On January 10^th, 2020, the Ontario Superior Court of Justice released its decision in Casterton v MacIsaac, [2020] ONSC 190 [Casterton] awarding $702,551 to the plaintiff. This is a case involving two recreational ice hockey players – Drew Casterton (the injured plaintiff) and Gordon MacIsaac (the defendant who collided with the plaintiff). The incident in question occurred on March 15, 2012, and was heard by the court in August of 2019.

This decision was founded in negligence law, so I will begin with an overview of what it means to be a negligent sports participant. I will then review the assumption of risk doctrine, which is a defence that is normally invoked in sports negligence cases. After reviewing two Ontario precedents that are factually similar to Casterton, I will engage in a critical discussion on the Casterton case.

What does it mean to be a negligent sports participant?

Negligence is also known as an unintentional tort. It allows plaintiffs to argue that an indirect application of force caused injury to their person. When a sports participant files a lawsuit against another participant for negligence, they are claiming that the defendant failed to exercise due care in a situation where it is reasonably foreseeable that their conduct might harm the plaintiff (for an in-depth discussion on the elements needed to prove negligence, see Dennie & Young, 2019).

Put simply, the defendant is liable in negligence if the plaintiff successfully proves that the defendant’s actions failed to respect the standard of care applicable in the circumstances (Barnes, 1996; 2010). The appropriate standard depends on the role of the defendant and the nature of the activity in question. The standard of care imposed by law is an objective one, meaning courts will turn to the ‘reasonable person’ test. This test in the context of hockey was adopted by the British Columbia Court of Appeal in Unruh v Webber, [1994] B.C.J. No. 467: “The standard of care test is — what would a reasonable competitor, in his place, do or not do. The words “in his place” imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue” (para 31; emphasis in original). 

Once the plaintiff has successfully proven that the defendant acted outside the scope of what a reasonable competitor would do, it falls on the defendant to provide a defence. There are two common defences in negligence cases: (1) The plaintiff waived their right to a claim in negligence by assuming the risks by voluntarily participating in the game (the voluntary assumption of risk doctrine); and (2) The plaintiff contributed to their own negligence (the defence of contributory negligence). The first is a complete defence which operates to defeat liability, while the second is a partial defence that operates to reduce the amount of damages awarded. The assumption of risk doctrine is based on the legal maxim volenti non fit injuria, meaning there is no injury done to the willing person and has two distinct meanings.

Voluntary Assumption of Risk as a defence

To engage this defence, the defendant must prove that the plaintiff willingly ran a risk that was fully understood, and thus agreed to waive their right to a claim in negligence. The assumption of risk can be explicit according to the written rules of the sport, or implied according to the customs and conventions of the sport that might be unwritten, but known to participants (Barnes, 1996). Implied consent is thus derived from conduct. In other words, while some actions in a sport might be formal rule violations, the participants still assume of the risk of injury arising out of that conduct.

Inherent Risks in Sport

The second meaning of the assumption of risk doctrine touches on the inherent risks in sport. When the injury in question was a result of normal and reasonable game play – action that is inherent in the sport – there is no liability. Such incidents will be viewed simply as accidents (Barnes, 1996). Ultimately, it will fall on the question of whether the injury in question was a foreseeable consequence of the sport. The foreseeability of the injury will be measured against the risks and dangers that are normally inherent in the sport.

What have courts decided on these matters?  

In the context of hockey, courts in British Columbia have traditionally relied on a standard of care based on carelessness. However, in Ontario, courts have been reluctant to introduce a similar standard preferring to rely on a standard of intent to cause injury or reckless disregard for the safety of others.

The difference in the three standards is a question of intent. A standard based on intent is self-explanatory – it refers to a defendant who intentionally caused harm to the plaintiff by intentionally behaving outside the scope of the rules and customs of the game. The recklessness requirement means that the defendant knew their conduct was illegal according to the rules and customs of the sport, and knew that it had a probability of injuring the other player. It is sufficient to demonstrate that the defendant knew or should have known that harm could be a result of their actions, as opposed to the substantial certainty needed in intentional torts. Whereas a standard based in simple negligence, or carelessness, does not require any intent to cause harm or commit a rule violation, and rather it allows a careless act to be sufficient for liability.

