreement can still be viable and capable of execution by both sides. In this case, there was clearly no agreement to sever the offending terms; indeed the Defendant sets up the waivers of liability as a complete defence to the action being brought by the Plaintiff to recover her damages. One is thus left with a consumer agreement containing presumptively void terms and acknowledgments because they purport to limit the liability of the supplier for, among other things, breaches of warranty and breaches of statutory duties of care.

[39] The partial answer to Question 3 is therefore yes. The parties to a consumer agreement, whether by actual or constructive agreement, may simply sever the offending terms and acknowledgments from the consumer agreement, leaving them to carry on with the rights and obligations contained within the remnant consumer agreement. For a complete answer to this question, however, Question 4 needs to be addressed.

Question 4 – Can the Plaintiff nevertheless be bound by the terms of the release of liability on the lift ticket and executed rental agreement by exercise of the court’s discretion under s. 93(2) of the CPA?

[40] Having considered the respective arguments of the parties together with the provisions, scheme and overall purpose of the CPA, I have arrived at the conclusion that the answer to Question 4 must be yes.

[41] It is tempting to conclude that it is not possible for the Plaintiff to be bound by the waivers because those portions of the consumer agreement are void by operation of s. 9(3). Something that is void is a nullity; it is not salvageable. Indeed, the word “void” has a ringing finality to it. Moreover, s. 9(3) is not made subject to any other section in the Act. Although s. 9(4) would seem to allow for the offending term or acknowledgment to be severed from the agreement, that severing can save only the remnant consumer agreement, not its offending limb. Section 93(2) does not reference s. 9(3); moreover s. 93(2) is found under Part IX entitled “Procedures for Consumer Remedies”. This is not the first place one would look to find a curative provision that could only be of utility to the service provider.

[42] Nevertheless, I find that s. 93(2) does serve as an overall saving provision for a consumer agreement infected by terms and acknowledgments that offend ss. 9(1) and (3) for the following reasons:

a. Section 91 states that Part IX does not apply to remedies claimed in respect to unfair practices under Part III. It follows that Part IX can apply to other parts of the CPA; b. Section 93(2) refers to agreements that have “not been made in accordance with this Act”. Thus the entire CPA, including Part II, is clearly within the section’s ambit; c. Section 93(2) contemplates binding the consumer to “all or a portion or portions of a consumer agreement”. I interpret this to mean that s. 93(2) allows for a consideration of the original consumer agreement with all of its terms and acknowledgments. The subsection does not limit the court’s scrutiny to only the remnant or non-voided portions of consumer agreements; d. The doctrine of severance enables a court to excise an offending provision from an agreement and permit each party to enforce the remainder of its terms that are untouched by the illegality: see John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2005) at p. 483. I find that the power to sever the offending terms and acknowledgments simply elides with the court’s authority in s. 93(2) to bind the consumer to all or a portion or portions of a consumer agreement. The fact that the severability of the offending term or acknowledgment is contemplated in s. 9(4) does not, in my view, remove that power to sever from the court’s repertoire of remedies under s. 93(2). Indeed, the end result of severance is to leave some “portion” or “portions” of the consumer agreement binding on the consumer. Thus, where the parties cannot agree to sever an offending term or acknowledgment from the consumer agreement, it remains entirely within the court’s power to do so; e. Section 93(2) invites the court to explore the inequities involved in allowing the consumer not to be bound by the consumer agreement. This invocation of the court’s equitable jurisdiction is not inconsistent with the overall intent of the CPA which is to ensure both transparency and integrity of consumer agreements and transactions; f. Liability waivers have long been a feature of both tort and contract law. They have been the subject matter of intense judicial scrutiny such that an entire body of case law has built up around them, replete with considerations which extend well beyond the four corners of waivers. See for example: Isildar v. Kanata Diving Supply . Non es factum, contra preferendum, unconscionability, and fundamental breach are some of the legal and equitable doctrines which serve as challenges to the validity of waivers. Courts have historically imposed a strict test which a defendant/operator must meet before the court will enforce a waiver. In my view, had the legislature intended through the introduction of the CPA, and in particular s. 9(3), to render void all waivers for the provision of quality services found in consumer agreements without allowing for recourse to the equitable jurisdiction of the courts, it would have done so in clear, emphatic, and certain language. Instead, it left the door open to considerations of equity in s. 93(2); and g. Section 93(2) should not be limited in its scope. As stated by Rosenberg J.A. in Weller v. Reliance Home Comfort Limited Partnership , 2012 ONCA 360 , 110 O.R. (3d) 743, at para. 19:

There is nothing in s. 93 to so limit the reach of the provision. To the contrary, s. 93(2) refers to a court ordering that the consumer be bound by “all or a portion or portions of a consumer agreement”…. Similarly, there is nothing in s. 93(2) that limits its reach to technical oversights. The test for application of the proviso is not the nature of the defective compliance but whether it would be inequitable for the consumer not to be bound. Obviously, in deciding whether it would be inequitable, the court will take into account the nature of the non-compliance, and the more substantial the deviation from the legislative scheme the more likely it will be that the court will find it would not be inequitable for the consumer not to be bound to the agreement.

[43] I conclude therefore, that in situations where a consumer agreement contains terms or acknowledgments rendered presumptively void by operation of s. 9(3) and where the parties cannot agree to sever those offending terms from the consumer agreement under s. 9(4), the court may exercise its jurisdiction to sever the offending terms of the consumer agreement. It may do so as part of its s. 93(2) inquiry into whether it would be inequitable in the circumstances for the consumer not to be bound by the original agreement, including those terms and acknowledgments that would be void but for the equitable jurisdiction of the court. The onus rests upon the service supplier to satisfy the court that the presumptively void terms should remain in the consumer agreement and bind the Plaintiff. In the case at bar, that onus would fall upon the Defendant/operator – Snow Valley.

