Moving the Goal Posts: 2020 Developments in Sports and Recreation Liability
by Grant Ferguson, Laurie Graham | Oct 20, 2020
Sections 3(1) and 4(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) import duties on occupiers to take some care to see that patrons are safe while on the premises. The duty is not absolute. In the case where s. 3(1) applies, the risk must be foreseeable by the “reasonable” system in place. Under s. 4(1), the risk must involve a “reckless disregard to the presence of the person on the premises.” This year, cases in these areas have moved the goalposts on these standards incrementally in favour of defendants.
However, occupiers also have to address the enforceability of exclusionary language in waivers and what the standard should be in higher risk sports. In these areas, the goal posts have moved in another direction. This movement supports caution in the use of older liability waivers. It also increases the likelihood of liability if the rules of the game are not strictly followed.
Section. 3(1) Foreseeability: Onley v. Town of Whitby (2020 ONSC 20)
The plaintiff was a member of a soccer team playing a night game at an outdoor park in the Town of Whitby. The field lights were turned on in advance of the game and showed no external signs of damage or malfunction. Midway through the game, the plaintiff sat down on the grass behind the bench, in close proximity to a field light pole. She felt a sudden shock upon getting up. She briefly continued to play before collapsing and being taken to hospital by ambulance, and reportedly suffered pain and scarring in her legs, feet, as well as PTSD.
The Court accepted the pole was malfunctioning due to melted insulation from a lighting strike weeks before the game. No deficiencies were noted during the last pre-game electrical inspection conducted jointly by the Town and the ESA 40 days prior to the game.
The Court preferred the lightning strike theory over the plaintiff’s maintenance theory, which was raised only at trial.
In discussing foreseeability for the accepted cause, the Court adopted the standard of the Supreme Court of Canada in Rankin v. JJ. The Court accepted that light poles damaged by lightning “almost always exhibit some overt indication of malfunction.” This external indication was absent here, making it a highly unusual occurrence. There was no basis for liability on the Town.
The Court also rejected that a more rigorous maintenance program was the answer. The Court found that such a rigorous maintenance program required evidence that stray voltage had been a past problem. The Court otherwise accepted that it would not be cost effective and distinguished between streetlights and soccer field lights that were used less frequently and so required less rigorous testing.
This case reinforces the standard for foreseeability and that it is the plaintiff’s burden to discharge that standard. Where a hazard is unusual, invisible, and an exception to an existing system of inspection (particularly one supported by a governmental authority), the defendant can successfully defend with a reasonable system on the question of foreseeability.
Section 4(1) Foreseeability and Assumed Risk: Karpouzis v. Toronto (City), (2020 ONSC 143)
This was a summary judgment motion granted in favour of the City of Toronto for injuries sustained by a man who was injured riding a skateboard at 2:00AM down an unlit paved path in South Humber Park.
The park and trail were maintained and inspected by staff of the City but only during the day. At night, the trails were not lit deliberately. Upon riding into a tree-lined portion of the path covered, the wheels of the plaintiff’s skateboard suddenly froze up. He presumed that his wheels jammed with debris. The plaintiff’s expert opined the light level in the park would have been below human perception. The plaintiff struck his head on the ground and suffered a brain injury.
This case was assessed under the standard of s. 4(1) as it was a recreational trail. The standard was a lower one: that the City not show “disregard” for the plaintiff’s after-dark usage of a paved trail.
Perell J. held that pedestrians in the circumstances of the plaintiff do not need to be warned of obvious conditions, such as darkness during the night. Additionally, the City did not show disregard for inherent risks by keeping the trail open to the public at night, even if that meant debris might be present and unseen. “Normal risks” of the plaintiff’s activity included encountering debris or locking wheels. As the accident was caused by those elements deemed foreseeable to the plaintiff before entry, he willingly assumed those risks.
So long as regular inspections are performed for the type of hazard in issue, weekly frequency (in particular) is sufficient for a s. 4(1) environment. There is no breach of standards when the conditions those standards create are reasonably known before entry into an area. In this case, the foreseeability of the risk encountered was assumed by the plaintiff, who could not then recover despite potentially significant damages.