There are two Ontario precedents that I want to highlight before discussing Casterton. Like Casterton, they both involve players who filed a lawsuit in negligence for an injury that was suffered during a recreational, non-contact hockey game.

1. Nichols v Sibbick, [2005] OJ No 2873

This case involves recreational hockey players in a no-contact men’s league. The defendant attempted a stick check on the plaintiff (who was positioned to accept a pass and take a shot at the net) from behind, which he missed. Rather, he caught the plaintiff’s left eye, which had to be surgically removed. The court was tasked with deciding whether the defendant was negligent in stick checking the plaintiff from behind.

The court acknowledged that the critical issue is the standard of care applicable in the circumstances. To determine the standard, the court recognized that it must examine the inherent risks of the game. Since the court is bound by the reasonable person’s test, it then asks whether a reasonable competitor in the same circumstances would have done the same thing, or taken extra precaution to avoid the unfortunate injury. In so doing, the Court extensively examined the rules of the league, including the testimonies of the referees with regards to the frequency of such stick checks. It was found that while the defendant did in fact break the rules of the game, and was punished with a penalty, there was no negligence.

The court relied on a previous Ontario decision (Dunn v University of Ottawa, [1995] OJ No 2856) to adopt the following principle: “Even if contact is made outside the rules of the game, there can be no liability unless the player can establish that the defendant knew he was breaking the rules and framed a deliberate resolve to injure or that he was reckless as to the consequences of his actions” [emphasis added] (cited in para 16 of Nichols).

Ultimately, the court decided that without intent to cause harm or recklessness, the defendant cannot be held liable in negligence. Given the speed and body contact inherent in hockey, the plaintiff accepted the risk of the stick check. The court further noted that the no-contact version of the game “does not eliminate the inherent dangers of the sport of hockey. Players will inevitably collide, sticks will inevitably clash, pucks will fly in unforeseen directions” (para 18). There are still considerable risks associated with playing a no-contact version of hockey.

2. Levita v Crew, [2015] ONSC 5316

The Levita decision is equally important since we’re again dealing with players in a non-contact hockey league. And like the Casterton case, the injuries suffered by the plaintiff were a result of a blindside hit.

The plaintiff suffered a fractured right tibia and fibula and claims that he is unable to participate in recreational, household, employment, and athletic activities. The claim is based in negligence on the argument that Crew intentionally or recklessly checked him into the boards from behind in contravention of the rules of play. To get the puck, Crew hit Levita, slightly from behind mere seconds after Levita passed the puck up the ice.  

To determine whether there was negligence, the court undertook an analysis of numerous factors: both players’ hockey histories; the waiver signed by the players for the hockey league; the rules of the league and of the sport of hockey more generally; the penalty system for the league; and player statistics.

Adopting the principle in Nichols, the court accepted that the inherent risks of hockey include bodily contact, even in non-contact leagues. Citing another Ontario decision (Champagne v Cummings, [1999] O.J. No. 3081), the court acknowledged that even non-contact hockey is a “fast-paced, aggressive, and competitive game in which incidents that result in injury can occur quickly and instinctively” (para 85). The court thus found the blindside hit not negligent because it was not intended to cause injury. The court was unwilling to depart from the standard traditionally applied in Ontario decisions. That is, a standard of care based on intent to cause injury, or reckless disregard for the safety of another participant. Without intent or recklessness, there is no negligence.

The Casterton Decision

Fast forward to 2019, and we are facing a very similar situation in Casterton v MacIsaac.

The facts: The score is 5 to 3 for the plaintiff’s team (the Pirates) with a few minutes left to play in the game. Casterton took control of the puck and carried it along the boards to the top right corner of the rink as he continued to skate along the boards behind the net. This is where the collision in question occurred – around the Pirates’ net, along the right side of the rink – they “collided as he [Casterton] emerged just to the left of, and slightly behind, the Pirates’ net” (para 25).

