



COURT OF APPEAL FOR ONTARIO

CITATION: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA
    313

DATE: 20180328

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

Defendants (Respondents/
Appellants by cross-appeal)

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

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

Paul J. Pape, Shantona Chaudhury, and Peter Cho, for the
    respondent, David Schnarr

Paul J. Pape, Shantona Chaudhury, Marc Lemieux, and Ryan
    Hurst, for the appellant/respondent by cross-appeal, Elizabeth Woodhouse

Peter Pliszka and Zohar Levy, for the
    interveners, Conservation Halton, Credit Valley Conservation, and Toronto
    Region Conservation

Robert Love, Edona Vila, and Samantha Bonanno,
    for the interveners, The Ontario Federation of Snowmobile Clubs and Ontario
    Cycling Association

Jim Tomlinson and Garett Harper, for the
    intervener, Canadian Defence Lawyers

Thomas Curry and Ahmad Mozaffari, for the
    intervener, Tourism Industry Association of Ontario

Judie Im and Baaba Forson, for the intervener, Minister
    of Government and Consumer Services

Derek Nicholson, for the intervener, Ontario
    Trial Lawyers Association

Heard: February 7-8, 2018

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

Nordheimer J.A.:

[1]

These two appeals were heard together as they raise common issues. In
    both cases, the plaintiffs were patrons of the defendant ski resorts who purchased
    ski tickets. In both cases, those patrons executed the ski resorts waivers of
    liability as a condition of their tickets. And in both cases, the patrons were
    injured on the ski resorts premises. The patrons sued.

[2]

On a r. 21 motion under the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194 in the case of Mr. Schnarr, the parties agreed that there was a
    consumer agreement (as defined under s. 1 of the
Consumer Protection Act,
    2002
, S.O. 2002, c. 30, Sched. A (
CPA
)) between Mr. Schnarr and
    Blue Mountain Resorts Limited (Blue Mountain). On that basis, Tzimas J. held
    that Blue Mountains waiver under s. 3(3) of the
Occupiers Liability Act
,
    R.S.O. 1990, c. O.2 (
OLA
) partially offended ss. 7(1) and 9(3) of
    the
CPA
. She held that Blue Mountains waiver, insofar as it purported
    to waive liability in contract, was void and severed from the consumer
    agreement. In a similar vein, in the case of Ms. Woodhouse on a r. 22 motion,
    McCarthy J. held that Snow Valleys waiver was void in respect of both tort and
    contract claims. However, he held that a court nevertheless had the equitable
    power to enforce a void waiver in a consumer agreement pursuant to s. 93(2) of
    the
CPA
. It is important to note that, aside from the agreed statement
    of facts submitted by the parties, none of the underlying facts have yet been
    proven in court.

[3]

Blue Mountain and Ms. Woodhouse appeal. Snow Valley cross-appeals. Foremost,
    these appeals raise the question of whether the
CPA

or the
OLA
governs the relationship between the parties. Specifically, the appeals present
    a case of first impression as to whether ss. 7 and 9 of the
CPA
vitiate
    or void an otherwise valid waiver of liability under s. 3 of the
OLA
,
    where the party seeking to rely on the waiver is both a supplier under the
CPA
and an occupier under the
OLA
.

[4]

In my view, when applied to the instant context, ss. 7 and 9 of the
CPA
fundamentally undermine the purpose of s. 3 of the
OLA
. The statutes
    are irreconcilable and conflict. As such, and as I shall explain below, the
    more specific provision in the
OLA
prevails over the general provisions
    in the
CPA
.
[1]
I would therefore allow both Blue Mountains appeal and Snow Valleys
    cross-appeal for the reasons that follow. On the separate issue of the
    application of s. 93(2) of the
CPA
, I would also allow Ms. Woodhouses
    appeal.

Background Facts  Schnarr v. Blue Mountain Resorts Limited

[5]

Mr. Schnarr purchased a 2010-2011 season ski pass from Blue Mountain's website
    on April 29, 2010. As part of his online transaction, Mr. Schnarr executed a Release
    of Liability Agreement, Waiver of Claims, Assumption of Risk and Indemnity
    Agreement (the Blue Mountain waiver).
[2]

[6]

On March 26, 2011, while skiing down a ski run called "Smart Alec",
    Mr. Schnarr allegedly collided with a piece of debris from a broken ski pole.
    He lost control, struck a tree, and sustained injuries.

[7]

The Blue Mountain waiver contained a number of provisions purporting to
    shield Blue Mountain from certain liabilities and preclude Mr. Schnarr from
    suing. One heading, set out in bold type in a yellow box with a red border,
    specifically instructed the customer to PLEASE READ CAREFULLY! and cautioned Mr.
    Schnarr that by executing the document, he was giving up certain legal rights.

[8]

The waiver specifically provided that in consideration for Blue Mountain
    accepting his application for a season pass, Mr. Schnarr agreed both to waive
    any and all claims against the ski area operator and others, and to release
    them from liability for any damages that he may suffer.

[9]

On October 13, 2011, Mr. Schnarr commenced an action in negligence
    against Blue Mountain. Mr. Schnarr claimed general damages in the sum of
    $200,000 and special damages in the sum of $100,000.

[10]

On
    January 4, 2016, Mr. Schnarr amended his statement of claim. Under the heading Applicable
    Statutes, he claimed for the first time that the season ski pass was a
    consumer transaction. He also alleged that Blue Mountain had breached the reasonably
    acceptable quality standard under s. 9(1) of the
CPA
. The particulars
    of this alleged breach were identical to the alleged breaches of the standard
    of care in the tort of negligence as advanced in the original statement of claim.
    In addition, in his amended statement of claim, Mr. Schnarr also pleaded that
    he was relying on s. 7(1) of the
CPA
to vitiate the entirety of the
    Blue Mountain waiver. He did not plead any additional or different facts to support
    his allegation that Blue Mountain failed to provide a reasonably acceptable
    quality of service.