[44] Although the court retains jurisdiction to sever the offending terms and acknowledgments, I have not been asked to do so. Question 3 was limited to whether any offending terms and acknowledgments were capable of severance. I have concluded that they are. Moreover, the parties have not asked the court to embark on any determination of the equities in this case. There is an insufficient evidentiary basis before me to do so. Each case would turn upon its own facts. Some considerations which a court might look to would include: the nature of the service supplied, the sophistication of the parties involved, whether the contract was bargained at arm’s length, the degree of completion of the contract, the benefit derived by the consumer, and whether it would be against public policy to enforce the contract. See: Grainger v. Flaska , 2013 ONSC 4863 , 31 C.L.R. (4th) 23, at paras. 77-79 and Connect Electric Inc. v. Pullen , 2013 ONSC 1837 , at para. 57.

[45] The answer to Question 4, which is also a partial answer to Question 3, is yes. The terms and acknowledgments in question are severable under s. 9(4) by either the parties themselves or as part of the exercise of the court’s equitable jurisdiction under s. 93(2). Further, it remains within that equitable jurisdiction to bind the Plaintiff to any of the terms and acknowledgments in a consumer agreement, including those that violate ss. 9(1) and (3).

Question 5 – If the provisions of the CPA negate the application of the waivers, do the provisions of the OLA supersede those of the CPA to allow Snow Valley to rely on the waivers?

[46] Sections 3(3) and 5(3) of the OLA permit occupiers to restrict, modify or exclude the duty of care imposed on them to take reasonable steps to ensure that persons entering onto their property are reasonably safe. However, that allowance is subject to the occupier being “free” to do so. The language in the OLA is not entirely permissive: it does not say that the occupier “is free” to restrict that duty; nor does it suggest that the occupier “may” or “is entitled to” restrict that duty. Instead, we see the wording “in so far as the occupier of premises is free” in s. 3(3) and “where an occupier is free” in s. 5(3). I interpret this to mean that the ability to restrict a duty or any liability is not self-evident but instead must derive from a context where the occupier is not restricted from doing so. In a consumer transaction agreement, the occupier is not free to restrict its liability for the provision of services of an unreasonable quality because of the operation of ss. 9(1) and (3) of the CPA.

[47] I cannot agree with the argument put forth by the Defendant that the law for occupiers in Ontario is somehow less restrictive than that of British Columbia because the Occupiers Liability Act , RSBC 1996, c. 337, s. 4(1) contemplates scenarios in which the occupier is “permitted by law to extend, restrict, modify or exclude the occupier’s duty of care”. I see no practical difference between the two statutes. “Free” given its plain and ordinary meaning, would be expansive enough to include “permitted by law”. Indeed, included in the definition of “free” in Black’s Law Dictionary at p. 734 is the descriptor “unrestricted and unregulated.” But consumer transactions are regulated in this province, partly by the CPA, which clearly restricts the ability of parties to bargain out of the implied warranty for services provision found at s. 9(1). That implied warranty is a right enjoyed by the consumer because the supplier is deemed to give it. It is noteworthy that s. 6 of the CPA protects the rights of consumers only: “Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law.” There is no similar provision in the OLA which serves to enshrine the rights and remedies of suppliers or occupiers. The OLA is certainly not assigned any paramount status over consumer protection legislation. I would conclude that where, as here, an occupier has made its premises subject to a consumer agreement for the supply of services, the CPA serves to impede the freedom of that occupier to restrict, modify or exclude its duty to provide services of a reasonable quality in a consumer transaction.

[48] The answer to Question 5 is therefore no; the provisions of the OLA do not supersede those of the CPA so as to allow Snow Valley to rely on the offending terms of the waivers.

Onus on the Supplier

[49] There is nothing in the CPA which directs how the parties should go about seeking the equitable determination of the court under s. 93(2) in circumstances where the impugned waiver is set up as a defence to an action for damages. Rule 21 of the Rules of Civil Procedure may not be appropriate given that considerations of equity almost always require some evidentiary record. Rule 20 is available but summary judgment motions can be both risky and expensive and there is no guarantee that a court will determine the issue at that stage if there is a genuine issue requiring a trial.

[50] Indeed, the parties in the case at bar may feel slightly aggrieved in that the cumulative effect of the answers given here leave them with the likelihood that the s. 93(2) analysis may only be practically or ultimately exercised by a trial judge. In short, they may perceive little or no progress on the issue even after the disposition of the special case.

[51] Nevertheless, it should be abundantly clear from the answers given that the onus in this case now rests with the Defendant to persuade the court that it would be inequitable not to bind the Plaintiff to all or some portions of the consumer agreement, including the presumptively void terms and acknowledgements found in the release of liability and the rental agreement.

Disposition

[52] For the reasons set out above, the answers to Questions 1 and 2 are yes, the answer to Question 3 is yes (regard must be had to the answer to Question 4), the answer to Question 4 is yes, and the answer to Question 5 is no.

Costs

[53] There has been mixed success on the special case. There has been no adjudication on whether the particular waivers at issue would survive a review under s. 93(2). If the parties are unable to agree on the issue of costs or the form or content of any order, they may seek a re-attendance before me through the Barrie trial coordinator for the purposes of addressing those matters.

J.R. McCarthy J. Released: January 13, 2017