Canadian Underwriter and Law Times report on OLA waiver decision
Beard Winter LLP litigators and partners John Olah and Robert Betts are quoted in the Canadian Underwriter article, “Legal victory for insurers, as appeal court upholds waivers” and in the Law Times article “Decision has significant impact on waivers” about a case that John Olah successfully argued before the Ontario Court of Appeal, on February 7, 2018.
Excerpt from Canadian Underwriter:
In two separate Ontario Superior Court actions, the lower court ruled in 2017 that Elizabeth Woodhouse and David Schnarr could sue Snow Valley Resorts and Blue Mountain Resorts, respectively. They were novel rulings, with the judge’s finding that, under Ontario’s Consumer Protection Act, waivers are void if they negate a requirement under CPA to provide a product of “reasonably acceptable quality.” But under the same circumstances, ski resorts can sometimes use waivers to defend against personal injury lawsuits under the Occupiers’ Liability Act.
Those rulings had “really upset decades of case law and waivers, where insurance companies and resort operators could use these waivers as full-stop defences,” said Robert Betts, the Beard Winter LLP lawyer who defended Blue Mountain.
The March 28 appeal court ruling “has essentially righted the ship and put things back to where they were prior to the lower court decisions,” added Betts. The ruling is “great news for liability insurers, particularly any liability insurer who deals with the recreational industry.”
Excerpt from Law Times:
In Schnarr v. Blue Mountain Resorts Limited, the Court of Appeal heard two cases together that involved injured skiers bringing lawsuits against ski resorts after having signed agreements waiving the facilities’ liability in the event they got hurt.
Lawyers say the decision has significant implications for waivers, in particular when it comes to the sports and recreation industry.
“Waivers are designed to explain the risk to the participant and insulate to some degree the facility from being sued because you can’t have a recreational facility being sued every time somebody gets injured,” says John Olah, one of the lawyers representing Blue Mountain Resorts.
Olah, a senior litigation partner at Beard Winter LLP, says the decision means that waivers are valid and will serve as effective defences as long as the activity falls under the Occupiers’ Liability Act.