[11]

Although
    the trial was originally scheduled to start in January 2016, Tzimas J.
    concluded that, due to the amendment of the statement of claim and the novel
    issue of law raised, the case should first proceed by way of a r. 21 motion.
    Justice Tzimas ordered a determination of a question of law under r. 21.01(1)(a)
    based on the pleadings before trial. Justice Tzimas did not receive any
    evidence other than the parties agreed statement of facts.

[12]

On
    January 6, 2017, Tzimas J. released her reasons on the r. 21 motion. Justice
    Tzimas held that there was no conflict between the impugned sections of the
CPA
and
OLA
, and that the relevant provisions could be read harmoniously
    under modern principles of statutory interpretation. She concluded that, by operation
    of ss. 7(1), 9(1), and 9(3) of the
CPA
, the defendant could not
    disclaim liability for any breach of the deemed warranty of providing services
    of a reasonably acceptable quality. She went on to determine that Mr. Schnarr
    would be allowed to advance two distinct causes of action: one for negligence
    and the second for breach of warranty. She found that the negligence claim
    would be subject to the Blue Mountain waiver but that the breach of warranty
    claim would not be subject to that waiver since the portions purporting to
    waive liability for breach of warranty would be void and severed under ss. 9(3)
    and (4) of the
CPA
.

[13]

Blue
    Mountain appeals from that decision.

Background Facts 
Woodhouse v. Snow Valley

[14]

On
    December 23, 2008, Ms. Woodhouse went skiing with her husband and grandson at
    Snow Valley. Ms. Woodhouse purchased a beginner ski package from Snow Valley,
    which included a lift ticket, equipment rental, and a lesson.

[15]

The
    lift ticket itself contained a Release of Liability. Moreover, Ms. Woodhouse was
    also required to execute a Rental Agreement and Release of Liability on
    December 23, 2008 when she purchased the beginner ski package (the Snow Valley
    waiver).
[3]
That document contains a section entitled Waiver of Claims.

[16]

The
    release on the lift ticket and the content of the Snow Valley waiver were never
    explained by Snow Valley to Ms. Woodhouse. However, prior to attending Snow
    Valley on December 23, 2008, Ms. Woodhouse reviewed the Snow Valley waivers
    wording on Snow Valleys website. Nevertheless, Ms. Woodhouse was neither
    informed of nor aware of the
CPA
or any rights it afforded her on or
    prior to December 23, 2008.

[17]

After
    signing the Snow Valley waiver, Ms. Woodhouse and her family took a ski lesson
    on December 23, 2008. After the ski lesson, Ms. Woodhouse and her family used
    the ski facilities for several hours. Ultimately, while using a tow rope, Ms.
    Woodhouse allegedly sustained injuries.

[18]

On
    May 9, 2012, Ms. Woodhouse commenced an action in negligence for the injuries
    that she suffered. The parties eventually agreed to bring a r. 22 special case motion
    that raised five questions of law, all relating to the applicability of the
CPA
to Ms. Woodhouses injuries allegedly sustained at Snow Valley.

[19]

On
    January 13, 2017, McCarthy J. released his reasons on the r. 22 special case
    motion. He held that the
CPA
applied to the instant case.
    Consequently, he concluded that the Snow Valley waiver was presumptively void
    and, therefore, Ms. Woodhouse was entitled to proceed with her claim. Importantly,
    McCarthy J. held that s. 9 of the
CPA
voided the Snow Valley waiver in
    respect of both tort and contract claims. Justice McCarthy found that the
OLA
s
    provisions did not supersede the
CPA
s. However, he also held that a
    court could nonetheless order that Ms. Woodhouse was bound by the Snow Valley waiver
    by virtue of s. 93(2) of the
CPA
.

[20]

Ms.
    Woodhouse appeals from the McCarthy J.s conclusion regarding the applicability
    of s. 93(2) of the
CPA
. Snow Valley cross-appeals from the conclusion
    that s. 9 of the
CPA
voids an otherwise valid waiver under s. 3 of the
OLA
.

Issues on Appeal

[21]

The
    parties framed their grounds of appeal in various ways. However, in my view,
    they can all be grouped into the following broad issues:

(a)

Does s. 9 of the
CPA
conflict with s. 3 of the
OLA
, or
    can the impugned provisions be read harmoniously?

(b)

If they conflict, how should each statute be interpreted and what effect
    should be given to the impugned provisions?

(c)

In any event, does s. 93(2) of the
CPA
allow a court to hold a
    consumer bound to a voided waiver under s. 9(3) of the
CPA
?

Analysis

[22]

At
    the outset, I note that the parties agree that the statutory interpretation
    issues raised by these appeals involve questions of law and thus the standard
    of review is correctness.

[23]

With
    respect to the general principles of statutory interpretation, the Supreme
    Court has repeatedly reaffirmed the modern approach espoused in E. A. Driedger,
Construction of Statutes
, 2nd ed. (Toronto: Butterworths, 1983), at p.
    87 that the words of an Act are to be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament:
Bell ExpressVu
    Ltd. Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26;
    and
Indalex Ltd., Re
, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 136. I
    analyze both statutes in greater detail below to explain the relevant scheme
    and objects of the
OLA
and
CPA
, as well as the legislative
    intent.

(i)

Occupiers Liability Act

[24]

I
    begin with the origins of the
OLA
. The
OLA
came into force in
    1980. It was enacted following the Ontario Law Reform Commissions 1972
Report
    on Occupiers Liability
, which recommended that the common law duty of
    care owed by occupiers
[4]
be replaced with one generalized statutory duty.

