Are the Consumer Protection Act (2002) and the Occupier’s Liability Act in conflict? According to recent rulings, when it comes to whether or not a “supplier” (i.e. business) can apply a waiver to contract out of the “duty of care”, the answer is, unequivocally, yes, if the supplier is also an occupier of premises as defined by the Occupier’s Liability Act (OLA).
The OLA states that the “duty of care” is provided for, except “in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.” i.e. unless they modify such duties by a waiver.
The Consumer Protection Act (CPA), however, states, essentially, that any contract that negates any part of the occupier’s “duty of care” is void. So which is it?
Can a supplier “contract out” of the duty of care?
The Court of Appeal, in two high-profile cases involving injuries sustained by the victims while skiing, sided with the OLA, in essence. It ruled in favour of allowing occupiers to “contract out” of certain elements of liability. Two ski resorts in Ontario, Blue Mountain and Snow Valley, won the right to continue to use liability waivers to limit duties of care.
What does this mean for the consumer? Always read the waiver that’s put in front of you—carefully. If it states something to the effect of “we are not liable if you get injured”, and you sign it, then the service provider is very likely not liable.
No need to worry about being “had”—they can’t try to ‘slip one by you’ in tiny print on the back of a lift ticket. It must be in the contract, easy to read, and in plain view.
Can you still sue if you signed a waiver?
Certain waivers may be unenforceable. There are some exceptions, which could possibly enable the victim to bring a lawsuit:
- If the waiver is misrepresented by the occupier as something that isn’t really a waiver
- If the consumer was actively misled or lied to, in order to get them to sign the waiver
- If the occupier did not take “reasonable steps to bring to your attention that by signing the waiver, you are giving up your legal right to sue”
- If the subject matter of the waiver does not specifically cover the activity on the premises
“Fortunately, there are still cases where the waiver will not be enforceable against the injured user of premises,” said personal injury lawyer Brian A. Horowitz. In general, however, all told, the ability to bring a civil lawsuit against any provider of services or products in which there is an inherent danger, has become much more difficult than in the past.
Be wary of contractual waivers
“Now that it is settled law in Ontario that the OLA trumps the provisions of the Consumer Protection Act, which void contractual waivers in consumer transactions, contractual waivers are all too frequently a complete bar to an action for personal injury,” said Mr. Horowitz. “It is imperative that the specific language of the waiver is reviewed carefully and all of the circumstances surrounding its signing are considered. ”
Whether you’re going snowboarding, mountain bike riding, indoor sky diving, or any other activity that can result in injury, if you’ve signed a waiver that absolves the company of said liability, it will be very difficult to sue.
Make sure you’re aware of the legality of the waiver you’re about to sign. Horowitz Injury Law has been dealing with these consumer protection acts for nearly 35 years. If you have any questions about this, or have been in an accident, contact us ASAP for a free consultation. Learn your rights, and let us help you get the compensation you deserve. 416-925-4100.