Liability Waivers and Obvious Risks: Hosseinkhani v. QK Fitness Inc., (2019 ONCA 718)
The plaintiff sustained a burst vertebrae fracture after slipping on a round dumbbell during a fitness class that she had taken bi-weekly for 8 months. At the instruction of the fitness instructor, the plaintiff set her dumbbells beside her low-stepping exercise block. When the plaintiff was instructed to step off the side of the block, she stepped on the dumbbell, which had rolled away from where she had placed it. She did not anticipate that in her evidence. She had also signed a standard waiver of liability as a condition of her gym membership.
Analysis: Exclusion of Liability Clause
The Court threw out the exclusion of liability clause. Such a clause was contemplated for use by s. 5(3) of the OLA. This section permits restriction on occupier’s duty of care when “the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person.”
Examples of valid clauses all included bold, colour headings. Successful examples stated “Please Read Carefully!”, “The Conditions Will Affect your Legal Rights Including the Right to Sue”, or “Individual Waiver of Public Liability- Warning.” In this case, none of those types of headings were present. There was no evidence from the employee who witnessed the waiver and so no basis for the attention requirement of s. 5(3) to apply. Without specific attention given the waiver, it was found useless.
Analysis: s. 3(1) Obvious Risks
There was no issue that s. 3(1) applied, as the plaintiff was an invitee of the defendant.  The question was whether there was negligence in not warning about the use of round dumbbells or the lack of instruction to lay the dumbbells specifically on their ends.
The defence advanced the position that there was no warning required for “obvious risks”. Risks were obvious if they could be figured out without “unreasonable risk of harm.”  The ability to forget about a risk does not create a duty to warn. 
The Court accepted that there was no evidence that the round dumbbells were inherently dangerous. They had been used thousands of times without incident and several times by the plaintiff herself. “An occupier does not have to warn an adult about obvious risks.”  That round things rolled did not need to be spelled out for the plaintiff.
The Court of Appeal, in 2020, affirmed this decision. As such, the standard for exculpatory language will be a high one, though advice is conveyed in the judgement. While that did not carry the day, the Court still applied a generous definition of what was “obvious.” Absent a past history of risk, and outside of a sport requiring considerable skill, patent risks of injury are not compensable.
The “Fair Play Doctrine” in High Risk Sports: Casterton v. MacIsaac, (2020 ONSC 190)
The plaintiff brought an action for an in-game collision with the defendant, a player on an opposing hockey team. The plaintiff was knocked off his feet, hit his head and lost consciousness. He claimed he was blindsided. The defendant claimed it was an accident. There was conflicting evidence, but it was accepted that the defendant was moving and the plaintiff was not.
The standard of liability was reviewed and its evolution traced by Justice Gomery at trial. A distinct movement was noted to a lower standard for plaintiffs since 1965, when they needed to prove definitive resolve to cause serious injury.
Analysis: The Fair Play Rule
The Court relied on the rules of the game. Once the characterization of the hit was matched with the definition of a “blindside” (based on the plaintiff’s expectations and the movement of the players), the Court accepted that the rule of the game determined such actions “are absolutely prohibited.” By virtue of the defendant having injured the plaintiff with an illegal move, there was liability on the defendant. Nothing else was necessary to prove liability and the Court accepted the hit was neither intentional nor reckless.
The standard for liability in a physical sport has evolved over the last 30 years. This case confirms the trajectory to lowering the standard for successful negligence in contact sports to any violation of “fair play” leading to injury. Personaly injury in sport will likely continue to be a source of liability cases for injuries created around acts that, while foreseeable or unintentional, lie outside of the rules of the game.
 Onley v. Town of Whitby, 2020 ONSC 20 [Onley].
 Karpouzis v. Toronto (City), 2020 ONSC 143 [Karpouzis].
 Onley, supra note 1 at para 62.
 Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19.
 Onley, supra note 1 at para 83.
 Ibid see para 110.
 Karpouzis, supra note 2 at para 35.
 Ibid at para 67.
 Ibid at para 85.
 Karpouzis, supra note 2 at para 90.
 Ibid at para 85.
 Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 at para 8 [Hosseinkhani].
 Hosseinkhani, supra note 12 at para 64
 Ibid at paras 69, 70, 73.
 Arif v. Li 2016 ONSC 4579
 Trimmelitti v. Blue Mountain Resorts Limited 2015 ONSC 2301
 Ibid at para 80.
 Ibid at para 85.
 Ibid at para 90.
 Ibid at para 93.
 Ibid at para 97.
 Ibid at para 99.
 2019 ONCA 718.
 Casteron v. MacIsaac, 2020 ONSC 190 at para 114.