[25]

That
    recommendation came into effect with the passage of the
OLA
. It is
    evident from the provisions of the
OLA
that the legislation was
    intended to establish a single primary duty of care that an occupier would owe
    to persons entering upon their premises. Section 3 of the
OLA
also
    prescribes a default standard of care that requires an occupier to take such
    care as is reasonable in the circumstances to keep entrants and their property
    reasonably safe on the premises. The breach of that statutory standard of care
    would make the occupier liable for injuries sustained by those entrants. As
    Lewis N. Klar and Cameron Jeffries say in their text,
Tort Law
, 6th
    ed. (Toronto: Thomson Reuters, 2017), at p. 723:

It seems irrefutable that the legislation was intended to be
    exclusive and comprehensive, in so far as the liability of occupiers is
    concerned.

[26]

This
    intention is made clear by s. 2 of the
OLA
which reads:

Subject to section 9, this Act applies in place of the rules of
    the common law that determine the care that the occupier of premises at common
    law is required to show for the purpose of determining the occupiers liability
    in law in respect of dangers to persons entering on the premises or the
    property brought on the premises by those persons.

[27]

The
    two critical sections of the
OLA
, for the purpose of these appeals,
    are ss. 3 and 4. I refer to the following portions of those two sections:

3(1) An occupier of premises owes a duty to take such care as
    in all the circumstances of the case is reasonable to see that persons entering
    on the premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies
    whether the danger is caused by the condition of the premises or by an activity
    carried on on the premises.

(3) The duty of care provided for in subsection (1) applies
    except in so far as the occupier of premises is free to and does restrict,
    modify or exclude the occupiers duty.

4(1) The duty of care provided for in subsection 3(1) does not
    apply in respect of risks willingly assumed by the person who enters on the
    premises, but in that case the occupier owes a duty to the person to not create
    a danger with the deliberate intent of doing harm or damage to the person or
    his or her property and to not act with reckless disregard of the presence of
    the person or his or her property.

[28]

When
    considering the purpose of the
OLA
, it is of some importance to
    recognize that part of the rationale for including s. 4 in the statute was to
    encourage private landowners to voluntarily make their property available for
    recreational activities by limiting their liability. This was made clear in the
Discussion Paper on Occupiers Liability and Trespass to Property
issued
    by the Ministry of the Attorney General in May 1979. It was also referred to by
    Allen M. Linden and Bruce Feldthusen in their text,
Canadian Tort Law
,
    10th ed. (Toronto: LexisNexis Canada, 2015), at
§18.66
:

This provision was included for the purpose of protecting the
    interests of the agricultural community and to promote the availability of land
    for recreational activities. The Ontario Law Reform Commissions draft Act did
    not contain this particular section.

[Citation omitted.]

[29]

Moreover,
    although s. 3(1) of the
OLA
prescribes the primary duty and standard
    of care, the
OLA
also expressly preserves situations where a higher
    obligation or standard may apply because of specific legislation or the common
    law under s. 9(1):

Nothing in this Act relieves an occupier of premises in any
    particular case from any higher liability or any duty to show a higher standard
    of care that in that case is incumbent on the occupier by virtue of any
    enactment or rule of law imposing special liability or standards of care on
    particular classes of persons including, but without restricting the generality
    of the foregoing, the obligations of,

(a) innkeepers, subject to the
Innkeepers
    Act
;

(b) common carriers;

(c) bailees.

[30]

Thus,
    while the Legislature left to itself the right to establish a higher liability
    or duty of care for occupiers in specific situations, it did not see fit to
    amend the
OLA
to include obligations under the
CPA
. Moreover,
    as I will explain in my reasons below, the potentially higher obligations
    under s. 9 of the
CPA
cannot be read into this section.

(ii)

Consumer Protection Act

[31]

I
    now turn to the origins of the
CPA
. The
CPA
was enacted in
    2002. It was adopted to modernize consumer law in Ontario. Prior to the enactment
    of the
CPA
, consumer protection was found in nine different statutes.
    The purpose of the
CPA
was to consolidate those statutes and update
    the law to provide protections for newer businesses and newer forms of
    transactions that were entering the marketplace.

[32]

Two
    sections of the
CPA
are of particular importance to these appeals. One
    is s. 7(1) which reads:

The substantive and procedural rights given under this Act
    apply despite any agreement or waiver to the contrary.

The other is s. 9 which reads in relevant parts:

9(1) The supplier is deemed to warrant that the services
    supplied under a consumer agreement are of a reasonably acceptable quality.

[]

(3) Any term or acknowledgement, whether part of the consumer
    agreement or not, that purports to negate or vary any implied condition or
    warranty under the
Sale of Goods Act
or any deemed condition or warranty
    under this Act is void.

(4) If a term or acknowledgement referenced in subsection (3)
    is a term of the agreement, it is severable from the agreement and shall not be
    evidence of circumstances showing an intent that the deemed or implied warranty
    or condition does not apply.

[33]

With
    respect to these sections, I should note that there is no disagreement between
    the parties that the plaintiffs are consumers, the defendants are suppliers,
    and that the contracts that they entered into are consumer agreements.

[34]

Prior
    to the enactment of the
CPA
, the Ministry of Consumer and Commercial
    Relations (now the Ministry of Government and Consumer Services, the Ministry)
    circulated a consultation paper entitled Consumer Protection for the 21
st
Century. It explained the reasoning behind the proposed enactment of the
CPA
.
    Two salient facts can be drawn from that consultation paper.

