Waiver of liability was read down in accordance with doctrine of notional severance

Ontario civil | Commercial Law

Trade and commerce

Consumer protection

Waiver of liability was read down in accordance with doctrine of notional severance

Plaintiff voluntarily purchased season pass at ski resort and agreed to waiver for recreational use of defendant’s property. Plaintiff brought action for negligence related to injury while skiing at defendant’s ski resort. According to Consumer Protection Act, if consumer signs waiver of liability with supplier that waiver was unenforceable as it related to substantive and procedural rights that were protected by Act. Section 7(1) vitiates waiver of Act rights and returns them to consumer. Plaintiff wanted s. 7 of Act to interpret it in manner so as to vitiate defendant’s entire comprehensive waiver/release of liability which he signed. Plaintiff’s proposed interpretation of s. 7(1) of Act would have effect of eliminating protections afforded to occupiers by virtue of ss. 3(3) and 5(3) of Occupiers Liability Act which allows for waiver of liability for negligence claims. Plaintiff brought motion for judicial determination of question of law concerning application and breadth of s. 7(1) of Consumers Protection Act. Motion granted. Particular right at issue was deemed warranty that consumer shall receive services of reasonably acceptable quality as articulated in s. 9(1) of Consumer Protection Act. By operation of s. 7(1) of Act defendant could not disclaim liability for any breach of deemed warranty contemplated by s. 9(1) of Consumer Protection Act. Defendant’s waiver was read down in accordance with doctrine of notional severance to exclude from its ambit claims that involve protection of substantive and procedural rights contemplated by Act and remainder of waiver remained enforceable. To strike whole waiver, when waiver contemplated more than just consumer protection claims, would be contrary to legislative intent of Consumer Protection Act.
Schnarr v. Blue Mountain Resorts Ltd. (2017), 2017 CarswellOnt 373, 2017 ONSC 114, E.R. Tzimas J. (Ont. S.C.J.).

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