by Mauro D'AgostinoOccupiers’ Liability Act Trumps Consumer Protection Act
A three-member panel of the Court of Appeal held that the Consumer Protection Act (CPA), specifically sections 7 and 9, undermine section 3 of the Occupiers’ Liability Act (OLA) and, therefore, cannot be used to void a liability waiver.
This case involved appeals from two separate Superior Court decisions inSchnarr v. Blue Mountain Resorts Ltd. and Woodhouse v. Snow Valley. At the heart of this case was whether the OLA or the CPA governed the relationship between the parties. The plaintiffs were pursuing personal injury claims suffered by them while using the premises for its intended purpose – skiing. Both had signed waivers of liability.
The plaintiffs were successful at the Superior Court in arguing that the waivers of liability under section 3 of the OLA were voided by relying on provisions of the CPA. They argued that, as the plaintiffs are consumers and ski resorts are suppliers, the contracts they entered into are consumer agreements and, therefore, controlled by the CPA rather than the OLA. A supplier cannot waive liability for services that are not of “reasonable acceptable quality” pursuant to sections 7 and 9 of the CPA. However, the ski resorts are suppliers under the CPA and also occupiers under the OLA.
As the Superior Court decisions were decisions on motions involving questions of law, the applicable standard of review for the appeals was correctness. The Court of Appeal overturned both lower level decisions, finding that the plaintiffs were bound by their liability waivers. This was so whether the plaintiffs’ claims are in tort under the OLA or contract (breach of warranty) under the CPA.
The CPA and the OLA were found to conflict and be irreconcilable. The OLA permits an occupier to obtain a waiver of liability (especially important to operators of recreational activities) whereas the CPA precludes a supplier from obtaining a waiver of liability. The Court preferred the more specific provision of the OLA over the general provisions in the CPA. The Court found that the OLA was intended to be an “exhaustive scheme” regarding the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises. The purpose of the OLA would be undermined if the CPA were to take precedence in such circumstances. The Court held that the OLA supersedes the CPA. Therefore, activities occurring on an occupiers’ premises in return for payment are covered by the OLA. The provisions of the CPA do not apply.
The matters were remitted back to the Superior Court to proceed with the OLA as governing the relationship between the parties.
by Mauro D'AgostinoFailure to Provide Notice to the Insured within 90-days is not Fatal to Priority Dispute
In the decision ofThe Dominion of Canada General Insurance Company v. Unifund Assurance Company, the Court of Appeal has confirmed that the standard of review applicable in priority disputes is reasonableness.
The decision primarily deals with whether the failure to provide notice to an insured within 90-days of receipt of the OCF-1 precludes the insurer from proceeding with a priority dispute. In this matter, notice was provided to the insured after the priority arbitration had commenced (beyond the 90-day period) but before the arbitration hearing.
At the preliminary issue hearing, Arbitrator Novick decided that the 90-day notice period did not apply to insureds, only to insurers giving notice to other insurers. The Arbitrator held that, while insurers should ideally provide notice to insureds at the same time as notice is given to the other insurer, late notice to an insured is permitted, as long as it provides the insured with the opportunity to participate in the process.
The appeal of the preliminary issue decision was heard by Faieta J. of the Superior Court, who concluded that the applicable standard of review was correctness. He held that failure of the insurer to provide notice to the insured within the same 90-day notice period was fatal to the priority dispute.
A three-judge panel of the Court of Appeal reversed the decision of Faieta J. and restored the decision of the Arbitrator. A reasonableness standard was applied. The Court noted that the Arbitrator was a specialized decision-maker engaged in interpreting her home statute and regulation.
In determining the Arbitrator’s decision was reasonable, the Court of Appeal found that the failure to give notice to the insured within 90 days did not ignore the policy objectives of the Regulation. It did not affect the insured’s right of prompt receipt of accident benefits, nor did it affect the insured’s participation rights in priority disputes, held to be procedural rights. In addition, the late notice had no impact on the rights of the second insurer in the priority dispute.
The Court determined that it was up to the Arbitrator to determine whether the notice to an insured was given too late in order for the insured to exercise their participation rights. In the case at hand, the Arbitrator found that as the insured received notice before the actual arbitration hearing commenced and did not object to the transfer of the claim, the late notice was not fatal to the priority dispute. The Court ultimately concluded the Arbitrator’s decision was reasonable – although the notice was late, the lateness was not an impediment to the priority dispute, and the proceeding could continue.
This case is significant because the Court of Appeal has determined that notice to an insured of the priority dispute in excess of the 90 days is not necessarily fatal to a proceeding. The analysis is now whether the lateness of the notice to the insured precludes their ability to participate in the priority dispute.