[35]

First,
    Proposal 4(a) at p. 9 of the consultation paper points out that consumer law
    should not apply to transactions already governed under regulatory regimes that
    adequately address consumer protection. The paper expands on this point, at
    pp. 9-10:

Although any transaction in which individuals pay for anything
    is in some sense a consumer transaction, there are
several areas in which
    other specialized legal regimes apply instead of consumer law
[]
The
    Ministry is not proposing that general consumer law apply to these sectors.

The proposed broader definition of consumer transactions would
    also call into question its application to areas that are already regulated by
    industry- and sector-specific legislation...

In such cases, having two applicable legal regimes could be
    confusing, both for the public and the regulated sector. Similarly, having two
    regulatory bodies creates duplication

[Emphasis added.]

[36]

Second,
    the consultation paper discusses all of the industry and sector specific
    concerns that drove the goal of introducing new consumer protection
    legislation. Yet there is no commentary at any point in the consultation paper
    that identifies problems with the current state of legislation relating to
    occupiers, or problems with consumer transactions involving occupiers insofar
    as they provide their premises for the use of consumers engaging in
    recreational activities.

[37]

Indeed,
    on a fair reading of the consultation paper and the
CPA
itself, it is
    evident that the principal concern was with respect to financial transactions,
    and the potential for scams to operate to the detriment of consumers. There is
    nothing to suggest that changing the existing framework governing liability for
    personal injuries sustained by persons availing themselves of premises for
    recreational activities was in any way an objective of the
CPA
.

[38]

Mr.
    Schnarr and Ms. Woodhouse, and the intervener Ministry, point to the fact that
    the
CPA
exempts certain statutes under s. 2(2) and the
OLA
is
    not one of them. The thrust of this argument is based on
expressio unius
    est exclusio alterius
. However, as I will explain in my reasons below, the
    principle that things are implicitly excluded when others are expressly
    enumerated is not an absolute rule. Key to this analysis is the fact that when
    one looks at the types of exemptions provided by the
CPA
, both in s.
    2(2) and in O. Reg. 17/05, it is clear that they are primarily directed at
    financial transactions and professional services. They are not directed at the
    type of activities covered by the
OLA
.

[39]

There
    is nothing in the background to the passage of the
CPA
, or in the
    provisions of the
CPA
itself, that would suggest that it was intended
    to regulate duties of care of the type stipulated by the
OLA
, or that
    it was intended to regulate liability arising from the use of premises that are
    subject to the
OLA
. This conclusion is consistent with the
    consultation paper, which makes it clear that it was not the intention of the
CPA
to apply to areas that were already regulated by industry- and sector-specific
    legislation.

[40]

Having
    set out the background objects of the
CPA
and the
OLA
, I turn
    now to analyze whether they conflict.

(a)

Does s. 9 of the
CPA
conflict with s. 3 of the
OLA
?

[41]

The
    Supreme Court set out the principles of statutory interpretation with respect to
    the analysis of conflicting statutes in
Thibodeau v. Air Canada
, 2014
    SCC 67, [2014] 3 S.C.R. 340, at paras. 88ff. In that case, Air Canada failed to
    provide services in French on some international flights as required under the
Official
    Languages Act
, R.S.C. 1985, c. 31 (4th Supp.). The applicant applied to
    the Federal Court for a remedy of damages but Air Canada contended that the
Carriage
    by Air Act
, R.S.C. 1985, c. C-26 precluded such liability. In analyzing
    whether a conflict existed between the two statutes, the Supreme Court held at
    para. 92:

First, courts take a restrictive approach to what constitutes a
    conflict in this context. Second, courts find that there is a conflict only
    when the existence of the conflict, in the restrictive sense of the word,
    cannot be avoided by interpretation. Overlap on its own, does not constitute
    conflict in this context, so that even where the ambit of two provisions
    overlaps, there is a presumption that they both are meant to apply, provided
    that they can do so without producing absurd results. This presumption may be
    rebutted if one of the provisions was intended to cover the subject matter
    exhaustively. Third, only where a conflict is unavoidable should the court
    resort to statutory provisions and principles of interpretation concerned with
    which law takes precedence over the other.

[42]

I
    recognize that the above rules of statutory interpretation urge an approach
    that avoids a finding that two statutes conflict. This approach is premised
    upon the presumption of perfection.
[5]
However, those interpretive rules still recognize that conflicts will arise.
    For example, courts have held that a conflict between two statutes arises
    where:

(a)

provisions are so inconsistent or repugnant to each other that they
    are incapable of standing together (
Reference re Broadcasting Act, S.C.
    1991 (Canada)
, 2012 SCC 68, [2012] 3 S.C.R. 489, at paras. 41-45);

(b)

the application of one provision must implicitly or explicitly preclude
    the application of another (
Lévis (Ville) v. Côté
, 2007 SCC 14, [2007]
    1 S.C.R. 591, at paras. 48-49); or

(c)

two pieces of legislation are directly contradictory or where their
    concurrent application would lead to unreasonable or absurd results (
Lévis
,
    at para. 47 and
Thibodeau
, at para. 95).

[43]

In
    this case, as I have already alluded to, there is a clear and direct conflict
    between the
OLA
and the
CPA
 and it is an unavoidable one.
    The
OLA
permits an occupier to obtain a waiver of liability. The
CPA
precludes a supplier from obtaining a waiver of liability. In other words, what
    the
OLA
permits, the
CPA
prohibits.

[44]

The
    problem with the presumption of perfection is, of course, that it ignores the
    practical realities in which legislation is enacted. As Ruth Sullivan says in
    her text,
Sullivan on the Construction of Statutes
, 6th ed. (Toronto:
    LexisNexis Canada, 2014), at 11.32:

This analysis ignores the realities of the way legislation is
    made and the way the statute book evolves. It ignores, for example, the fact
    that legislative schemes are developed, introduced and implemented by different
    departments with different legislative priorities. It ignores the tight
    timelines and political pressures under which much legislation is drafted.

