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Occupier Liability Waiver Excepted: Conflict In Law Between Occupier Liability and Consumer Protection Statutes
Question: How do the Consumer Protection Act and the Occupier’s Liability Act interact regarding liability waivers?
Answer: The interplay creates a complex legal landscape, as the Consumer Protection Act, 2002, protects consumer rights that cannot be waived, while the Occupier’s Liability Act allows for limitation of liability through waivers. This conflict was highlighted in Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, revealing the necessity for careful navigation of both statutes to ensure consumer protections are upheld. For clarity in these legal matters, consider consulting a professional to understand your rights.
The Interplay Between Occupier Liability and Consumer Protection Statutes
Generally, the Consumer Protection Act, 2002, S.O. 2002, Chapter 30, Schedule A, prescribes rights that, according to section 7 of the Consumer Protection Act, 2002, are mandatory despite any attempt to waive or override such rights; however, a notable legal predicament materialized in the case of Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, where section 7 and section 9 of the Consumer Protection Act, 2002, confronted section 3(3) of the Occupier's Liability Act, R.S.O. 1990, c. O.2, thereby raising the core issue involving the validity of waivers of liability that appear to violate the Consumer Protection Act, 2002.
Conflict Within Consumer Protection and Occupier's Liability Statutes
Essentially, the Consumer Protection Act, 2002, aims to safeguard consumer rights that are protected from variance, including waiver, per section 7 which mandates that the rights granted within the Consumer Protection Act, 2002, are unrelinquishable despite any contract terms purporting to relinquish or other waive the prescribed consumer protection rights includiing those rights prescribed in section nine of the Consumer Protection Act, 2002, relating to the quality standards for services within consumer agreements. The conflict between laws arises whereas section 3(3) of the Occupier's Liability Act, allows occupiers of premises to limit liability through the use of waivers; and accordingly, such creates discord with the consumer protection statute.
The Law
The relevant sections of the Consumer Protection Act, 2002, and the Occupier's Liability Act, state:
Consumer Protection Act, 2002,
S.O. 2002, Chapter 30, Schedule A, section 2, section 7, and section 9
Application
2 (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.
...
No waiver of substantive and procedural rights
7 (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.
...
Quality of services
9 (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.
Quality of goods
(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.
Same
(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.
Same
(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.
Occupier’s duty
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.
Idem
(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.
Idem
(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 occupier’s duty.
Conflicting Statute Implications
Within the legal sphere, conflicts between statutes can result in complex cases where overlapping laws exhibit discordance. The Schnarr case highlighted such a concern and raised these issues:
- The Scrutiny of Liability Waivers:
The primary issue revolved around whether waivers of liability, as permitted by the Occupier's Liability Act, were valid in consumer transactions where section 7 and section nine of the Consumer Protection Act, 2002, were contravened. - The Statutory Conflict:
The incompatibility of allowing waivers to override specified consumer protection standards resulted in legal uncertainty and ambiguity regarding which statute held precedence. - The Judicial Interpretation:
The Schnarr case necessitated judicial interpretation to determine whether the waiver provisions of the Occupier's Liability Act, could coexist with the unwavering consumer rights under the Consumer Protection Act, 2002, without resulting in an impractical or inequitable outcome.
Analysis of Jurisprudence and Statutory Interpretation
In these conflicting statutes, courts must apply principles of statutory interpretation to discern legislative intent and determine the hierarchy or compatibility of statutory provisions. In Schnarr, the Ontario Court of Appeal acknowledged the inherent conflict, indicating that the special provisions of the Occupier's Liability Act regarding waivers should prevail over the general prohibitive clauses of the Consumer Protection Act, 2002, to ensure the effective operation of both legal frameworks.
Conclusion
The interplay between sections of the Consumer Protection Act, 2002 and the Occupier's Liability Act represents a complex legal terrain. Recognizing and addressing statutory conflicts ensures protections remain robust while also affording flexibility for lawful waivers in specified contexts. As jurisprudence evolves, those governed by these statutes would benefit from a continuous appraisal of the legal frameworks.