What happens when statutes collide?
In Schnarr v Blue Mountain Resorts Limited, the Ontario Court of Appeal was recently asked to bar a negligence suit by enforcing waivers of liability signed by skiers visiting a ski resort.
The issues in the case clustered around the dual application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act (“CPA“) to agreements between skiers and ski resorts.
As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make their property available for recreational activities, the OLA allows for landowners to limit their liability through waivers of liability. However, as a consumer agreement, these ski resort contracts are also governed by the CPA. The CPA requires services supplied under a consumer agreement to be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be void.
The concurrent governance of the OLA and the CPA thrust two issues before the Court of Appeal: (1) whether the two provisions could be interpreted to find a state of harmony; and (2) if not, what effect should be ascribed to each provision?
The Court of Appeal answered the first question by finding a conflict between the two provisions. It rejected the argument – accepted by the trial judge – that harmony could be established by limiting the application of each provision to a specific cause-of-action. The trial judge had held that the OLA provision allows waivers to limit liability in tort, while the CPA provision voids waivers attempting to limit liability under contract.
The Court of Appeal denied this attempt at harmony by noting that each statute deals with a duty of care, not a particular cause-of-action. The provisions of each statute therefore extend across the same range of liability, encompassing both tort and contract. The OLA allows liability to be waived, while the CPA does not. Conflict cannot be avoided.
To answer the second question, the Court of Appeal relied upon five principles of statutory interpretation to hold that the OLA provision – enforcing waivers of liability – prevails.