[45]

That
    observation has direct application to the situation here. The
OLA
is
    administered by the Ministry of Tourism, Culture and Sport. The
CPA
is
    administered by the Ministry of Government and Consumer Services. The two
    statutes were enacted by two different governments more than twenty years
    apart. Further, as I mentioned above, there is nothing in the consultation
    paper relating to the
CPA
, or otherwise in the record before this
    court, that suggests that, in enacting the
CPA
, any consideration was
    given to the
OLA
or to the impact that any of the provisions in the
CPA
might have on the
OLA
.

[46]

Mr.
    Schnarr and Ms. Woodhouse try to avoid the reality of a conflict between the
    statutes by submitting that there is a distinction between the ability of a
    party to sue either in contract or in tort. On that point, with due respect to
    Tzimas J., suggesting that the waiver is valid with respect to the tortious
    negligence claims, but invalid with respect to the contractual warranty claims,
    is a distinction without a difference. In this regard, Mr. Schnarr and Ms.
    Woodhouse relied heavily on the decision in
BG Checo International Ltd. v.
    British Columbia Hydro and Power Authority
, [1993] 1 S.C.R. 12. With
    respect, that decision does not support their position because they
    mischaracterize the nature of the issue that was engaged in that case. There is
    no doubt that the decision in
BG Checo
holds that a party has the
    choice whether to sue in contract or in tort. Indeed, they may decide to sue in
    both. No one disputes that principle.

[47]

In
    this case, however, we are not dealing solely with duties arising from tort or
    contract. Here we are dealing with a duty of care imposed by statute:
Mackay
    v. Starbucks Corp.
, 2017 ONCA 350, 413 D.L.R. (4th) 220, at paras. 10 and
    46. It is the
OLA
s statutorily imposed duty that all occupiers must
    meet, regardless of whether the occupier has a relationship with an injured
    party that is founded in contract or in tort. The decision in
BG Checo
does not assist Mr. Schnarr and Ms. Woodhouse in this regard. Indeed, it
    arguably assists Blue Mountain and Snow Valley because the decision recognizes
    that parties can contractually alter the rights that might otherwise be imposed
    upon them by the common law. As LaForest and McLachlin JJ. said, at p. 27:

The rule is not that one cannot sue concurrently in contract
    and tort where the contract limits or contradicts the tort duty. It is rather
    that the tort duty, a general duty imputed by the law in all the relevant
    circumstances, must yield to the parties superior right to arrange their
    rights and duties in a different way.

[48]

The
OLA
permits an occupier to restrict, modify or exclude the duty
    imposed by the statute regardless of whether a claim is founded in contract or
    in tort. The waivers in the instant appeals dealt with both Blue Mountains and
    Snow Valleys contractual and tort obligations. The effort to avoid a conflict
    between the statutes on the basis that the
OLA
deals with tort
    liability and the
CPA
deals with contractual liability is not only
    artificial, it does not reflect the fact that the duty of care originates from
    the statute itself, nor does it take into account that the statute allows for
    the modification of the duty and liability arising therefrom. Moreover,
    adopting such a restricted interpretation of s. 3(3) of the
OLA
would
    go against the development trends in private law. As the majority noted in
BG
    Checo
, at p. 21, the law should move towards the elimination of
    unjustified differences between the remedial rules applicable to the two
    actions [tort versus contract], thereby reducing the significance of the existence
    of the two different forms of action.

[49]

Indeed,
    I agree with Tzimas J.s observation, at para. 99 of her reasons:

On their face, the statutes take different approaches to
    waivers. This is so because they have very different legislative purposes. Waivers
    in the OLA are designed to shield occupiers. The rejection of waivers in the CPA
    is designed to shield consumers. A conflict in the application of both statutes
    arises when consumers clash with suppliers who are also occupiers.

[50]

In
    my view, despite Mr. Schnarrs and Ms. Woodhouses best efforts to advance the
    contrary proposition, there can be no reasonable conclusion other than that the
    two statutes conflict when one attempts to apply them to occupiers under the
OLA
who also happen to be suppliers under the
CPA
. Simply put, under the
OLA
,
    an occupier can obtain a waiver of liability (within limits as defined by the
    common law)
[6]
from any person coming onto their premises. However, that same occupier, if
    they are also a supplier under the
CPA
, cannot obtain an equivalent
    waiver. This, despite the fact that the factual foundation for both tort and
    contract causes of action are the same. A plain reading of the amended
    statements of claim allows for no other conclusion.

[51]

As
    the instant appeals amply demonstrate, the result is a clear conflict. On the
    one hand, Blue Mountain and Snow Valley have lawful waivers that would exclude
    their liability for the injuries suffered by Mr. Schnarr and Ms. Woodhouse,
    respectively, and yet they are told that those waivers are of no effect by
    virtue of the
CPA
. It is of no practical comfort to Blue Mountain and
    Snow Valley to be told that their waivers protect them from the negligence
    claims but not from the warranty claims. The result for the ski resorts is the
    same. They will be held liable for something that they thought they had
    lawfully protected themselves against. In my view, such a result is both a
    direct contradiction and an absurd result.

(b)

If the
CPA
and
    the
OLA
conflict, how should the conflict be resolved?

