Law Times

PM #40762529 $5.00 • Vol. 29, No. 12 April 9, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M More transparency needed on good character Emily Hill says a motion being proposed at the Law Society of Ontario's annual general meeting is about 'levelling the playing field.' Photo: Robin Kuniski LSO DISCLOSURE Order requires regulator to provide more P5 CAMPAIGN FINANCE Reforms on spending now in effect P7 FOCUS ON Alternative Dispute Resolution P8 Decision has significant impact on waivers BY ALEX ROBINSON Law Times T he Court of Appeal has found that provisions in the Occupiers' Liability Act trump the Consumer Protection Act when it comes to waivers. In Schnarr v. Blue Mountain Resorts Limited, the Court of Ap- peal heard two cases together that involved injured skiers bringing lawsuits against ski resorts after having signed agreements waiving the facilities' liability in the event they got hurt. Lawyers say the decision has significant implications for waiv- ers, in particular when it comes to the sports and recreation industry. "Waivers are designed to ex- plain the risk to the participant and insulate to some degree the fa- cility from being sued because you can't have a recreational facility be- ing sued every time somebody gets injured," says John Olah, one of the lawyers representing Blue Moun- tain Resorts. Olah, a senior litigation partner at Beard Winter LLP, says the deci- sion means that waivers are valid and will serve as effective defences as long as the activity falls under the Occupiers' Liability Act. At issue in the appeal was whether a particular provision in the OLA prevails over provisions in the Consumer Protection Act. The OLA, which came into force in 1980, allows occupiers to obtain waivers from people using their premises so they are not li- able in the event they get injured. A provision of the act holds that the occupier's duty of care does not apply in "respect of risks willingly assumed by the person who enters on the premises." On the other hand, the CPA, which was adopted in 2002 to modernize the province's con- sumer law, guarantees a warranty of quality of services provided by a supplier to a consumer. This says that warranty cannot be waived and that any term or ac- See Affects, page 4 John Olah says a recent Court of Appeal deci- sion means that waivers are valid as long as the activity falls under the Occupier's Liability Act. & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM ntitled-2 1 2018-04-03 10:41 AM 6 TH ANNUAL ANTI-BRIBERY AND CORRUPTION COMPLIANCE JOIN OUR FULLY ACCREDITED PROGRAM | EXPAND YOUR NETWORK AND OBTAIN CPD HOURS Register online: www.lexpert.ca/Anti-Bribery • 416-609-5868 | 1-877-298-5868 *Discount applies to in-class only USE PROMO CODE EARLYBIRD2018 & SAVE $300* EARLY BIRD EXTENDED TO APR.30 Untitled-8 1 2018-04-03 1:49 PM BY ALEX ROBINSON Law Times L awyers are calling on the Law Society of Ontario to confirm whether it consid- ers systemic factors when determining whether Indigenous candidates meet the "good char- acter" requirement to become a lawyer. A group of lawyers and legal scholars has submitted a motion to the LSO's annual general meet- ing, asking the regulator to review its process for assessing licensing candidates' good character and whether it imposes a discrimina- tory barrier to admission for In- digenous applicants. "This is not about establish- ing a double standard. It's actually about levelling the playing field," says Emily Hill, the interim legal advocacy director for Aboriginal Legal Services, who is supporting the motion. "It's trying to understand that we have to take into account In- digenous peoples' unique history and background factors [as well as] systemic factors that may have played a role to ensure there aren't barriers to their success in the pro- fession." In order to become a lawyer, the LSO requires licensing candidates to answer questions about their background to determine whether they are of good character. Some of this information in- cludes whether the candidate has ever been convicted of a crime or other offence. Hill says that as Indigenous Canadians are more likely to face systemic discrimination within the criminal justice system, they are more likely to be charged or convicted for behaviour in which a non-Indigenous person may have also engaged. This might serve as a barrier for someone who would otherwise be an excellent lawyer, she says. "Having some context around the experience of Indigenous peo- ple and that individual's personal background factors might shed light on the quality of their charac- ter," says Hill. More than 80 lawyers and legal scholars have signed the motion that will be considered at the law society's annual general meeting in May. The working group that sub- mitted the motion says it is aware See Are, page 4

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