Law Times

Page 10 February 12, 2018 • Law Times www.lawtimesnews.com 'Particular significance to the ski industry' Cases could have impact on recreational facilities BY SHANNON KARI For Law Times T he Ontario Court of Appeal is being asked to interpret a potential conf lict between two provincial statutes that could have significant ramifications for ski resorts and other recre- ational activities that carry the risk of injury. The scope of the Consumer Protection Act and the interplay with the waiver protections for suppliers under the Occupiers' Liability Act are at the centre of appeals of two Superior Court rulings that are being heard jointly. The parties in Schnarr v. Blue Mountain Resorts Ltd. and Woodhouse v. Snow Val- ley, along with lawyers rep- resenting several intervener groups, including the province and the Ontario Trial Lawyers Association, made arguments at a two-day hearing on Feb. 7 and 8. "This is a novel case," says Suhuyini Abudulai, partner at Cassels Brock & Blackwell LLP in Toronto. "It touches on a wide variety of industries and there is not a lot of guidance [on the scope of the CPA]," says Abudu- lai, whose practice focuses on compliance with consumer pro- tection laws. The two cases before the Court of Appeal both stem from personal injuries suffered by the plaintiffs at ski facilities. The lift tickets purchased in- cluded waivers of liability as per- mitted under the OLA. Superior Court Justice Ria Tzimas in Schnarr and Justice John McCarthy in Woodhouse accepted the arguments of plain- tiffs that the waivers did not ex- empt the ski facilities from the statutory obligation under the consumer legislation to provide services of a "reasonable accept- able quality." "The concerns to regulate e- commerce and to protect con- sumers may have been the trig- gering 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," wrote Tzimas in her deci- sion. "The OLA is certainly not assigned any paramount status over consumer protection legis- lation," wrote McCarthy in his ruling. The appellants are arguing that the Superior Court rul- ings incorrectly expanded the scope of the CPA and may have broad consequences if allowed to stand. "This case has significant im- plications for both the contin- ued enjoyment of recreational activities by Ontario's citizens and the recreation industry gen- erally," said lawyer John Olah in written submissions on behalf of Blue Mountain. "It has particular significance to the ski industry and for any sports activities, which, have by the nature of the sport, an inher- ent element of risk," wrote Olah, a partner at Beard Winter LLP in Toronto. "A contract to use a ski re- sort's facility is qualitatively very different than a contract to re- pair a motor vehicle and other goods," he also wrote. The consumer protection statute applies to agreements such as for time shares or credit cards and was not meant to gov- ern activities such as downhill skiing, stated Olah in written submissions. "Weather conditions, the ski- er's speed, visibility, trajectory, suitability for the trail, the state of the skier's equipment that she or he brings to the trail and the actions of other skiers are be- yond the ski resort's control. The legislature never intended these sporting activities to be caught up in the CPA," wrote Olah. The Court of Appeal will have to resolve the potential con- f lict between the two statutes in circumstances such as these, notes Abudulai. "Traditionally, the CPA is about consumer agreements. When it applies, you cannot waive your rights. Under the OLA, you can waive them," she explains. Among the interveners in the appeal are three Toronto-area conservation regions. The OLA holds non-profit recreation clubs to a lower standard of care in terms of liability. The conservation regions are arguing that the consumer leg- islation should not apply to the non-profit groups or, if it does, there should still be the same standard of care required as cur- rently exists for these organiza- tions. Zohar Levy, co-counsel for the conservation regions, notes that these are organizations without significant budgets to defend potential lawsuits. "The goal of the [occupiers'] legislation was to make sure cer- tain classes of landowners were encouraged to allow access to the public," says Levy, a lawyer at Fasken Martineau DuMoulin LLP in Toronto. The application of the two statutes on recreational trails operated by non-profit orga- nizations was not addressed directly at the Superior Court level, which is why the groups sought to intervene. "The courts below used broad language. It is very expansive," says Levy. One of the interveners, the Canadian Defence Lawyers, suggests that the occupiers' leg- FOCUS Suhuyini Abudulai says the Court of Appeal will have to resolve the potential conflict between the Consumer Protection Act and the Occupiers' Liability Act. A contract to use a ski resort's facility is qualitatively very different than a contract to repair a motor vehicle and other goods. John Olah Every time you refer a client to our law firm, you are putting your reputation on the line. CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-3 1 2018-02-06 12:54 PM See OTLA, page 12 CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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