[52]

The
    principles of statutory interpretation urge an approach that allows both
    statutes to maintain their maximum application and effectiveness. The
    principles affecting the analysis with respect to which statute should take
    precedence include:

(i)

where a class of things is modified by general wording that expands the
    class, the general wording is usually restricted to things of the same type as
    the listed items (
ejusdem generis
);

(ii)

when one or more things of a class are expressly mentioned, others of
    the same class are excluded (
expressio unius est exclusio alterius
)
;

(iii)

the exhaustiveness doctrine;

(iv)

the provisions of a general statute must yield to those of a special one
    (
generalia specialibus non derogant
); and

(v)

the absurdity doctrine.

[53]

I
    will discuss each in turn.

Class of things

[54]

Section
    9(1) of the
OLA
provides that the statute does not restrict the
    imposition of a higher liability or standard of care upon occupiers. It
    provides innkeepers, common carriers, and bailees as examples of where a higher
    liability or standard of care would apply even if those classes of persons are simultaneously
    occupiers. The class of persons is not exhaustive in s. 9(1). However, in my
    view, the type of situations that would impose a special liability or
    standards of care on occupiers under s. 9(1) should be read
ejusdem
    generis
and be restricted to situations that are similar to the enumerated
    examples.

[55]

Indeed,
    the situations in which Ontario courts have imposed a higher standard of care
    upon an occupier are squarely analogous to the enumerated classes in s. 9(1).
    For example, in
Miaskowski (Litigation guardian of) v. Persaud
, 2015
    ONCA 758, 393 D.L.R. (4th) 237, at para. 40, this court held that occupiers who
    are also landlords remain subject to the duties imposed on landlords under the
Residential
    Tenancies Act, 2006
, S.O. 2006, c. 17. And in
Miller v. Canada
    (Attorney General)
, 2015 ONSC 669, at para. 24, Leach J. held that the
    Crowns duty to take reasonable and adequate measures to protect an inmate from
    a reasonably foreseeable risk of injury and predictable dangers supplemented
    the Crowns duties under the
OLA
as an owner and occupier of
    penitentiaries.

[56]

The
CPA
does not purport to apply a special liability or higher standard
    of care for actions that are incidental to the role of an occupier. Rather, the
CPA
seeks to regulate the entirely separate category of consumer
    transactions between a supplier and consumer. As such, reading the section
    pursuant to the principle of
ejusdem generis
, it is clear that the
    application of any special liabilities or higher standards imposed by the
CPA
were not meant to be preserved under s. 9(1) of the
OLA
.

Express mention

[57]

As
    alluded to above, the fact that s. 2(2) of the
CPA
and its subordinate
    regulations do not include the
OLA
in its prescribed list of
    exemptions is not the end of the matter. The interpretive rule that the express
    mention of one thing means the implied exclusion of another is rebuttable, and
    has not been accepted by the courts where the proposed interpretation disregards
    the underlying objectives of the statute:
Copthorne Holdings Ltd. v. Canada
,
    2011 SCC 63, [2011] 3 S.C.R. 721, at para. 111. Indeed, this court has cautioned
    against overreliance on the maxim:
Fleming v. Massey
, 2016 ONCA 70,
    128 O.R. (3d) 401, at paras. 41-43.

[58]

In
    these appeals, there is no evidence in the record that in drafting the
CPA
and the
OLA
, the Legislature turned its mind to the interplay of these
    two statutes. There is no basis for expecting an express reference to the
OLA
in the
CPA
s exemptions. As such, there is little value to the
expressio
    unius
argument in these appeals and it provides no basis to infer that the
    Legislature intended for the
CPA
to supersede the
OLA
.

Exhaustiveness

[59]

As
    mentioned above, the
OLA
was a statutory scheme that replaced the
    common law with respect to occupiers liability. Significantly, it replaced the
    different common law standards of care applicable to entrants on premises (including
    contractual entrants) with a single, unified statutory duty to take reasonable
    care to see that entrants and their property are reasonably safe on the
    occupiers premises. Furthermore, the
OLA
expressly allows for the
    restriction, modification, or exclusion of the statutory duty.

[60]

In
    my view, the
OLA
was therefore intended to be an exhaustive scheme at
    least in relation to the liability of occupiers to entrants on their premises flowing
    from the maintenance or care of the premises. The very purpose of this
    legislative scheme would be undermined if the
CPA
were allowed to
    reintroduce another novel contractual duty that purports to subject occupiers
    to an obligation to warrant that their premises are of a reasonably acceptable
    quality. As such, the fact that s. 9 of the
CPA
undermines the very
    purpose of the
OLA
is a factor that militates towards holding that the
OLA
supersedes the
CPA
.

Specific overrules general

[61]

I
    appreciate that determining whether legislation is general or specific can be a
    difficult, and perhaps a somewhat theoretical, exercise. Indeed, it may very
    well be driven by the vantage point of the observer who is asked to make the
    determination. The arguments made by the parties in these appeals reflect that
    divergence.

[62]

However,
    in my view, in this factual situation, the
OLA
must be reasonably seen
    as dealing directly with the core issue, that is, the ability of occupiers of
    premises to obtain waivers of liability. In contrast, the
CPA
deals
    generally with all forms of consumer transactions. Buying a ski pass is but one
    of a myriad of consumer transactions to which the
CPA
could apply. The
OLA
, on the other hand, deals directly, and substantially, with
    activities on premises (as defined), including the operation of recreational
    activities on premises. Indeed, as I have explained above, part of the
    rationale for permitting occupiers to obtain waivers of liability was to
    promote the use of their properties by others for those very activities.

[63]

Adopting
    this approach does not invalidate the
CPA
or otherwise render it of no
    force or effect. Rather, this result simply recognizes that the
OLA
carves out consumer transactions that relate to activities covered by the
OLA
from the application of the
CPA
. Put another way, to the extent that
    an occupier engages with members of the public for the use of the occupiers
    premises in return for payment, and thus creates a consumer agreement, the
    provisions of the
CPA
do not apply to that agreement. At the same
    time, insofar as parties who are occupiers engage with members of the public
    and create consumer transactions that do not relate to persons entering on
    premises or the property brought on the premises by those persons (
OLA
,
    s. 2), then the
CPA
would still apply to those consumer transactions.

