During 2016 and 2017, nearly 18,000 Canadians were hospitalized after suffering a sports injury, according to the Canadian Institute for Health Information (CIHI). In addition to taking the fun out of otherwise enjoyable activities, sports injuries also occupy a unique place in Ontario personal injury law.
Specifically, obtaining a legal recovery for an injury sustained while playing sports is often complicated by the fact that by voluntarily engaging in the sport, you have often consented—either expressly through a formal waiver or implicitly—to certain types of risks.
Because of that rather unique treatment of sports injuries, it is all the more important that injured Ontarians consult a personal injury lawyer to understand their rights following a sports injury.
Article at a Glance
Article at a Glance
- Sports injuries raise two issues that other injuries typically don’t: implied consent and waiver.
- Whether a player has implicitly consented to an injury risk depends on the rules of the sport being played.
- To be effective, a waiver must be specific as to the types of injuries covered. Otherwise, it won’t be enforceable in Ontario.
Our personal injury lawyers can meet with you for a free initial consultation. Call 1-877-573-3563
Top 5 Sports Activities That Lead to Hospital Visits
According to the CIHI report, the five sports activities that led to the most hospital visits in Ontario during 2016 and 2017 (after a blanket category for falls on ice) were:
Legal Rights Following a Sports Injury
Sports injuries, like other injuries in Canada, can give rise to a right to compensation if the injury was caused by another person’s intentional or negligent act. But individuals injured while engaged in sports generally face at least two hurdles that, say, those injured in an automobile accident do not face: the concepts of implied consent and waiver.
Implied Consent in Ontario Sports Injuries
In ordinary, everyday life, Ontario law defines a battery as an intentionally harmful or offensive contact with someone—such as a shove or a punch. Likewise, a person who negligently causes another person injury through contact (such as by colliding with him or her) can be held liable.
But in many sports, such contacts, intentional or otherwise, are part of the game. The law recognizes this distinction between everyday activities and sports activities through the concept of implied consent: A person implicitly consents to the types of injury risks inherent in a sport, and so cannot hold another person liable for injuries arising out of such risks.
Note that implied consent only applies to the risks inherent in a sport, meaning that a court’s analysis of the scope of consent is flexible, taking into account the rules and physical requirements of each sport. As one Ontario judge has put it:
[T]he risks one assumes vary depending on the sport. The risks assumed in a sport where physical contact is part of the game, such as hockey or basketball, differ from the risks assumed in a sport where there is no physical contact, such as tennis or road cycling.
In hockey or basketball, for example, players have to assume some risk of injury from bodily contact, even contact intentionally inflicted or in breach of the rules of the game. . . . Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play.
Waiver in Ontario Sports Injuries
If an injury is not covered by implied consent, it may nevertheless be covered by an effective waiver, making it impossible to successfully sue for compensation. Organizations that put on sporting events, as well as the owners of venues where such events take place, generally require participants to sign a waiver before they can participate.
A waiver is a contract that says you agree to give up the right to hold any person responsible if you become injured while participating in an organized sporting event. We’ve discussed waivers before, because Ontario gyms also rely on them to avoid liability under the Ontario Occupiers’ Liability Act.
As in that context, sports waivers must meet certain minimum requirements to be effective. In particular, the wording of the waiver must be specific as to what risks and dangers are covered by it. Any ambiguity in the language is interpreted against the party relying on the waiver.
Example: In Leonard v. Dunn, Leonard and Dunn collided in a game of no-contact hockey. Although a referee blew his whistle to stop the play, Dunn then punched Leonard in the face, causing him to lose two teeth. A waiver in the case purported to cover injuries caused by blameless or negligent conduct, but not intentional conduct. As such, it did not prevent Leonard from suing Dunn.
Injured While Playing Sports in Ontario?
Personal injury claims in Ontario are always a bit complicated, but when an injury occurred during sport, seeking compensation becomes even more complicated. Defendants in such cases routinely rely on the concepts of implied consent and waiver to prevent an injured plaintiff from recovering anything.
For the best chance at defeating those defences and obtaining the compensation you deserve for a sports injury in Ontario, you should contact a personal injury lawyer like those at Preszler Law Firm. We offer a free consultation, so you can explore your options and learn how a lawyer can help. And if you choose us to handle your case, you don’t pay unless and until we win your case.