No Negligence or Overly Aggressive Action in Hockey Game - Levita v Alan Crew et al., 2015 ONSC 5316 (CanLII)

February 14, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

No Overly Aggressive Action in Hockey Game - Levita v Alan Crew et al., 2015 ONSC 5316 (CanLII)

DATE: 2015-09-01
HEARD BEFORE: Firestone J.

On November 20, 2006 Robbie Levita sustained a fractured right tibia and fibula while playing recreational hockey Levita seeks damages from True North and a player from the opposing team, Alan Crew. Levita claims that he is unable to participate in recreational, household, employment and athletic activities. He seeks general non-pecuniary damages in the sum of $100,000 to $110,000 as well as special damages consisting of a subrogated claim on behalf of Great West Life in the sum of $4,422.73 for benefits paid by it to Levita under a group plan.

Levita claims that Crew intentionally or recklessly checked him into the boards from behind in contravention of the rules of play in the league, causing Levita to fall into the boards. Levita claims that True North knew or should have known that Crew was a dangerous player, and failed to take adequate steps to protect the safety and security of players in the league.

For the reasons that follow this action is dismissed.

The defendant True North is a recreational non-contact hockey league. True North games are non-contact, which means there is no body checking, cross-checks, or shoving into the boards permitted. True North’s market is men who enjoy playing hockey but still need to be able to go home to their families and get up for work the next day.

Levita joined True North in 2000 and testified that he specifically chose True North because he wanted to play a safe form of hockey in which he was unlikely to get injured. He spent the first part of the season in what amounted to a “hockey school”, and focused on drills and practising skills. Once he and his teammates graduated from that program, they formed a team that became the “Buds.” The Buds began playing at division “E”, which signifies the lowest skill level in True North. As the years passed, the team ascended levels to eventually arrive at division “A”, the highest skill level. This was the level at which they were playing the night Levita was injured.

Crew’s Hockey History

Crew played hockey in a house league in Mississauga from the time he was about five or six. He played in house league until he went to university then at around 24 years old playing in recreational leagues.

The Waiver

True North is a non-contact league however playing hockey carries an inherent risk of injury. Consequently, True North required every player to sign a waiver indicating that:

I am aware that participation in True North Hockey Canada activities, events, tournaments, games, hockey school, practices and/or programs has, in addition to the usual dangers and risks inherent in the sport of hockey, certain additional dangers and risks including, but not limited to, the danger and risk of collision with other participants and/or man made objects (sticks, pucks, boards, ice), and I freely accept and assume all such dangers and risks and the possibility of personal injury, death, property damage or loss resulting therefrom. In consideration of the arena and True North Hockey Canada and the Sponsors permitting my participation in the aforementioned event/program/game I hereby agree as follows:

1. To waive any and all claims that I may have against the Arena, the Sponsors, True North Hockey Canada and their directors, officers, employees, agents and representatives, and any volunteers in any way associated with the event/program/game, (all of whom are hereinafter collectively referred to as “the releasees”);

2. To release the releasees from any and all liability for any loss, damage, injury or expense that I may suffer or that my next of kin may suffer as a result of my participation in the event/program/game due to any cause whatsoever, including any negligence, breach of contract, breach of statutory duty of care, or breach of the occupiers’ liability act on the part of the releasees;

3. To hold harmless and indemnify the releasees from any and all liability for any property damage or personal injury to any third party, resulting from my participation in the event/program/game;

4. […] In consideration of my participation … I hereby acknowledge that I am aware of the risks and hazards associated with or related to ice hockey. The risks and hazards of ice hockey include, but are not limited to, injuries from

-         Collisions with the rink boards, hockey nets, and ice;

-         Being struck by hockey sticks and pucks;

-         Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed.

…

I am of the full age of 18 years and I have read and understand this release of liability prior to signing it, and I am aware that by signing this release of liability I am waving certain legal rights which I or my heirs, next of kin, executors, administrators and assigns may have against the release[e]s.

This waiver was signed at the beginning of every season. Players testified that it was passed around the change room before the first game, and each player signed his name on the bottom of the sheet. The waiver was also available on True North’s website. No representative from the league explained the terms of the waiver to the players.

Levita signed the waiver for the 2006 winter season on September 18, 2006.

A plain reading of the waiver confirms it is a contract between True North and Levita. Crew is not a releasee under the waiver.  It waives or releases  “any and all claims that I [Levita] may have against the Arena, the Sponsors, True North Hockey Canada and their directors, officers, employees, agents and representatives, and any volunteers in any way associated with the event/program/game, (all of whom are hereafter collectively referred to as ‘the releasees’)”.

True North has a policy and procedures manual which in part states:

a)      If a player accrues 30 or more penalty minutes, the player is suspended for one game;

b)      If a player accrues an additional 10 minutes in penalties, the player is suspended for a second game;

c)      If a player accrues an additional 10 minutes in penalties, the player is suspended for the remainder of the regular season including playoffs.

Each time a player reaches one of these “plateau levels,” there is an investigation by the league.