[64]

This
    result is consistent with the approach taken in
R. v. Greenwood
(1992),
    7 O.R. (3d) 1 (C.A.), 70 C.C.C. (3d) 260 where, in commenting on the
    application of the principle of
generalia specialibus non derogant
, Griffiths
    J.A. said, at p. 266:

Applying this maxim of construction, the provisions of the
    special statute are not construed as repealing the general statute, but as
    providing an exception to the general.

Avoiding absurdity

[65]

The
    application of the principle that the specific overrules the general, along
    with the exhaustiveness principle in these appeals is also consistent with the
    objective of avoiding an absurdity, which is what I view the positions adopted
    by the motion judges below to result in. It is clear that one of the purposes
    of the
OLA
was to provide protection to occupiers who permitted persons
    to come onto their lands for the purpose of recreational activities. The result
    of the decisions below is that one of the fundamental purposes of the
OLA
is defeated, not through an intentional amendment to the
OLA
, but
    through an interpretation of the
CPA
that results in an indirect and
    implied amendment.

[66]

I
    am reinforced in my conclusion in this regard by the actions of the Legislature
    in 2016 when it enacted the
Ontario's Trails Act, 2016
, S.O. 2016, c.
    8, Sched. 1. This legislation, among other things, amended the
OLA
to
    provide protection to occupiers who permitted their premises to be used by
    members of the public for recreational trails, including hiking, portaging, or
    snowmobiling trails. These amendments resulted from concerns expressed by landowners
    of being exposed to liability as a result of allowing access to trails on their
    land. Volunteer non-profit clubs and associations taking care of those trails
    also voiced similar concerns.

[67]

The
    Minister of Tourism, Culture and Sport explained the purpose of the legislation
    at the time that it was being debated. He said, in part:

One of the key pieces to this legislation is increasing the
    number of trail users by adding clarity to the Occupiers Liability Act. Thats
    an important piece that we think needs to be put in place here in Ontario. We
    know that trail tourism in the province of Ontario is part of a larger tourism
    sector in the province, which is a $28-billion; sector.

[]

Currently there exists some legal ambiguity around what
    standard of care is owed to the users of trails. For example, if an ATV club
    charges membership fees for coordinating rides on a portion of an Ontario trail
    network, it is legally questionable what level of care is required from the
    business and from the owner of the trail. If Bill 100 is passed, it will
    clarify legislation, encouraging further participation between businesses and
    the owners of trails.

[68]

It
    is difficult to accept that the Legislature went through the exercise of
    amending the
OLA
for the purpose of clarifying the liability of
    occupiers, and to encourage them to open their property for use by members of
    the public, all to have it rendered of no force or effect because of the
    existence of the
CPA
. Indeed, the fact that the Legislature, in this
    instance, amended the
OLA
to address liability issues surrounding the
    recreational use of property, with no mention of or reference to the
CPA
,
    strikes me as clear evidence that the Legislature did not view the
CPA
as having any role to play in this area.

[69]

The
    conclusion that the
CPA
does not operate within the sphere of
    activities governed by the
OLA
does not undercut the effectiveness of
    the
CPA
, nor does it offend public policy. Rather, it allows for the
    commercial flexibility necessary to promote the goal of encouraging landowners
    to permit their premises to be used for recreational activities. This objective
    was noted by the Supreme Court in
BG Checo
,

where La Forest and
    McLachlin JJ. said, at p. 27:

This principle is of great importance in preserving a sphere of
    individual liberty and commercial flexibility. Thus if a person wishes to
    engage in a dangerous sport, the person may stipulate in advance that he or she
    waives any right of action against the person who operates the sport facility:
Dyck
    v. Manitoba Snowmobile Association Inc.,
[1985] 1 S.C.R. 589.

[70]

I
    note that, in
Dyck
, the court held that there were no grounds of
    public policy that would lead to the striking down of a waiver of claims clause.

[71]

This
    conclusion also does not offend the principle that consumer protection
    legislation should be interpreted generously. That principle only applies where
    the legislation operates validly. It does not apply to expand the jurisdiction
    of consumer protection legislation to occupy an area that is already covered by
    other specific legislation. Decisions such as
Seidel v. TELUS
    Communications Inc
.
, 2011 SCC 15, [2011] 1 S.C.R. 531 and
Weller
    v. Reliance Home Comfort Limited Partnership
, 2012 ONCA 360, 110 O.R. (3d)
    743 do not assist in determining the central point at issue in these appeals.

[72]

Finally,
    this conclusion is also consistent with the principle that broad language in
    legislation may be given a restricted interpretation where necessary in order
    to avoid an absurdity. As Blair J.A. said in
Blue Mountain Resorts Ltd. v.
    Bok
, 2013 ONCA 75, 114 O.R. (3d) 321, at para. 51:

It is also consistent with the principle that broad language in
    a statute may be given a somewhat restricted interpretation where necessary in
    order to avoid absurdity and to give the words their appropriate meaning,
    having regard to their context, the purpose of the Act, and the intention of
    the Legislature.

[73]

As
    such, I would conclude that ss. 7 and 9 of the
CPA
do not operate to
    void otherwise valid waivers executed under s. 3(3) of the
OLA
.

(c)

Does s. 93(2) of the
CPA
allow a court to hold a consumer bound to a voided waiver under s. 9(3)?

