Beard Winter LLP litigators John Olah and Robert Betts are quoted in TheLawyersDaily.ca article, “Consumer law cannot be used to strike down valid waivers under Occupiers’ Liability Act, court rules” about a case that John Olah successfully argued before the Ontario Court of Appeal, on February 7, 2018.
John Olah, of Beard Winter LLP and counsel for Blue Mountain with Robert Betts, said there are two salient points that spring from this decision: that the OLA and CPA are in conflict, and s. 93(2) of the CPA cannot be used to save a waiver.
“The court said 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. So if it’s an issue or matter that relates to the Occupiers’ Liability Act it’s exempted, or carved out, from the Consumer Protection Act,” he explained.
“This has tremendous implications for the sports and recreation industry which has relied on waivers. Waivers have been a staple of Canadian law for close to 75 years, so this case re-establishes, certainly in the context of the Occupiers’ Liability Act, the right of occupiers, especially with sports with an inherent risk, to have waivers,” he added.
Betts noted that this decision offers practical solutions for lawyers as the court held that the OLA is a “complete code.”
“The Occupiers’ Liability Act was brought into existence to codify all the liability that an occupier would have and when you start encroaching on that domain and using the Consumer Protection Act to attack occupiers, the court shut that concept down,” he said.