True North representative Mr. Edgar testified that every time a major penalty is called, the games supervisor (i.e. the person who runs the clock) makes a notification on the game sheet and writes about the incident in their report. The referee who made the call also writes a report at the end of the game. The offending player is then not allowed to play again until the incident is investigated and discipline has been determined. The way that the penalty is dealt with depends on that player’s history, i.e. whether they had been in trouble before. A player who has been in trouble before will be given a greater sanction.

Edgar also testified that the league keeps statistics on the players and teams and will not hesitate to disallow a team from continuing to play in the league if they are playing overly aggressively or have accumulated too many penalties. Edgar testified that he has done this only five to six times in over 25 years. He noted that True North will also look at registrations as they come in for each season. Edgar testified that:

We’ll look at a team’s penalties, and if they’re in the 200 minute range, then they have no business being in our league and we would not let them back, or we would cherry pick, we would say, “Okay, well, maybe you can come back, but this person and this person and this person, we don’t want them back,” and often they’ll agree and kick those players off the team in order to just continue to play with the league.

When asked about the kind of acts that violate the “no contact” rule, Mr. Edgar testified that these acts include checking and intentionally shoving another player with the intention to be “more forceful.” They also include stick work (using stick as a weapon) and slashing.

When asked about the penalties given for checks from behind, Edgar testified that, “[I]f it’s deemed a check from behind, we don’t want to see a two minute minor called… it should be at least a four minute [double minor] or a major.” When asked about the kind of acts that violate the “no checking from behind” rule, Stringer testified that checking can attract different penalties depending on the degree. Checking from behind can attract a minor penalty if it was minor in nature.

Edgar testified about the distinction made in the rules between the intent to injure and other penalties, saying: “[I]ntent to injure is about the worst thing you can do, where you’re doing something that…. your aim is to hurt someone, that means an instant expulsion from the league.”  Edgar also testified that, even when conduct is an accident, they still call major penalties “because it’s a care and control thing.” According to Edgar, even if the act in question would normally attract a minor penalty, if an injury occurs the penalty will be increased to a major penalty.

Player Statistics and the Knucklehead List

True North posts its players’ statistics online. It also posts a document called the “Knucklehead List,” which is a statistical list for players that rates players and teams by the number of penalties they have earned. It is a way for players to see who has the most goals, who is the best goal tender, and who has the most penalties.  Stringer testified that True North keeps a knucklehead list for each individual division and for each region (Toronto and Brampton).

Both Levita and Crew rated highly on the Knucklehead List at various points in their hockey careers. Prior to that incident, Crew had never had any major penalties or match penalties and there had never been any supplementary discipline against him. While Crew was on the divisional knucklehead list roughing. rew was number nine on the knucklehead list for “body contact, unsportsmanlike conduct, body contact, high-sticking.” Stringer testified that this was nothing out of the ordinary. Crew had four game ejections over four years, which can occur as a result of accumulating three minor penalties in a game.  Edgar testified that “having like, four game ejections over four years is nothing. Nothing to even talk about.” In the winter 2006-2007 season, the season in which Levita was injured, Crew made it to number one on the knucklehead list due to the penalties he received from the incident.

For his part, Levita made it onto the knucklehead list as well. According to his statistics, he received penalties for boarding, roughing, hitting from behind, unsportsmanlike conduct, and slashing. In the summer 2004 season, Levita was number six on the knucklehead list (that same season, Crew was number 14).

evidence therefore shows that, as far as can be shown by penalties and statistics Levita arguably played more aggressively than Crew.

Issues

The following issues are raised in this case:

1. Was Levita’s injury caused by Crew’s intentional act to injure or by Crew’s negligence?
2. Was Levita’s injury caused by True North’s negligence?
3. Does the waiver constitute a defence for True North?
4. Does volenti constitute a defence for True North?
5. What is the appropriate assessment of damages?

Levita

Levita argues that he was injured a result of Crew’s intentional and/or reckless act in checking Levita into the boards from behind and that True North was negligent in that it failed to provide a safe environment, and instead fostered a culture where rough play was tolerated, penalties celebrated, and dangerous play was only seriously sanctioned if it caused substantial injury.

Levita argues that it is irrelevant that True North’s rules are stricter on paper because they are not enforced. Both Levita and Crew acknowledge that rough play was routine and was tolerated. The league, through its inaction, created the culture and environment where the injury to Levita was not only foreseeable but likely. Accordingly, True North is also responsible for the plaintiff’s injuries.

The waiver is not a defence because Levita, although a lawyer, practices exclusively in criminal defence. If the purported intent of the waiver was to release the league from injury caused by battery, the waiver must clearly and unequivocally state that – which it did not.

Crew

Crew argues, first, that the numerous factual discrepancies between the eye-witness accounts of the incident preclude the court from effectively determining whether either of the defendants acted negligently. This especially so considering that nine years have passed since the incident.

Crew argues further that the plaintiff failed to establish that Crew breached the standard of care owed to the plaintiff, and that the plaintiff’s injury was the unfortunate consequence of “hockey play. Crew disputes the plaintiff’s attempt to characterize him as a vicious brute with an intention to injure other players.