[74]

Ms.
    Woodhouses appeal raises a separate issue with respect to McCarthy J.s
    conclusion that s. 93(2) of the
CPA
might be used as a mechanism to
    hold a consumer to a waiver of liability, even if s. 9(3) of the
CPA
voided
    the waiver. While Tzimas J. did not make any direct finding on this issue, I
    believe a fair reading of her reasons suggests that she reached the opposite
    conclusion. While it is technically unnecessary for me to address this issue in
    light of my conclusions above, I will deal with it for the sake of
    completeness, especially since the issue was fully argued by the parties. I
    believe that the issue can be dealt with briefly.

[75]

Section
    93 of the
CPA
reads:

(1) A consumer agreement is not binding on the consumer unless
    the agreement is made in accordance with this Act and the regulations.

(2) Despite subsection (1), a court may order that a consumer
    is bound by all or a portion or portions of a consumer agreement, even if the
    agreement has not been made in accordance with this Act or the regulations, if
    the court determines that it would be inequitable in the circumstances for the
    consumer not to be bound.

[76]

In
    concluding that the court could rely on s. 93(2) to hold a consumer to a waiver
    of liability, notwithstanding that such waiver would be void under s. 9 of the
CPA
,
    McCarthy J. said, at para. 43 of his reasons:

I conclude therefore, that in situations where a consumer
    agreement contains terms or acknowledgments rendered presumptively void by
    operation of s. 9(3) and where the parties cannot agree to sever those
    offending terms from the consumer agreement under s. 9(4), the court may
    exercise its jurisdiction to sever the offending terms of the consumer
    agreement. It may do so as part of its s. 93(2) inquiry into whether it would
    be inequitable in the circumstances for the consumer not to be bound by the
    original agreement, including those terms and acknowledgments that would be
    void but for the equitable jurisdiction of the court.

[77]

In
    my view, the motion judge erred in so concluding. The purpose behind s. 93(2)
    is to avoid situations where a consumer, who has received the benefit of a consumer
    agreement, attempts to retain those benefits without performing his or her side
    of the agreement because of a technical breach of the
CPA
. Section
    93(2) is not intended to permit the court to hold a consumer to a consumer
    agreement that violates one of the basic tenets of the
CPA
, especially
    when the provision is void.

[78]

In
    that regard, it is important to observe, and give effect to, the exact wording
    of s. 9(3) of the
CPA
. It reads:

Any term or acknowledgement, whether part of the consumer
    agreement or not, that purports to negate or vary any implied condition or
    warranty under the
Sale of Goods Act
or any deemed condition or warranty
    under this Act is void.

[79]

Two
    points can be taken from that wording. One is that it applies to any term or
    acknowledgment whether it is part of the consumer agreement or not. Thus, s.
    9(3) has a very broad reach. It is clear that it was intended to catch any
    attempt to negate or vary the deemed warranty provided by s. 9(1) of the
CPA
,
    even if the attempt is outside of the consumer agreement itself. The other is
    that s. 9(3) renders any such term or acknowledgement void. A term that is void
    is a term that is a nullity. It is different in kind from a term that is
    voidable. A term that is void has no legal force or effect and there is nothing
    to be saved by a curative provision:
Price v. Turnbulls Grove Inc
.
,
    2007 ONCA 408, 85 O.R. (3d) 641, at paras. 34-37.

[80]

Adopting
    a purposive interpretation of the
CPA
, there is nothing that would
    suggest that the Legislature intended that, notwithstanding the direct language
    used in s. 9(3), courts would be able to hold a consumer to a waiver of the deemed
    warranty provided by s. 9(1) of the
CPA
. Indeed, it would be hard to
    conceive of a factual situation where it would be equitable to do so in light
    of the fundamental purpose of the
CPA
.

[81]

I
    conclude therefore that s. 93(2) cannot be used to give effect to a waiver that
    is voided by s. 9(3) of the
CPA
.

Conclusion

[82]

The
    two appeals and the cross-appeal are all allowed. The orders below are set
    aside. Mr. Schnarr is bound by the Blue Mountain waiver and Ms. Woodhouse is
    bound by the release in her lift ticket and the Snow Valley waiver. This is so
    regardless of whether their claims are in tort or for breach of warranty. The
    proceedings are remitted back to the Superior Court of Justice to proceed in
    accordance with these reasons.

[83]

The
    parties may make written submissions on the matter of costs. Blue Mountain and
    Snow Valley shall file their submissions within 10 days of the release of these
    reasons. Mr. Schnarr and Ms. Woodhouse shall file their submissions within 10
    days thereafter. No reply submissions are to be filed without leave of the
    court. None of the costs submissions shall exceed five pages in length.

[84]

There
    will be no order for costs either in favour of or against any of the
    interveners.

Released: DD MAR 28 2018                       I.V.B.
    Nordheimer J.A.

I
    agree. Doherty J.A.

I agree.
    David Brown J.A.



APPENDIX A
Blue Mountain Waiver



APPENDIX B
Snow Valley Waive






[1]
This principle is captured by the Latin maxim
generalia
    specialibus non derogant
.



[2]
Relevant portions of
the Blue Mountain waiver are reproduced
    in Appendix A to these reasons.



[3]

Relevant portions of the Snow Valley waiver are reproduced
    in Appendix B to these reasons.



[4]

The common law standard of care for occupiers varied
    depending on whether the person entering the premises was an invitee, licensee,
    trespasser, or contractual entrant.



[5]

Sometimes also referred to as the presumption of
    coherence.



[6]

See Department of Justice,
Report on Occupiers
    Liability
(Ontario: Ontario Law Reform Commission, 1972), at pp. 14-16
    where the report states the words where an occupier is free to [under s.
    3(3)] are used to ensure that an occupiers power to extend, restrict, modify
    or exclude his duty shall be no greater than it was under common law.


