



COURT OF APPEAL FOR ONTARIO

CITATION: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA
    668

DATE: 20180725

DOCKET: C63305 and C63351

Doherty, Brown and Nordheimer JJ.A.

BETWEEN

David Schnarr

Plaintiff (Respondent)

and

Blue Mountain Resorts Limited

Defendant (Appellant)

AND BETWEEN

Elizabeth Woodhouse

Plaintiff (Appellant/

Respondent by cross-appeal)

and

Snow Valley Resorts (1987) Ltd. aka Snow Valley
    (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350
    Ontario Ltd.

Defendants (Respondents/

Appellants by cross-appeal)

John A. Olah, for the appellant, Blue Mountain Resorts
    Limited

Edward Chadderton and Jeffrey Belesky, for the
    respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka
    Snow Valley (Barrie), Snow Valley Barried, Snow Valley Ski Resort, Snow Valley,
    and 717350 Ontario Ltd. (collectively, Snow Valley)

Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for
    the respondent, David Schnarr and for the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse

Heard: February 7-8, 2018

On appeal from the orders of
    Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with
    reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior
    Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

ADDENDUM

[1]

On March 28, 2018, this court released its decision allowing both appeals
    and the cross-appeal, setting aside the two orders below, and remitting the
    matters back to the Superior Court of Justice to proceed in accordance with this
    courts reasons.

[2]

Subsequent to the release of our reasons, counsel advised in writing
    that certain issues had arisen with respect to taking out the formal orders. 
    Specifically, three issues were of concern:

1.

Whether the no order as to costs provision could incorporate both the
    parties and the interveners or whether they had to be dealt with separately.

2.

Whether the courts conclusion regarding s. 93(2) of the
Consumer
    Protection Act, 2002
, S.O. 2002, c. 30, Sched. A should be reflected in
    the formal order.

3.

Whether the courts conclusion regarding the effect of the respective
    waivers should be reflected in the formal order and, if so, how that conclusion
    should be worded.

[3]

In terms of the first issue, we would agree with counsel that the no
    order as to costs can be reflected in the orders as relating to both the
    parties and to the interveners, but for a separate issue that we identify below. 
    If all of the costs had been determined at the same time, a simple provision
    that there be no order for costs of the appeal either for or against any party
    including the interveners would suffice.

[4]

The second and third issues can be dealt with together.  The simple
    answer to those issues is that neither of these conclusions ought to be
    reflected in the formal order.  A formal order reflects the ultimate
    disposition of a proceeding.  It does not reflect the reasons for that
    disposition.  Absent a request for a formal declaration, conclusions regarding
    issues raised in a proceeding ought not to be reflected in the formal order.
    For example, if a court concludes that the defendant was negligent and awards
    damages as a consequence, the formal order does not say that the defendant was
    negligent.  It simply says that the defendant is ordered to pay to the
    plaintiff damages in a set amount.

[5]

In this case, therefore, the formal order ought not to reflect the
    interpretation that this court applied to s. 93(2) nor should it reflect the
    conclusion that we reached regarding the applicability of the respective
    waivers.  Those conclusions are reflected in our reasons and the parties can make
    submissions as to the consequences of those conclusions if, and when, necessary
    as the proceedings continue.  Indeed, we note that counsel appear to be in
    agreement that it is open to the plaintiffs to make other arguments as to why
    they might not be bound by the waivers.  All that the formal orders will record
    is that the appeals (and cross-appeal) were allowed and the matters remitted
    back to the Superior Court of Justice.

[6]

The other issue regarding costs, that we alluded to above, arises from
    the draft orders submitted by counsel.  On April 25, 2018, this court released
    its decision regarding costs as between the parties. Our March 28, 2018 reasons
    had dealt with costs as they related to the interveners.  Our decision on costs
    is a determination separate and apart from the determination of the merits of
    the appeals (and cross-appeal).  Counsel have drafted a single order
    incorporating both the date of the merits decision and the date of the costs
    decision.  That is improper.  Rather, what is required is for two formal orders
    to be taken out.  The first order should deal with the merits, and the costs as
    they relate to the interveners, and the second order should deal with the issue
    of costs as they relate to the parties, with each order bearing the respective
    date when those decisions were released.

[7]

With these directions, we assume that counsel will now be able to
    redraft the formal orders accordingly and have them taken out.  However, if
    further issues remain, counsel can arrange an appointment with Justice
    Nordheimer to settle the orders.

Doherty J.A.

David Brown J.A.

I.V.B. Nordheimer J.A.