Finally, Crew argues that the plaintiff has not established appropriate losses to justify the quantum of damages sought.

True North

True North argues that the plaintiff’s claim against it is without precedent. Never before has a hockey league been sued or found liable for an action taken by a player in a hockey game. Furthermore, True North argues that it met the standard of care it owed to Levita and that in any event, Levita signed a wavier that released True North from the very claims he now makes.

True North points to its extensive rules and penalty system, which is stricter than the system recommended by the CHA. True North also points to its qualified referees, who are certified, trained, and monitored by Mr. Coleman, who himself has 44 years of experience.

Analysis

1. Was Levita’s injury caused by Crew’s intentional act to injure or by negligence?

In a sporting event case such as this it is the ordinary negligence standard which is to be applied in determining whether a defendant is liable. In order for a private law duty of care to exist, “there must be a sufficiently close relationship between the parties so that one could reasonably contemplate that carelessness on his or her part might cause damage to the other” (Kempf ONSC, at para. 72). Crew does not dispute that hockey players owe a duty of care to each other.

The standard of care hockey players owe to each other must be assessed in light of the activity itself. In Rozenhart v. Skier’s Sport Shop (Edmonton) Ltd., 2002 ABQB. The courts recognize that “what constitutes reasonable care will depend upon the perils which a person engaged in an

Negligence law uses the fictional reasonable person. The standard of care in negligence is that of the reasonable person in similar circumstances: see Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 69. A defendant’s conduct is negligent or breaches the standard of care if it creates an unreasonable risk of harm: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114, at para. 7.

As is evident from these formulations, the negligence standard is flexible. Its application depends on who the actors are and what activities they are engaged in. Unreasonableness means different things for children, for professionals, for persons with mental disabilities, for motorists and so on.

The risks parties assume depend on the nature of the activity in which they participate. The risks one assumes playing a sport differ from the risks one assumes when going for a morning run or walking to work. In sports, the 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. A body check – even one that calls for a penalty – or contact fighting for a rebound in which the opposing player is called for a foul is part of the ordinary risk of each game. Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play. See e.g. John Barnes, Sports and the Law in Canada, 3d ed. (Toronto: Butterworths, 1996), at p. 279.

In other words, the ordinary negligence standard is sufficiently flexible to accommodate the different risks inherent in different sports and sporting activities. There is no need to exempt sports participants from the application of ordinary negligence law.                

In Unruh (Guardian ad litem of) v. Webber (1994), the British Columbia Court of Appeal accepted the following features of hockey as informing the appropriate standard of care in a hockey game, at para. 31:

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 the standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue. [Italics in original; underlining added.]

1. The inherent risks in the game of hockey include bodily contact. This is the case even in a non-contact league. It is therefore widely accepted that, by agreeing to play hockey and accepting its inherent risks, a player also accepts or gives his implied consent that there is some risk of injury. However, the law is consistent that certain acts go well beyond what is acceptable.

Reckless conduct also falls outside the inherent risks of the game and is therefore outside the standard of care. There is no implied consent to injury resulting from other players behaving with “a demonstrated recklessness or a lack of regard for the consequences of one’s actions” (Dunn v. University of Ottawa, 1995 CarswellOnt 3170. This type of reckless conduct can constitute negligence on the player’s part. Such a determination depends on the factual matrix of each individual case.

In summary, the risks that a hockey player assumes are the following:

• A hockey player assumes the risk that he may suffer injuries from acts by other players that occur in the course of play, i.e. for the advancement of the game, but are not intended to inflict injury.
• A hockey player assumes the risk that he may suffer injuries from acts by other players that are in contravention of the rules of the game but are not intended to cause injury.
• In some circumstances, a hockey player assumes the risk that he may suffer injuries at the hand of other players from acts that occur outside the course of play, i.e. not for any advancement of the game, if such injuries are not the result of recklessness (i.e. actions taken in an uncontrolled or undisciplined manner) or an intention to cause injury. In a fast-paced game like hockey, it is highly possible that an action may “begin” when the game is on, and that action may have been undertaken to advance the game. However, by the time the action is fully executed, the game may have stopped or the moment may have passed.
• A hockey player never assumes the risk that he may suffer intentional or reckless battery by another player in a non-contact league.
• The degree of risk a hockey player assumes can also be assessed in light of the type of league itself and the level or style of play that normally takes place in that league.  In St. Laurent, the court found that the defendant’s actions justified the roughing call made by the linesman but did not fall below the standard of a reasonable competitor in his place, and wrote “in reaching that conclusion I have taken into account the nature of the match itself and the level of aggressiveness within the league” (at para. 40).

A finding of negligence follows if Levita proves that Crew breached the standard of care by engaging in conduct which fell short of what a reasonable hockey player participating in a hockey game in the parties’ league would do or refrain from doing, taking into account the nature of the game and its inherent risks to which the players willingly consented. Contributory negligence is not an issue in this case.

There is insufficient evidence to find that Crew’s intention in skating into Levita was to injure him.

2. Was Levita’s Injury Caused by True North’s Negligence?

Given that Crew is not liable for Levita’s injury, True North cannot be held liable either.

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