The referee assessed MacIsaac a ten-minute penalty for gross misconduct. A few minutes later, he added a seven-minute penalty for intent to injure, though this additional penalty was added after Casterton’s teammates told the referee that MacIsaac hit Casterton in retaliation for a tripping that occurred earlier in the game. Casterton suffered a concussion, two broken teeth, and cuts on his face and inside his mouth. The lawsuit filed against MacIsaac was for compensation for the losses incurred, including damages for pain and suffering, past and future loss of income, and compensation for the long-term effect on his personal life, his career, and his relationships.

In response, MacIsaac argued that it was an accidental collision after Casterton made a sharp, unexpected left turn, and he denies responsibility. Alternatively, he argues that Casterton is partially to blame (contributory negligence) and claims that the damages are excessive.

The judge determined that the hit was negligent, and there no contributory negligence. Contributory negligence is a partial defence only meaning that, if successful, it will operate to reduce the overall damages by a percentage that is deemed appropriate in the circumstances. For this defence to apply, the defendant must prove, on a balance of probabilities, that the plaintiff failed to take reasonable precaution for their own safety and has thus contributed to the extent of the harm caused to their person (James, 2017). In arguing that Casterton chose to wear a visor instead of a full cage and that Casterton was a chronic cannabis user, it was not enough to prove that Casterton contributed to his negligence. MacIsaac is ordered to pay the following damages: $63,000 in general damages; $199,512 in past income loss; and $440,039 in future income loss.

Discussion

This decision raises a few questions regarding the standard of care. But what is striking is not what’s in the decision, but what’s missing from it.

The Casterton decision moves Ontario away from its traditional reliance on a standard based on intent or recklessness. Unlike the precedents set in Nichols and Levita, which found no liability because there was no intent or recklessness, the court in Casterton found negligence regardless of whether there was intent or recklessness.

What is noteworthy in Nichols, and what is missing from the Casterton decision, is that the court explicitly noted: “The court cannot ignore instinctive competitive reactions that will emerge in a tight, fast-paced game” and, “[i]t is not every careless act causing injury that will give rise to liability. It is only careless acts outside the risks assumed that can be the foundation of such liability but that is a question of fact for each case” (para 20). In other words, the court must determine on case-by-case basis whether the act in question fell outside the inherent risks of the game. 

Similarly, in Levita, the court deemed that despite participating in a non-contact league, contact does happen. And it is an assumed and expected risk of the game that body contact in contravention of the rules might occur. The court stated that, “the physical contact between the players which took place in this game occurred in the course of play and fell within the accepted inherent risks. Insofar as the contact was intentional, Levita impliedly consented to being body-checked in the course of play, even where that body-check might warrant a penalty” (para 98) and found no liability on Crew. There was no evidence that Crew intentionally injured Levita, and that was the standard needed for liability.

In Casterton, the court simply states that, “even if I concluded that the hit was neither intentional nor reckless, […] MacIsaac would be liable for Casterton’s injuries because he failed to meet the standard of care applicable to a hockey player in the circumstances. Every player who testified stated that a blindside hit to the face is and was outside the bounds of fair play” (para 123).

Ultimately, besides the fact that the judge decided a hit to the face can be considered a blindside hit… there are two primary issues with this decision:  (1) There is no empirical analysis of what constitutes “fair play” in hockey (the judge relies solely on witnesses who were party to the game in question, though the judge does acknowledge team loyalty can be problematic); and (2) Past decisions have said that even if action warrants a penalty on the ice, it does not inevitably mean there was negligence. This means that an on-ice rule violation alone is not enough for a finding of liability.

The court relied on the Kempf decision to make the final decision (Kempf was an Ontario decision involving cyclists, not hockey players). Yet, in Kempf, Justice Laskin reinforces the notion that “[c]onduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play,” which suggests that an empirical examination of what constitutes “fair play” is warranted in this case. And this would inevitably mean exploring the inherent risks of the game (effectively applying the second meaning of the assumption of risk doctrine described above).

