Cox v. Miller (2024 BCCA) ("Cox") is narrowly centered on recreational sports, and the duality of permissive play in comparison to careless actions.
However, the significance of the British Columbia Court of Appeal's decision simply cannot be understated: Injuries derived fromreckless and dangerous acts are risks not consented to by players of the game. As such, injuries sustained despite the actions being expressly permitted by the rules of the game may still result in individuals being found liable in negligence.
Insurers should be wary that this decision may affect the legal landscape concerning accepted risk and accidental harm, with particular regard to Occupiers' Liability Act actions for recreational centres and lifestyle clubs. Despite an individual having accepted some risk in participating in a recreational activity, such as a Pilates class at the local fitness club, actions that fall within the accepted scope of the activity may still result in a finding of liability if the participating individual were to sustain a serious injury.
Further, the action need not be inherently reckless for a finding of liability to arise, as long as a reasonable individual would find the action went beyond the permissive scope of participation.
Background Facts
Jordan Miller (the "Appellant"), and Karl Cox (the "Respondent"), were on opposing teams of a recreational soccer match. The Appellant slide tackled the Respondent from behind, causing the Respondent to fall forward and dislocate his right shoulder. Witnesses testified that the Appellant's tackle was overly aggressive and without a chance of winning the ball.
Although slide tackles are permitted under FIFA rules, the trial judge deemed the Appellant's tackle "reckless and dangerous" and "outside the accepted rules of play." The court held that the Appellant's actions went beyond whata reasonable player would do in a recreational league made up of players of all different skill levels.
In the Court's analysis, the existing standard of care test was adopted1, otherwise understood as the "reasonable competitor" test. The Court queried, "what a reasonable competitor, in his place, would do or not do" and determined that an individual in the Appellant's situation would not have attempted the tackle at issue.
The Court emphasized that players are only able to consent to reasonable conduct from opponents, considering the game's rules and context. The trial judge found the Appellant's tackle to be outside accepted rules in that the action did not fall within the purview of behaviour a reasonable player would expect to encounter during the game. As such, the action was found to constitute a breach of the duty of care owed to other players.
The Appellant was found liable for causing the Respondent's shoulder injury due to the slide tackle.
The Appeal
The Appellant's arguments considered the proper application of the standard of care, and the consequential finding of negligence.
The Appellant contended that slide tackles were permitted within the rules of the game, and therefore any carelessness in execution should not warrant liability. Further, that liability for negligence should only arise if the tackle violated the rules of play. Therefore, only intentional or reckless acts resulting in harm should lead to liability.
The Court rejected the above arguments, determining that the trial judge did not premise his findings of carelessness in the context of a permitted play, but rather, the trial judge concluded that the Appellant's actions were objectively "dangerous."
The Court also considered the referee's on-field decision during the game. The referee only issued a yellow card instead of a red card. The Court queried whether this decision implied that the player's tackle, while potentially flawed, technically stayed within the rules of the game. However, the Court found that the card color was "at best, a non-decisive factor." While the referee was in charge of the match, the Court affirmed the role of the trial judge as "the final referee."
The Court also held that carelessness outside assumed risks could give rise to liability. The Court highlighted that the dangerous nature of the tackle, irrespective of its permissibility, justified the finding of negligence.
The Court confirmed that negligence may arise from carelessness in executing permitted plays, certainly when the actions at issue pose undue risks to other players.
The Current Ontario Regime
While the Cox decision is certainly significant, it is important to note that current Ontario case law continues to favour implied consent as players are assumed to have accepted some risk of accidental harm, as affirmed in Levita v. Crew (2015 ONSC)2 ("Levita").
In Levita, the Court concluded that the defendant player, although "clearly overly aggressive", had not acted maliciously or "out of the ordinary or beyond the bounds of fair or expected play", It seems that individuals involved in recreational sports in British Columbia will encounter a significantly less substantial burden of proof of actionable injury: it will be sufficient in British Columbia to simply show a failure to adhere to the relevant standard of care, while in Ontario, intentional conduct (or at least recklessness) is required.3
Key Takeaway
Cox serves as a stark reminder that simply following the rules does not absolve players of their responsibility to act reasonably as compared to their peers. Players should be cautious that winning is not everything and should be mindful that even permissive actions that could and/or can result in serious injury should be reasonably avoided.
So, take the field with passion, but remember, fair play is not just a moral choice, it's a legal obligation.
Footnotes
1. Unruh (Guardian at litem of) v Webber, 1994 CanLII 3272 (BCCA).
2. 2015 ONSC 5316 (CanLII).
3. Lorne Folick, Michael Libby, & Paul Dawson, Sports and Recreation Liability Law in Canada (Toronto: Thomson Reuters, 2017), at 285-286.
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