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Fridays with Rogers Partners

At our weekly meeting, Pip Swartz led a further discussion on the decision in Arksey v. Sky Zone Toronto[1]. A summary of the case from our previous discussion of it can be found here:

During our firm’s discussion of Arksey, a hypothetical question was raised: how would the judge have ruled in Arksey if the waiver in question had been a sign?

Signs as waivers are common. For example, signs may serve as waivers in the following situations: signs in front of waterparks warning ‘Ride at your own risk’, disclaimers printed on the backs of sporting event tickets, and liability disclaimers posted on the backs of ski lift chairs.

The judge in Arksey stated that a waiver may be invalid if a company fails to take reasonable steps to bring the waiver to the customer’s attention. In Arksey, the company (Sky Zone Toronto) took such steps by giving the customer time to read the waiver, bolding important provisions in the waiver, and having the customer ‘check’ boxes with their finger to indicate that they read those provisions.

The answer to our hypothetical question depends on whether a sign can sufficiently notify customers about the legal rights they are waiving. In Arksey, the judge references a case, Apps v. Grouse Mountain Resorts Ltd[2],which addresses this question.

In Apps, the company (a ski resort) posted a sign at the resort that stated that the ski resort was not liable for any harm or injury incurred while skiing. The judge in Apps found that the ski resort failed to notify their customers of the rights they were waiving because the sign was only visible to customers after they had purchased their tickets. The judge dismissed the ski resort’s motion for summary judgement (to dismiss the customer’s claim) and held that there was a genuine issue requiring trial.

Apps and Arksey are helpful examples of which kinds of waivers are more likely to be upheld in court. A waiver is more likely to be upheld if it requires the customer’s signature (Arksey). However, if the customer is rushed while signing the waiver, like in Zaky[3] (which was discussed in the previous post on Arksey), the waiver might not be upheld. Waivers are less likely to be upheld when they are only visible to the customer after they have already paid for their ticket or have paid an admission fee (Apps).

Waivers and the Consumer Protection Act, 2002

The enforceability of waivers under the Occupiers’ Liability Act (OLA) was questioned in Schnarr v. Blue Mountain Resorts Limited[4], a 2018 case heard before the Ontario Court of Appeal. In Schnarr, two cases were heard. In both cases, the plaintiffs were injured while skiing on the defendants’ premises. The plaintiffs had signed waivers relinquishing their rights to sue the defendants. Both plaintiffs wished to sue the defendants under the Consumer Protection Act, 2002 (“CPA”).

These cases were heard before the Ontario Court of Appeal because they raised the same novel legal question. Under the OLA, occupiers can contract out of the duties they owe occupants. Under the CPA, producers cannot contract out of the duties they owe consumers. In Schnarr, all parties agreed that the plaintiffs and defendants had entered into consumer transactions with each other.

The central issue in Schnarr was the following: if the OLA and CPA conflict, which should take precedence? Under the OLA, the plaintiffs waived the right to sue the defendants, but under the CPA, the plaintiffs retained the right to sue. The judge held that the OLA takes precedence, and therefore the plaintiffs waived their rights to sue.

In reaching their decision, the court in Schnarr focused on the policy motivations behind the enactments of the CPA and OLA. The court found that the OLA was designed for occupiers to be able to contract out of liability. The court held that the drafters of the CPA did not contemplate occupiers when drafting that legislation, and likely did not intend for the CPA to usurp the OLA.

In Schnarr and Arksey, the court upheld the validity of waivers signed by plaintiffs. This may demonstrate that Ontario courts are (currently) willing to enforce signed waivers in occupiers’ liability claims, provided those signing them are given ample opportunity to review and agree to them.

[1] Arksey v. Sky Zone Toronto, 2021 ONSC 4594.

[2]Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78.

[3] Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380.

[4] Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313