Past decisions took the time to recognize the speed and amount of body contact allowable in hockey (even in non-contact leagues which are still aggressive and competitive games); the instinct of players in certain situations; and the fact that not every careless act causing injury gives rise to liability. Precedents also examined things like player histories and statistics; the waivers signed by players; the rules of the league in question in addition to the rules and customs of hockey more generally; the penalty system of the league; and the nature and frequency of the injury. Yet, very few of these elements are explored in Casterton. For Justice Gomery, the mere fact that Casterton was skating with his head down, and the fact that MacIsaac anticipated the hit by having his arms raised was enough to prove negligence.

Note that a blindside hit from behind was not enough to prove liability in Levita. Which begs the question of whether the Casterton decision was made regardless of intent or recklessness due to the seriousness of head injuries.

In past decisions, courts typically take the time to diligently examine the prominence of the nature of the injuries in hockey. For example, in a case involving an amateur hockey player who was rendered quadriplegic, the court extensively reviewed the nature of spinal injuries in hockey and the policies from the hockey league that touch on player safety around such injuries (Unruh v Webber). Yet, there is no examination of head injuries in hockey in the Casterton decision despite the growing evidence that concussions are commonplace in the game. In discussing the concussion litigation that came out of the National Football League as well as the National Hockey League, several legal experts are suggesting that it is difficult to argue that athletes don’t accept the risk of conduct causing concussions when playing (Standen, 2014; Goodfellow; 2017). The fact that so many hockey players suffer from head trauma due to concussive collisions actually works in favour of the defence: it is difficult to argue that one did not assume the risk of an injury that is “an omnipresent aspect of the game” (Standen, 2014, p. 79).

The fact that we are dealing with hockey players in a non-contact league should not reduce the importance of this since most concussions actually occur within the rules of hockey during regular, non-violent body contact (Donaldson et al., 2013). And it has also been long accepted by Ontario courts that the non-contact version of hockey does not eliminate the risk of body contact as evidenced by the precedents set in Nichols and Levita, among others. Which demonstrates the need for greater analysis around the collision, and whether it was in fact beyond the scope of what’s reasonable for a non-hitting hockey game.

Ultimately, it comes down to this: if the court in Levita found no negligence, and zero compensation, after a blindside from behind causing serious injury because there was no intent or recklessness, is it reasonable to say that a blindside hit to the face is enough to warrant one hundred percent liability on the defendant in Casterton requiring them to pay $702,551?

The fact is that this is a life-changing amount of money for a defendant to have to pay. It is thus crucial that the appropriate standards be applied, which includes a proper analysis of the inherent risks of the game, to inform the final decision.

It is not certain whether this kind of analysis would have been successful for the defendant in the Casterton decision, but it is surprising that so many factors are missing from the arguments and the final decision. Though perhaps the biggest question mark after this decision is how it might impact future litigation in Ontario. The Casterton decision clearly deviates from the traditional standard put in place by Ontario courts, which required evidence of intent or recklessness. Rather, the court in Casterton allowed a finding in negligence for a collision regardless of whether it was done intentionally or recklessly. Given the prominence of head injuries in hockey, will we begin to see more hockey players take their cases to court for the careless act of other participants who make contact with their heads?

References

Barnes, J. (1996). Sports and the Law in Canada (3^rd ed.). Markham, ON: Butterworths.

Barnes, J. (2010). The Law of Hockey. Markham, ON: LexisNexis.

Dennie, M. and Young, K. (2019). Complexities in Canadian Legal Approaches to Sports Injury. In Young, K. (Ed.). The Suffering Body in Sport: Shifting Thresholds of Pain, Risk and Injury (141-161). Bingley, UK: Emerald.

Donaldson, L, Asbridge, M, and Cusimano, M. (2013). Bodychecking Rules and Concussion in Elite Hockey. PLOS One 7(1).

Goodfellow, J. (2017). The NHL Concussion Litigation: Much Ado About Not So Much. In Kurlantzick, L. (Ed.). Legal Issues in Professional Hockey: National and International Dimensions (215-254). Academica Press: Pal Alto, CA.

James, M. (2017). Sports Law (2^nd Ed.). Basingstoke, UK: Palgrave Macmillan.

Standen, J. (2012). Assumption of Risk in NFL Concussion Litigation: The Offhand Empiricism of the Courtroom. FIU Law Review 8(71).