Recreational Sports League Injuries

Unsurprisingly, lawsuits arising from injuries sustained during a hockey game are not uncommon in Canada.

Indeed, there is an extensive history of case law regarding recreational hockey league injuries that dates back to the 1960’s. Since that first case, the courts have evolved in their approach; from requiring evidence to harm for rewarding damages to applying the general rules of negligence.

The most recent development in these types of cases was in Casterton v. MacIsaac. In this case, Drew Casterton collided with Gordon MacIsaac and, as a result, suffered a concussion, two broken teeth, and cuts to his face and inside of his mouth. Casterton stated the injuries he suffered had a dramatic, long-term impact on his personal life, career, and relationships. He claimed general damages for pain and suffering, past and future income loss, and punitive damages.

To decide this case, the first issue the court had to decide was whether or not MacIsaac was liable for the injuries suffered by Casterton. To make this decision, Justice Sally Gomery consulted the extensive case law around recreational hockey league injuries.

Case Law Regarding Recreational Sports League Injuries

Over time, the courts have evolved in their approach to settling personal injury cases involving recreational sports league injuries. Where they once required evidence to support an intent to harm, they now apply the general rules of negligence, albeit, adapting these rules to a sport where injury is almost inevitable.

The first case regarding injuries sustained during a hockey game was Agar v. Canning (1965). In this case, Justice Bastin concluded that, because this sport involves violent body contact as well as blows from pucks and hockey sticks, a hockey player assumes a risk of physical injury when they engage in the sport. Players accept the risk of accidental harm and therefore waive any right to claims of injury. However, Bastin also explicitly stated that players have a right to a claim in situations wherein another player deliberately sets out to injure them.

In 1991, the Sexton v. Sutherland case changed this approach a bit and concluded that hockey players do not explicitly consent to the risk of injury simply by engaging in the sport. As such, they did not need to prove an intention to injure. But in Unruh (Guardian ad litem of) v. Webber (1994), the B.C Court of Appeal set out a test for liability for injury during hockey play. They based this test on classic standard of care principles: if an individual is injured during a hockey game, they do not need to prove either an intent to injure or reckless disregard. They must only demonstrate that the injury was the result of conduct that fell outside of what a reasonable competitor would expect in the circumstances.

Kempf v. Nguyen involved a recreational bike race but the results have been applied to case law for recreational sports league injuries including those sustained in hockey games. In this case, the appeal panel declined to rule on whether the standard of care during a race was negligence or recklessness. But, most importantly, this case expressed the view that, while players assume some risk of injury, even contact intentionally inflicted or in breach of the rules, contact crosses the line into unacceptable when that contact is malicious or beyond the bounds of fair play. In the most recent case prior to Casterton v. MacIsaac, the court agreed that the standard of negligence applies for injuries sustained during recreational hockey games.

The Issue

Justice Gomery adopted the reasoning of these last two cases to Casterton v. MacIsaac. She stated that hockey players implicitly consent to the risk of injury insofar as this is a fast-paced and sometimes violent sport. This consent applies to the risk of injury from another player, even serious injury. However, that consent is not unlimited, and a player is not expected to accept the risk of injury from malicious conduct, conduct out of the ordinary, or conduct beyond the bounds of fair play.

The analysis of Justice Gomery therefore began with a review of the evidence around the circumstances of the injury. Specifically, Gomery looked at whether or not the conduct of MacIsaac could be considered malicious, out of the ordinary, or beyond the bounds of fair play. She reviewed witness testimony, as well as testimony from both Casterton and MacIsaac, to determine whether MacIsaac deliberately blindsided Casterton.

Justice Gomery found that MacIssac either deliberately attempted to injure Casterton or was reckless about the possibility that he would do so. She further stated that, even if she did not find the hit to be intentional or reckless, the test set out in Kempf would find MacIssac liable. This is because, regardless of intention or recklessness, MacIsaac failed to meet the standard of care applicable to a hockey player in the circumstance. As such, Justice Gomery found that MacIsaac was liable for the injuries of Casterton.

The Conclusion

Canadian case law around recreational sports league injuries, and specifically, recreational hockey league injuries, has evolved since the first case in 1965. While this case law holds that hockey players accept some degree of risk simply for their participation in a physical and often violent sport, they do not consent to injury that results from conduct outside the rules of fair play.

In this most recent case regarding injury sustained in a recreational hockey game, we see that case law has evolved from having to prove either intent to injure or reckless disregard to simply having to demonstrate that the injury was caused by conduct outside of what a reasonable competitor would expect.

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